Thursday, July 17, 2014

Attack of the oxygen suckers

They're everywhere, you know. We lawyers seem to attract them, but they can be found in every walk of life, every nook and cranny of our daily existence.

An oxygen sucker is any person who demands -- and requires -- everyone's attention.

Every lawyer who's been in practice for more than a few weeks has a story of the client who provides maybe 1% of the lawyer's fee income -- and takes up 99% of his or her time.

No amount of hand-holding or reassurance is ever enough. Not only does the oxygen-sucking client sap the lawyer of energy and strength, he or she costs the lawyer money. Other clients, anyone who needs any attention, drift away, miffed.

Sometimes lawyers are the oxygen suckers.

Last week, while a colleague was on vacation, I agreed to be 'on call' for her office. My colleague had done her best to schedule all matters out of the week she planned to be out but she's a real estate attorney -- and emergencies crop up.

Sometimes the emergencies aren't.

Aren't emergencies, that is.

My colleague had a matter where the buyer's financing fell through at the last moment (this happens in 100% of real estate closings as far as I can tell, but my colleague assures me that the true number is much lower -- maybe only 90%). Anyway, my colleague and her client took the bad news in stride and rescheduled the closing -- with everyone's agreement, you understand, including the buyer's attorney -- to this Monday, when my colleague would be back in her office.

Somehow, though, the buyer's attorney decided, late last Wednesday, that this matter would have to close on Friday, before my client returned.

Now, it's true, banks can stall forever on approving a loan -- but then, when they fund the loan, insist -- demand -- that the closing come together in 24 hours. Banks are institutional oxygen suckers.

But, in this case, the bank still had not funded the loan. There was no "clear to close." The buyer's lawyer insisted, however, that he would have funding by Friday and that the sale must close by that date. His client was a single mother, he said, and prone to breaking down in tears because of the delay.

The delay caused by her bank, but whatever.

Here's the way this works: The real estate lawyers schedule closings when -- and only when -- the bank says it has money. When the bank puts that in writing. When the bank gives the "clear to close." In a disturbingly large number of these cases, even after the bank has said, in writing, that it has the money it "pulls the package" or the loan "gets questioned by the underwriter" and the money isn't there when all the lawyers and clients and Realtors (the only ones who actually make money from real estate closings) show up.

The buyer's attorney didn't have anything in writing. One of the Realtors -- his, undoubtedly -- understood that there was a "clear to close," but she also had seen nothing in writing.

That did not stop this man from calling my colleague's office five, six, seven times on Wednesday afternoon and another 25 times on Thursday morning, demanding that the closing proceed on Friday. After trying to move mountains to accommodate him -- the uncertainties of his financing notwithstanding -- my colleague's office had finally concluded that there was no way they could get an attorney to the closing and they told him that the closing would have to take place, as scheduled, as scheduled by contract amendment, on Monday. (I was covering another closing downtown, supposedly -- it ultimately fell through -- isn't that a surprise?) But he wouldn't take 'no' for an answer. He kept calling. He successfully sucked all the oxygen from my colleague's office -- her staff was actually feeling harassed -- and I was asked to intervene.

I said, sure, have him call me. I'd put him right. But my colleague's staff was so rattled, they couldn't find my office number -- even though I call over there nearly every day. Instead they gave out my cell phone number.

Now, perhaps, you're the sort of person who answers their cell phone no matter who calls. Me? I'll talk to my wife. Or one of my kids. Or if I've specifically told someone to call that number (because I'm not in my office). Otherwise, no. If I don't recognize the number, I don't pick up. I have voice mail on the cell phone -- I couldn't find a way to disable it -- which says, "Please don't leave me a message here. I won't listen to it. Call my office instead. I'll listen to the voice mail there. If you don't know my office number, you shouldn't be calling this number anyway, so just hang up." (That may not be the message verbatim, but it's close. My kids can't decide if that's hilarious or horrifying.)

Anyway, I ignored the unknown call when it came in -- and then I figured out who it must have been. A quick bit of snooping on the Internet gave me the attorney's email and I sent him a very nice, polite we're-closing-on-Monday-so-stop-calling note. I put my office number on the email.

Sure enough, he called me. Pouty. Put out. Hurt. "I'm sorry," I began, but he interrupted. "Don't say you're sorry because you're not. You don't care." OK, I said, I won't say I'm sorry. But we'll close Monday. And -- wonder of wonders -- the calls stopped. Mostly. He insisted that the closing be set first thing Monday (that would have been my first guess) but then he had to call to reschedule it to later in the afternoon.

