Lawyers and their telephones

You can distinguish generations of lawyers from their relationship with the telephone.

(le sommaire français suit)

I’m not talking about “recreational” use.  That phone-hugging lout, weaving back and forth in front of you through the breakfast cereals aisle at the supermarket, has shortened your life by the time you had to listen to him.  Sadly, public places have become mental extensions of people’s living rooms.  Compared to its omnipresence in the world outside, the decline of telephony in the law office is more subtle and more important to your career.

The desktop telephone reached its apogee as professional tool  in the 1980’s, when the above Bell Telephone commercial, part of a 10-year campaign featuring Canadian actor Larry Mann as “the Boss,” aired dozens of times a day.  You can see in 1982, the phone company was still a monopoly and its only competition was Canada Post, who could communicate a thousand  words for a 25 cent postage stamp.

After having sold Canadians on the virtues of long distance as a cost-effective business expense, in 1983 the Boss sold us the toll-free 800 service, for those whose customers still shied from picking up the phone to call someone outside the area code:

Notice that the earlier commercial has the boss teaching the young associate to use the phone.  In the latter, he has moved on to educate his fellow management-level colleague working out at the gym.  There is a generational morality narrative here.  Telephone equals power, equals rejuvenation.

Why Boomers love telephones

Today, in the mobile phone world, the telephone feature of the handset is but a throw-away feature.  Phones that only do phoning are called elder phones, with big dial pad numbers and small screens. But if you ever wonder why your older law office colleagues spend so much time with a phone pressed against their ear, you have to remember the rise of the phone during their rise to high professional status during the 1980’s.  In the 1990’s, Boomers with money were early adopters of mobile telephones, in part because during their youth (1968-79) car phones were the height of luxury, available to the ultra rich, world leaders and spies (eg. Maxwell Smart’s shoe-phone).  On TV, the President of the United States could pick up a red phone, get a hold of his counterpart in Moscow, and bring the world from the brink of nuclear armageddon.  (A play on the Cuban Missile Crisis.)  Now anyone with an ample disposable income could carry a phone, although it was really a microwave oven you held against your head.

Pavlov’s effect dying out

Even now, when the phone rings, my conditioned response is to drop what I’m doing to answer it.  The insistent sound registers at the same neural target as the cry of a hungry baby.  (You’d think by now they could create a setting so it doesn’t ring incessantly.)  As a  Boomer myself, the almighty telephone still has a hold on me.

Then the generation which came of age during the 1990’s was also the first with Call Display.  Unlike the non-discriminating Do Not Disturb (DND), reserved only for doing something important, Call Display meant you could choose not to answer it, depending on the identity of the caller.  The phone company offered this service so you can ignore the ringing.  In later years, on mobiles, the call recipient could just turn the ringer off.

Taping phone calls

Despite the legality of taping phone calls if one party to a conversation consents, in Canada and in most U.S. states, it is still considered a deceitful practice in the law office.  The legacy of telephony’s importance remains in the entry in the lawyer’s code of conduct against taping phone calls without the other party’s consent.  The Canadian Bar Association’s Code of Professional Conduct and the Ontario Rules of Professional Conduct, demonstrate the Canadian antipathy toward the taping of calls in a lawyer’s practice:

“A lawyer shall not use a tape recorder or other device to record a conversation between the lawyer and a client or another legal practitioner, even if lawful, without first informing the other person of the intention to do so.” (subrule 6.03(4) of the  LSUC text)

The principled basis for this prohibition has come under question in recent years.  The American Bar Association reversed course at the beginning of this millenium.  However, there has been reluctance at the state bar level to do so completely.  The New York City Bar’s response, for example, has been more measured:

“A lawyer may tape a conversation without disclosure of that fact to all participants if the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good. However, undisclosed taping entails a sufficient lack of candor and a sufficient element of trickery as to render it ethically impermissible as a routine practice.”

The effect of this rule for lawyers is reflective of contemporary professional attitudes.  Created during a time when there was a greater chance of lawyers knowing each other and developing trust, the taping of telephone calls would have prevented candid exchanges of views.  We also associated the taping of conversations with the Pandora’ Box of Watergate, that first “gate” of political scandals involving dirty tricks.  The theory of fostering free-flow of exchange was, nevertheless, contrary to the practice in law and media that all conversations are on the record unless the parties agree to speak without prejudice or as “background.”  We see telephone conversations being recorded in notes or file memoranda and introduced as evidence for court motions.  This can lead to an even more tawdry dispute over what lawyers said or did not say on the phone.

