“Will using an attorney to negotiate make things worse?”

Question: Hello, Alan. I want you to know I find your website extremely helpful. I find myself with a question for you.

A few months ago, my boss lied about a project he screwed up. Our department head needs to file a legal document to correct the situation. It is a “sworn statement,” meaning that if anyone lied in it they could be committing the crime of perjury.

In the investigation, I told the truth, which put my boss in a tough situation. Ever since, our relationship has changed. First I received my first-ever bad Performance Review; then I was put on a Performance Improvement Plan (“PIP”). Now I am being told I can either resign or I may be fired “any minute.” I know I am being retaliated against, unfairly.

I have read your articles, and I am thinking about trying to negotiate a severance package, but I am not sure if I should do it myself, or get an attorney involved. If I negotiate myself, I am not sure how well I could handle it, since it’s a legal matter. If I hire an attorney, I am concerned that it will escalate, and involve my employer’s legal department, and that will make the negotiation a really tough battle.

Could you please help me? 

San Francisco, California

 Answer: Dear TS:

Your question is very, very welcome, because it allows me to share with you and others what is an important part of my own legal practice, and something I think very few people, or their attorneys, think of doing. We call it “ghost representation.”   

a. First, it sure seems you have been retaliated against, and probably in violation of law. From the few facts you have provided, it sure seems like you are being retaliated against for being honest in an investigation. Since you mention that cleaning up the matter required a sworn legal document, it seems to me that it was an important matter, and required attorneys, to resolve. For this reason, I am confident that the way you’ve been retaliated against is a violation of your company’s policies, and probably even the law. 

b. Second, for this reason, I do suggest you have an attorney “on your side.” I think that people should try to address workplace problems without using an attorney, if, when and to the extent possible. However, there are times people do need an attorney to understand and address legal issues. Retaliation is an issue with legal underpinnings and importance, and your matter – which seems to have involved attorneys already – seems to me to be one that suggests you have legal assistance.

For individual attention and assistance, I am available for telephone consultations lasting 30 minutes, 60 minutes, or 2 hours. If you would like to set up a consultation, just [click here.]

c. Third, and Most Importantly, no one has to know you have an attorney counseling and “coaching” you. You seem to think that, if you have an attorney, people need to know you do. That is a false assumption. A great deal of the work we do is what we call “ghost representation,” that is, we work behind the scenes, without the employer knowing we are “involved,” (a) analyzing legal issues, (b) coaching and counseling our clients on what they should do or say, (c) even drafting memos and letters for them. When we do this, we are careful not to use “legal jargon” or any words or phrases that would suggest to others that an attorney is “behind the scene.” It gives the client the benefit of our expertise, and, at the same time helps avoid the development of escalating tensions.

When lawyers get involved with other lawyers, regardless of their gender, we so often see what we call “testosterone tournaments,” that is, “I am smarter than you,” then “Well, I am tougher than you,” and then “Well, I can be nastier than you,” and on and on and on. It’s for this reason that we engage in “ghost representation” wherever, whenever and to the extent, we can. 
d. Fourth, if and when you come to an agreement on severance, then you can say “I will have an attorney look at the severance document, to cross the t’s and dot the i’s.” Ideally, if and when you come to an agreement on severance, then you can say, “OK, employer, would you please send me a Severance Agreement? I will then hire an attorney – not to negotiate – but only to review it for technical, legal issues.” This role – even open and visible – is far less likely to cause an escalation of tensions, or to prolong an argument. I encourage you to seek an attorney who will work this way with you, and even suggest it to him or her if he or she has no experience doing this. In many ways, counseling clients is the “highest calling” for an attorney.

As I noted above, I think most people don’t think of “ghost representation” by attorneys, and even most attorneys have not heard of it. However, it works wonders in our law practice, and I recommend it in this situation, for the reasons and concerns you express.

Feel you’ve been retaliated against? Use our “Model Memo Objecting to Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!

I hope and trust this has been helpful. I’m glad you find our blogsite to be of value to you, and hope that you will help us “spread the word” about our blog on Facebook, Twitter, LinkedIn, and other social media. 

Al Sklover

P.S.: One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ultimate Severance Package” consisting of four Model Letters/Memos for severance negotiation, as well as our 94-Point Severance Negotiation Checklist.” To obtain a complete set, just [click here.] Delivered by PDF – Prints Instantly from Your Home Printer!!

© 2011 Alan L. Sklover, All Rights Reserved.

Print Article