Today the oxygen suckers were an out-of-state lawyer and a prospective client. I had talked with this dynamic duo in March -- at the request of my sister-in-law Josephine, really. Her husband, Ferdinand, is best buddies with the PC. I quickly saw why they get along. They both have the same sort of creepy, over-the-top, touchy-feely pseudo-religious patter. The good news for me was that the PC had his own lawyer in Pittsburgh and I talked with the lawyer -- who seemed relatively normal -- and I volunteered some suggestions for how they might proceed in the suit (which was filed here in Chicago).

A brief conversation with the PC was enough to reassure me that he couldn't afford his friend in Pittsburgh, much less the both of us. So I didn't mind that these two dropped off the face of the earth from mid-April until the last day of June. That's when I heard from the PC again. Had the lawyer called me? he wanted to know. Well, we both want to talk to you, the PC said, and we will. Soon.

"Soon" turned out to be yesterday. First the PC called, then the lawyer. Apparently the matter was up in court this morning and, they were wondering, could I wander over and ask for more time for them to do whatever they were going to do?

Well, I can beg and grovel with the best of them -- but I know an out-of-state lawyer can't represent anyone unless he is admitted to practice pro hac vice. Pro hac vice is a Latin phrase which means, roughly, we'll let you in once, but only for this case and don't even think of opening up an office here and competing for business with the rest of us.

Here is how a little knowledge can be a dangerous thing. I knew that motions for admission pro hac vice used to be made to the trial court by local counsel. I knew, too, that the rule had changed so that these motions were no longer to be brought. I hadn't actually read the new rule -- I didn't care about the new rule because no one had hired me on as local counsel. The PC couldn't afford it, remember?

But -- if it would make Noche Buena dinner less awkward because I was helpful to Ferdinand's bestie -- I wouldn't mind being pressed into service to stepping up in court. I like to go over to court.

Still, I needed to know what to say. Did you ever get your pro hac vice appearance straightened out? I asked. Oh, yes, the attorney said. It took longer than expected, but all the paperwork was finally done.

The lawyer had questions, too. Do they really charge for an Appearance in Chicago? the lawyer asked. Is it one fee for all three defendants (the bestie, his wife, and their corporation) or do separate fees have to be paid for each? Just one fee, I said. That's a relief, the attorney said. (If the client can't cover the filing fees, how the heck is he going to cover anybody's bill... no matter how reasonable? But I didn't press the point.) The lawyer had served his Answer, he told me, but the Clerk didn't file it because he hadn't paid for an Appearance. And he was going to call opposing counsel and make sure he had the Answer, and let him know I was coming.

And over I went this morning.

That's when all the oxygen got sucked out of my day.

The case wasn't called. It wasn't called because a default judgment had already been entered against the PC and the other defendants -- a default judgment because nobody had appeared or answered or, apparently, made the arrangements he said he'd made.

And that's when I figured out I'd better look at the new pro hac vice rule. Because I was afraid the Pennsylvania lawyer really hadn't.

Hoo boy.

Yes, the rule has changed so that local counsel doesn't have to bring a motion to the trial judge -- but there still has to be local counsel. To an outsider looking at the situation... well, someone might conclude that I was supposed to be local counsel. And that would make the default my fault.

Oh, brother. I went into full defensive lawyering mode. I disclosed the default judgment to the lawyer and the PC, explained how it can be vacated (if somebody does something in the next 10 days or so it'll be easy -- after that it will be well nigh impossible), and pointed out that the out-of-state lawyer had either not obtained permission to appear in this case or misrepresented himself (and, more important, from my selfish standpoint, misrepresented my involvement) to the Illinois Attorney Registration and Disciplinary Commission. After explaining that he has to hire local counsel under the rule, I told the out-of-state lawyer that I could not be that person.

I gave a couple of reasons. I'm about to start work on another appeal -- this is true -- and it will take up a lot of my time in the coming weeks. And I said I can't afford any 'off the cuff' clients at this time -- I have a full book of non-paying clients already. This, too, is true. Sadly. I said there were other reasons besides, which I chose not to disclose.

But you know one of them: After today, if this lawyer told me it was raining, I'd run to the window and expect to see bright sunshine. I don't need to get teamed up with folks like that. I was diplomatic as hell (I think I was, anyway) but I left no wriggle room. I don't care if dinner is awkward on Christmas Eve. I have a license to protect.

But, in the meanwhile, all the oxygen got sucked out of my day.

1 comment:

Anonymous said...

this just reminded me of something that I heard from one of my nephews many years ago. he and his wife were considering a divorce. he came to talk to me one day and in the course of our conversation I asked him if he wanted to tell me what the problem was that was causing this divorce after 17 years of marriage. well he told me... she lies, and she lies really bad, as in, if she wakes me up in the morning and tells me the sun is shining, I have to run to the window and look out and I already know it's going to be pouring down rain...