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Archive for the ‘Ethics’ Category

A new manifesto for lawyers? Maybe…

Rachel Rodgers, the self-proclaimed 21st-Century Lawyer for Generation Y Entrepreneurs, has put out a “21st Century Lawyer Manifesto.” It proclaims a new ethic, or aesthetic, or something, for the newest generation of lawyers. I think this mostly includes the ones who came of lawyering age in the era of social media and no longer reasonably expecting to have a high-paid legal job upon graduation. The manifesto has 9+ elements (the “+” will be clear soon enough):

  1. We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
  2. We embrace our weirdness.
  3. We will not let being lawyers prevent us from being business savvy.
  4. We will not let our past with tradition rob us of a future with innovation.
  5. We will utilize technology in all of its glorious forms.
  6. We value actual morality over “ethics” rules.
  7. We understand that the true value of money is determined by what it costs us to make it.
  8. We will not live in fear.
  9. We recognize our duty to do epic sh*t now.
  10. [You tell me.]
The lawyer of the future?

The lawyer of the future?

See, #10 is a fill-in-the-blank. It’s a partly-DIY manifesto, making the whole thing delightfully (or obnoxiously, depending on your point of view) meta.

It’s worth reading the whole thing to get the nuance of each element. Overall, I absolutely support utilizing new technologies, rethinking some concepts of “ethics,” and generally shaking up the legal profession. I have no doubt that there will be vehement and altogether predictable retorts from certain lawyers about how unrealistic and irresponsible these newbie lawyers are being.

I see several problems with this manifesto.

For starters, I’m all about being “weird,” but not about being “weird” for weirdness’ sake. Maybe I’ve got that item on the list all wrong, but as lawyers we have a job to do and a broader legal system to represent. While the current system seriously eschews outside-the-box thinking in favor of a rather lockstep approach, that did not happen overnight. In truth, most outside-the-box ideas suck (cf. Sturgeon’s Law). As lawyers, for many of our clients, the stakes are quite high (livelihood, custody of children, liberty, etc.) Clients need to know that we are either using methods that are time-tested, tried, and true, or that we have worked out these new techniques and have the utmost professional faith that they will work. Otherwise, the hypothetical outside-the-box legal tactic doesn’t work, the client gets angry at the lawyer, the lawyer gets sued for malpractice and/or gets dragged before the state bar, CLE presenters use that lawyer as an example of what not to do, and everything goes right back to the way it was before. Being “business savvy” does not always equal being an effective advocate.

For another thing (and I’m not sure whose problem this is) is that replacing the current ethical regime with a broader concept of “morality” sounds awesome on paper. Try it in a contentious divorce case where one spouse wants a peaceful split and hires a newfangled “moral” attorney while the other spouse borrows $25K from a family member and hires the sharp-fanged divorce lawyer who keeps opposing parties’ extremities as trophies. I’ve dealt with divorce lawyers who, while they may be wonderful people with their families at Thanksgiving dinner, seem constitutionally incapable of even recognizing opportunities to peaceably resolve legal disputes. Decades in the nastiest divorce trenches will do that to a person. Long periods of time hearing about the worst of the worst divorce cases can sometimes make judges pretty cynical too. Not all divorce lawyers and family court judges are like this, of course, but a lawyer seeking to inject a bit of “morality” into the process should expect to get chewed up and spit back out, minus a few extremities, more than a few times.

The biggest threat to any kinder, gentler model of lawyering, then, comes not only from other lawyers who don’t subscribe to that ideology, but also from these lawyers’ own clients. Most people don’t have a clear understanding of how the legal system works (I blame lawyer TV shows). The system may be the best one conceived by humanity to resolve disputes, but it quite often sucks. It is inefficient, often unfair, and often mind-bogglingly counter-intuitive.  Clients expect justice, and they do not always understand how difficult (and expensive) true justice is to achieve. Many lawyers go for the illusion of justice through aggressive litigation, and that has become the standard model. Do not think for a second that this type of lawyer would hesitate to pounce on a newly-moral lawyer for any advantage available.

Are these reasons not to try to change the legal profession in ways that would quite possible make it fairer, more “moral,” and a more enjoyable (or at least less soul-crushing) way to make a living? Of course not. These are noble goals. The thing that “21st Century Lawyers” of the Rodgers model need to understand is that the early adopters of this model may end up martyrs to the cause. Good luck to them.

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Ill-timed (and ill-conceived) statement may lead to ethics complaint

I’m no stranger to saying dumb things without thinking. Mine usually come in the form of trying to make a joke too soon, as opposed to today’s story. Let me switch from snark to outrage.

An unbelievably tragic situation in California has bizarrely led to the threat of an ethics complaint against Sacramento lawyer Nabil Samaan. In short, after a bitter custody battle, it appears Mourad “Moni” Samaan and his 2-year-old daughter, Madeline, died in a murder-suicide from carbon monoxide poisoning. As of August 21, police are officially still investigating the cause of death, but murder-suicide is the prevailing theory. This occurred shortly after a court awarded the child’s mother, Marcia Fay, full custody of Madeline.

Marcos Breton at the Sacramento Bee said it best:

It doesn’t matter if husband and wife are bickering and fundamentally divided.

It doesn’t matter if the court system is a terrible arbiter for family disputes.

It doesn’t matter if one side is right and one side is wrong or both sides are right and both sides are wrong.

It doesn’t matter if you feel cheated and betrayed.

There is no justification for taking the life of a child – for taking any life.

One would hope that this is an axiomatic concept in this day and age. Perhaps Samaan was angry at the court system or his ex-wife. What would possibly lead to what he did? It’s a mystery to me, but apparently it’s not to to Samaan’s brother, Nabil Samaan, who had this to say:

I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.

I take issue with words like “right” and “peace” in this instance, but the Center for Judicial Excellence has taken it a few steps further by stating they intend to file an ethics complaint against Nabil Samaan over his statement.

I have to say that, while such statements certainly “shock the conscience,” I’m not sure I see where disbarment would come in. He didn’t say anything that specifically affects an ongoing case in which he is counsel, and he could plausibly claim that his statement is protected by the First Amendment (it’s always the statements we deplore that test First Amendment protections.) It is also entirely possible that he spoke mostly out of grief or shock. I am not aware of any specific rule of attorney conduct that says a lawyer cannot be a complete and total jerk (hypothetically, of course). If there were such a rule, I suspect a great many lawyers would be in trouble.

That said, it’s not like there will not be any repercussions for the guy. I leave the final thought on the matter to ethics attorney Jerome Fiskin, who had this to say: “What kind of people search out an attorney who, um … yeah.”

Could not have said it better myself.

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NOTE: I seem to be writing about ethics a fair amount, so I decided to create a new category for ethics. Now I have to go back and edit all my earlier ethics-related posts. Ugh.

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