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Posts Tagged ‘ethics’

Links I’m Reading Today, October 28, 2011

  • Fundamentalism Corrupts (The Bronze Blog)
  • Everything (xkcd: “I want to give you everything, just to see what you would do with it.”)
  • It ought to be up to Americans to decide what is true! (Pharyngula)
  • Treating Americans as nothing more than piles of money has consequences (Where’s the Outrage?)
  • MRAs are almost as hilarious as creationists (Pharyngula)
  • The Cop Who Shot Scott Olsen (a Poem) (Booman Tribune)
  • Clifford Winston’s Case for Abolishing the Requirement that Lawyers Must get Law School Degrees and Pass the Bar Exam (Volokh Conspiracy). I would point out that this makes as much sense as turning medicine over to people without medical licenses, but then I remembered that we already do that.

Photo credit: earl53 from morguefile.com

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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.

——————————–

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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Please, bacon, don’t look at me like that…

I love bacon.

Perhaps more accurately, I am fixated on bacon.

Bacon flowchart. Source unknown.

Due to some new resolutions to get in shape, I find I must abstain from my usual diet of putting bacon in everything, alas. But today, I learned something upsetting.

Okay, it’s something I already knew from reading John Robbins’ book Diet for a New America back in the ’90s, but it’s also something I put out of my mind when I stopped being a vegetarian about 7 years ago.

Pigs might be smarter than dogs.

Why, you might ask, is that upsetting?

Would you eat your dog?

I really hope the answer to that question is “no,” and if it isn’t, please don’t tell me. I know that I would not eat a dog because I know dogs are smart, sociable, friendly, and companionable. We also have certain cultural designations for our domesticated animals: pigs and cattle are “livestock,” while dogs, cats and ferrets are “pets.”

The basic rationale for this distinction is that livestock animals are pretty dumb, and best suited for use as food. Except what if they’re not all that dumb?

“[Pigs are] very curious, and they’ll charge off on their own,” said John Webster, a professor at the University of Bristol in England. “They will investigate the world with their noses down and batter through like a small boy.”

New research shows that chickens can be taught to run the thermostat of the chicken coop, and that even the lowly cow has a surprising inner life.

Cows have been known to form lifelong friendships, and one recent study found that they actually show excitement when they’ve learned something new “as if they’re saying, ‘Eureka, I found out how to solve the problem,’ ” said Donald Broom, a professor at the University of Cambridge.

Also, it turns out it is not that uncommon to keep a pig as a pet. Many people keep chickens in Austin, although I assume more for eggs than for companionship. A cow might be problematic as a pet, especially if you have a small yard or live in a high-rise condo.

I once read (I forget where, so add a [citation needed] in your mind here) that most livestock animals would not survive long in the wild, as they have been bred over thousands of years to serve specifically as livestock. True, I cannot imagine a chicken would survive long in the wild if there are any weasels around, and a cow might make a tempting target for drunk frat boys coyotes or wolves. The ancestor of the modern cow, the aurochs (known to fans of George R.R. Martin) was pretty bad-ass, at least until it was hunted to extinction. Does that mean we have to eat them, though?

Public domain image

Not pictured: Robert Baratheon with a spear

So what does this all mean? Am I going to follow on my refusal to eat squid and octopus by also refusing to eat pork products?

(As a side note, I am a big fan of squid and octopus, and I suspect that they will be the ones to succeed us as the dominant intelligent species on earth should we mess this whole thing up. I for one welcome our new cephalopod overlords!)

Copyright unknown. Fair use applies.

Not pictured: The lamentations of their women.

The real question is whether we can make arbitrary distinctions about what animals to eat based on cultural history (i.e. dogs are pets, cows are food). Please note that I am not arguing in favor of eating dogs for intellectual consistency. But do I return to some form of vegetarianism, even if I made a mess of it the first time I tried it? Is vegan the way to go, on the theory that if you shouldn’t eat animals then you also shouldn’t manhandle their breasts (for milk) or muck about in their bird uteri (for eggs)? Should animals get legal protections similar to humans, sort of like the way Spain extended legal protections to apes?

I’ll think about it. You think about it, too. I’m going to go watch Charlotte’s Web and have some bacon while I consider my options.

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Can contract lawyers practice ethically?

A malpractice suit filed earlier this summer by JM Eagle alleges that McDermott Will & Emery failed to adequately supervise the contract attorneys they retained to do document review, leading to privileged documents related to JM Eagle’s case being released. This is one of those cases where reams of scaremongering missives by lawyers hyping the ethical risks of a given area of practice turned out to be correct–e-discovery actually is pretty difficult.

