Double Threats: Lawyers Who Represent Both Sides

03/21/2010 | The Daily Record Co.

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By Caryn Tamber
Daily Record Legal Affairs Writer

In the world of employment law, there are two kinds of attorneys: management-side and employee-side.

Then there’s Julie C. Janofsky.

“I’ve always believed that you could do both if you’re careful at screening the cases that you do,” Janofsky said.

Janofsky, a partner at Brocato, Price & Janofsky LLC in Towson, may spend the morning representing an employee in one case, then the afternoon representing management in a different case.

She and other lawyers who represent both sides in areas of law where most attorneys tend to stick to one — both franchisees and franchisors, for example, or both personal-injury plaintiffs and defendants — say their diverse practices are not only workable but beneficial. Seeing both sides of the coin helps them get business and represent their existing clients more effectively, they say.

Bar Counsel Melvin G. Hirshman said there is no inherent ethical problem with a lawyer representing, for example, both employers and employees. Lawyers must simply pay attention to the Maryland Rules of Professional Conduct dealing with conflict of interest, he said.

‘Yes, We Are for Hire’

David L. Cahn and Harry M. Rifkin have built an entire practice, Franchise & Business Law Group in Lutherville, on the principle that they are franchise lawyers who represent both franchisors and franchisees. Cahn’s practice leans heavily toward franchisors and Rifkin’s toward franchisees, but both handle both kinds of clients.

Conflicts are not a major problem, Cahn said. Most large national companies have in-house counsel, so Cahn and Rifkin can represent their Maryland franchisees with impunity. For example, Rifkin represents several Choice Hotels franchisees, since Choice has its own lawyers and isn’t a potential client for the firm.

When a franchisee whose franchisor is Maryland-based approaches the firm for representation, Cahn and Rifkin evaluate whether they want to go after the franchisor as a client. If they do, they must turn down the franchisee.

Cahn said he hopes this approach attracts clients who know that if they elect not to hire Cahn and Rifkin, they are likely to find themselves on opposite sides of the courtroom or negotiating table.

“Our approach is ‘Maryland franchising lawyers,’ and yes, we are for hire, and if Maryland-based franchisors don’t want us representing their franchisees, there’s a simple remedy for that problem,” Cahn said. “If we’re with them, we can’t be against them.”

Rifkin said his experience on both sides of the aisle has kept him from becoming an ideologue. “I don’t see franchisees or franchisors as universally evil,” he said. He said that can actually give him leverage in settlement talks, because the other side knows that he’s not out to settle a personal or political score. His balanced perspective doesn’t upset most clients, he said. “They want someone who thinks that particular franchisor, if you’re a franchisee, is bad, but they’re not looking for someone who thinks all franchisors are bad,” Rifkin said.

Still, Cahn said the firm has lost a couple of potential franchisor clients who “preferred to go with a franchisor-exclusive shop,” he said.

The Enemy’s Playbook

Edward J. “Bud” Brown, a civil defense attorney, handles plaintiff-side work from time to time. For example, Brown, who currently serves as president of Maryland Defense Counsel Inc., won one of the largest verdicts of 2009 in Maryland : $7.57 million for a contractor badly burned on the job.

It’s not as strange as it sounds, Brown said. He started out defending fire and explosion cases, which often pit insurer against insurer. He found himself being hired to argue on behalf of one insurer that another’s client had caused the fire or explosion, which led to plaintiff-side work.

Brown, an Ellicott City solo practitioner, said he loves doing both plaintiff and defense work and finds that each makes him better at the other. As a defense lawyer, “it’s easy to guess what it’s like to put on the burden of proof and present a 20-witness case,” he said.

It’s another to actually do it.

“You get your enemy’s playbook before the big game,” he said. “When I played football, I played inside linebacker and offensive guard.”

Brown does take some ribbing from fellow defense attorneys when he wins a big plaintiff’s case, but nothing serious. If he were “the guy who advertises on Channel 54 between the pro wrestling and the hair-growth ad,” perhaps his colleagues would feel differently, he said.

The Sides Also Switch

Janofsky, the employment lawyer, said the most important part of juggling a two-sided practice is being meticulous about avoiding conflicts. That was difficult when she was at a large firm and became the impetus for joining a smaller one, she said.

“In smaller firms, I’m seeing increasingly that attorneys are willing to take either side in the right case, and I say that with the understanding that I have to be very selective in the cases that I take,” Janofsky said. “You can’t take every single case that comes in the door.”

In other words, working for both sides does not mean having to accept any employment case. Janofsky rejects most public-employee cases, for example, because taking them isn’t worth it, she said.

Being open to representing both sides is a sound business decision, because sometimes the sides switch, Janofsky said.

“Many of the best plaintiffs that I represent, such as departing high-level executives, move on to become the employers in their next job,” she said. And most clients do not seem to have a problem with her doing both employer- and employee-side work, she said. “I think the clients, both employers and employees, are much more concerned with what you’re going to do for them in their case than with what you’re going to do with other clients in other cases,” Janofsky said.

Business Decision

Though attorneys like Cahn, Rifkin, Janofsky and Brown find switching sides to be helpful and profitable for their practices, the majority of lawyers in high-conflict practice areas stick to one side. Part of the reason is avoiding conflicts, said Elizabeth Torphy-Donzella, a partner at Shawe & Rosenthal LLP, a Baltimore management-side employment firm.

Andrew G. Slutkin, a personal-injury lawyer, said that applies to his practice area as well. Especially for medical malpractice lawyers, it’s virtually impossible to bring plaintiff-side cases while defending cases for insurance companies, he said. “Insurers tend to think of plaintiffs’ lawyers as the devil with tasseled loafers,” said Slutkin, a partner at Silverman, Thompson, Slutkin & White LLC in Baltimore.

There’s also a problem with representing one side when most of your time is spent encouraging an interpretation of the law favorable to the other, Torphy-Donzella said. “When you represent employers, you are taking positions that will tend to favor employers, and you develop a legal expertise in developing law that favors employers,” she said.

Slutkin echoed that sentiment. “You don’t want to be a medical malpractice defense lawyer and be the one to obtain a $10 million award that challenges the cap when 90 percent of your other cases involve clients who support that cap,” Slutkin said.

Most lawyers could, if pressed, do a good job representing the other side, Slutkin said. “It’s not a competency issue,” he said. “It’s an ‘Is this good for my business?’ issue.”

Attorneys who represent one side of the aisle may also become true believers in the cause, reluctant to work with the enemy. “As a management-side employment lawyer, you come to the conclusion because of the cases that you see that the vast majority of them are either misunderstandings where the person wasn’t wronged … or they really don’t have a claim and they’re manipulating the situation,” Torphy-Donzella said. “Rightly or wrongly, you develop a bias.”

This article has been reprinted with permission of The Daily Record Co. 2010.