In an age when lawyers often do not know each other, fewer are resorting to telephone calls.  Part of it stems from the lack of reliability of the verbal exchange.  Without a record apart from what each side might take down in their notes, many new lawyers see telephone calls as unreliable and ineffective.  Email and SMS text messaging have replaced the telephone call, partly because they obviate the need for simultaneous availability, but also because they leave a clear record of what each side said.

A side phenomenon is the fax.  Despite their love affair with the telephone, Boomer lawyers also share some of the above distrust of each other and send faxes confirming the conversation. In commercial and family litigation, this is often followed by a responding fax, attempting to deny or clarify the confirming fax.  These exchanges can last an entire day, or several days.  In a world of unintended consequences, the prohibition against taping telephone calls means that in today’s world phone calls are often more trouble than they’re worth. It is often more sensible to arrange to meet, and draw up minutes which the parties can then initial.  Or you can just exchange emails.

Modern Telephone Practice in the Law Office

Traditionalists will rightly observe that the telephone imported a whole host of situational rules, especially in business and polite society.  Some law offices required lawyers and staff to view a series of telephone training videos by John Cleese, of Monty Python fame.  For client-relations, this type of training is essential business practice for lawyers because people still value good customer service.  The telephone, like any tool of a trade, is only as effective as the skill of the person handling it.

Lawyer-to-lawyer telephony, however, is not about customer service.  It is a professional tool, and must only be used as a device for carrying our your client’s instructions or protecting your client’s interests.  Here are some basic tips, based on my observance of problems lawyers have got into through the use of the telephone:

  • Use the phone to foster mutual trust with another lawyer, and an atmosphere of candid exchange of views.  All you have to say is, “Can we speak off the record?”  Adopt a practice of never using something the other lawyer said, unless you have reached a consensus.  This is now implied practice among lawyers in Canada.  The element of risk comes from the “I’ll show you mine if you show me yours” gambit which underlies any trust-building social interaction.  Later break the trust, and you’ll be sorry.  If we are brainstorming about resolving a dispute and you later put my rhetorical concessions in an affidavit, I will decline speak to you the next time you call.
  • Confirm in writing (by email) consensual agreements or narrowing of issues arrived at on the phone, but be scrupulously accurate and avoid mentioning antecedent off-the-record elements of the conversation.  You can lose the trust you gained on the phone instantly, if you misstate what you and the other lawyer agreed as a way forward.
  • Do not engage in substantive telephone conversations with unrepresented adversaries.  Get an email address.  If they don’t have email, use Canada Post.  If important to avoid the “I didn’t receive the letter” excuse later on, send it by registered letter, courier or process server.  Expect, by default, that they are probably taping you on the phone.  Observe all rules of etiquette regarding email and other written correspondence.
  • Don’t leave voice mail except to let the other lawyer know you would like to talk, or that you’ve sent him or her an email.  Even trained actors find it hard to talk into a machine.  Unless you really want to rehearse your voice mail message, don’t use it to communicate.  Use voice mail as an alert, to get priority from your colleague who must, like you, read many emails every day.
  • If you want to talk, treat it like a meeting.  Arrange a time that is convenient for both of you.
~  ~  ~

Le téléphone sonne.

Ce que vous faites lorsque vous prenez l’appareil, ça peut dépendre de votre génération.  En tout cas, comme avocat, il vous faut vous méfier du téléphone comme outil de communication.  Nous sommes experts à la communication précise.  Trente ans après ce campagne de publicité de Bell Canada, les conversations téléphoniques sont partout dans les espaces publiques.  Mais non pas dans les cabinets d’avocats.  Quelques mots de conseil:
  • Le téléphone reste une façon d’établir la confiance entre vous et un(e) autre avocat(e).  Mais méfiez-vous de ne pas perdre cette confiance.
  • Confirmez seulement les éléments de consensus, ou des termes d’un différend que vous avez établi ensemble.
  • Évitez les conversations téléphoniques avec les clients auto-représentés.  Communiquez avec eux seulement en utilisant les moyens traditionels et écrits.
  • La méssagerie vocale est une alerte.  Ne laissez pas les méssages sauf pour avertir l’autre avocat que vous voulez parler ou que vous lui avez expédié un mail.
  • Si vous voulez parler, traitez cet acte comme une réunion.  Envoyez les mails pour arranger un rendez-vous comme toute autre réunion.

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