The other day a young attorney named Rachel Rodgers wrote a post at Solo Practice University called “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” The post outlines a bit of the tension between older attorneys and the hordes of young lawyers now entering the marketplace and not finding jobs, many of whom are now starting their own practices (this was largely the theme of my post from yesterday, “Too Many Lawyers?”).
It’s a complicated issue, and it’s not even entirely clear what the points of contention are. I have commented a bit at Ms. Rodgers’ post, but the blawgosphere is starting to light up about it. Ms. Rodgers states that:
Professional ethics is supposed to be a code by which we lawyers operate to ensure that we are maintaining the highest level of integrity as we practice law. Unfortunately, many experienced attorneys have taken to using the word “ethics” and all of its connotations as a weapon against any attorney serving their clients in a way with which the criticizing attorney is unfamiliar or does not approve. Sadly, given that young and innovative lawyers are blazing a trail for new ways to both practice law and deliver their services, we tend to be the target for such ridicule. I have even seen some lawyers claim that young lawyers, especially solos, cannot possibly be ethical without the hand-holding (otherwise known as chiding) of more experienced attorneys.
The thing about that is that legal ethics is a pretty vast field stretching back for centuries, and it is often difficult for even gray-haired lawyers to fully grasp it. Technology is fast outpacing ethics rules when it comes to advertising by attorneys–today’s ethics rules are useful for Yellow Pages ads, but not so much for blogs. That said, the question is whether the changes in ethics rules that need to happen can best be achieved through research and deliberation, which is pretty much how it has always been done, or through innovation and experimentation in a free market setting. Lawyers have never been much for a free market when it comes to how we actually practice law. We are not a profession with a great love of risk (quite the opposite, in fact).
Used to be that lawyers would work for someone and then go solo. Now there’s no jobs so lawyers are going from law school graduation, right to the computer to create their law firm twitter account and Facebook fan page, and presto – a practice is born with an “experienced, aggressive” attorney. Today we fake it until we make it, as the marketers encourage young lawyers to do.
I can’t exactly be critical of a newly-licensed solo, since I used to be one (technically I was a newly-licensed shareholder in a firm of three newly-licensed lawyers, but I became fully solo within 3 years, so close enough). At the same time, I have seen quite a few sketchy schemes from solo lawyers, and the value of having a mentor cannot be denied. I think law may be the only profession where brand new practitioners are allowed to jump head first into the pool right away, so maybe we need some sort of apprenticeship system. Just a thought. Matt Brown sums up the concern very well:
No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.
On the other hand, there is much to be said for reevaluating the risk-averse culture of lawyerdom. An extreme, possibly sarcastic example appeared on the blog What About Clients? the other day. A series of mantras, supposedly dating to 1836, appeared in the post “The 7 Habits of Highly Useless Outside Corporate Lawyers”:
1. Be risk-averse at all times. Clients have come to expect this from their lawyers. It’s tradition. Honor it.
2. Tell the client only what it can’t do. Business clients are run by business people who take risks. They need to be managed, guided, stopped. Don’t encourage them.
3. Whatever you do, don’t take a stand, and don’t make a recommendation. (You don’t want to be wrong, do you?)
4. Treat the client as a potential adversary at all times. Keep a distance.
5. Cover yourself. Write a lot to the client. Craft lots of confirming letters which use clauses like “it is our understanding”, “our analysis is limited to…” and “we do not express an opinion as to whether…”
6. Churn up extra fees with extra letters and memoranda and tasks. Milk the engagement. (If you are going to be a weenie anyway, you might as well be a sneaky weenie.)
7. As out-house counsel, you are American royalty. Never forget that.
I have my doubts about the historical authenticity (as does the blog’s author), but it does nicely illustrate how lawyers emphasize the avoidance of risk almost over all else. Quite often, that is exactly what corporate clients hire their lawyers to do. The question is whether that attitude should extend to lawyers’ own businesses. I used to tell my business client that I was their “professional pessimist.” In other words, they started their business to make widgets (or whatever), not to worry about contract terms or premises liability, so they should pay me to worry about it for them.
That’s not a bad way to help a client, but it’s far from the best way to run a business.
It’s not like young lawyers and old ones are fighting in the street. Thus far the debate seems to be limited to blog exchanges and ABA conferences. Sooner or later, the question of new lawyer innovation will butt heads with traditional risk aversion (some might say it has already happened), and it will be fun to watch.