E-Discovery is a discipline.  Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter.  Unfortunately, this is simply not true.  Sure, e-discovery is an outgrowth of the rules of civil procedure and every litigating attorney needs to understand the rules.  But e-discovery goes far beyond the rules.  It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI.  The layers of complexity are many.  Indeed, I would argue that there are multiple disciplines within the field of electronic discovery. (Dennis Kiker)

Photo by stevenafcI’m not technologically adept enough to know what all the different forms of digital or electronic information are, but I know they are many and varied. I am entirely receptive to the notion that this is an area of law practice that anyone could just dabble in. At the same time, be on the lookout for seasoned practitioners trying to scare neophytes away more out of self-preservation than ethical concern. Please note, I am not offering any opinion as to the motive of the above-quoted lawyer, Dennis Kiker. The guy certainly knows his stuff, technology-wise. Lawyers should just proceed with caution, particularly into areas of law that deal with technologies few people really understand.

Another question here has to do with the use of contract lawyers. It’s certainly a boon for the law firms: they save on all the pesky job training and perks, and they can even pay much lower than an associate might take home. They also sacrifice control, in that they may not be able to exercise the same supervision over contract lawyers as they would over their own employees. This is not to say that contract attorneys need supervision per se, but there is a responsibility that lawyers have to their clients to know everything being done for the client on their behalf. A common meme in the legal blogosphere of late has been how outsourcing legal marketing = outsourcing ethics. Outsourcing functions traditionally performed by associate attorneys can also lead to outsourcing of ethics as well. Again, most contractors are probably very professional and responsible, but the point is that the lawyer no longer has final say over how the work is done, and therefore no control over some of the lawyer’s ethical obligations. Note that the contract lawyers in question are only named in the lawsuit (pdf) as John Does.

With this many warnings and ethical pitfalls, it’s no wonder lawyers are so stressed out. To answer my own question posed in the title to this post, of course contract lawyers can practice ethically. the real question is how to apportion the ethical risk among the lawyers involved in a case. The lawyers who use contract attorneys still have to review everything those attorneys do, since their name is ultimately the one on the signature line. The case discussed here allegedly resulted from inadequate supervision.

How do we fix this problem? I’m working on it. Stay tuned.

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Wishful thinking doesn’t build a law practice

Photo by Tiara at www.sxc.hu

Face it, we're long overdue for a visual lawyer joke (photo by Tiara at www.sxc.hu)

My friend Debra Bruce (a/k/a the Lawyer Coach) has an article at Law.com: “From Associate to Solo — Don’t Overestimate Your Value.” She discusses how young lawyers tend to overlook many of the expenses, both in money and time, associated with being a young lawyer. I can certainly relate to that. Law practice, as it turns out, is not necessarily the quick road to riches that it may seem to be.

You may dream of being your own boss, running a lean and mean shop with a lot less overhead than your current organization. With the technological advances of the last few years, that is undoubtedly an option. Just don’t underestimate the three crucial responsibilities in the success of any law practice: client development, collection of fees and taking out the trash.

Well, you may not really have to take out the trash, but you will have a lot of administrative duties that hinder your ability to rack up billable hours. Almost all businesses wind up writing off some accounts receivable, and for most lawyers, it takes a lot longer to bring in new clients than they expected.

I don’t want this article to dash your hopes and your belief in yourself. I want it to encourage you to do some realistic assessment and planning so that you don’t end up dashed on the rocks.

It is by now well-known that I have soured somewhat on being my own boss. There has been a steep learning curve in the realm of running a law practice, something law schools tend not to teach. Those” administrative duties” in the above quote certainly do pile up. Every profession has its unique expenses. Law has insurance, continuing legal education, and all sorts of other ethical compliance issues. Marketing is particularly tricky for lawyers, who cannot afford to leave their marketing in the hands of a non-lawyer. New York attorney Eric Turkewitz coined the term “outsourcing marketing = outsourcing ethics,” meaning lawyers have such a convoluted code of ethical requirements surrounding our advertising that we can ill afford to leave it to someone not intimately familiar with those rules (bad things have happened when marketing is left to non-lawyers).

Then there is client development. Clients will not just come to you because they need a lawyer and you are awesome. Client development is complicated, and unless you have an immediate family member with a corner office on K Street, it will not happen overnight. What’s more, the market is saturated with new lawyers. You will need to start getting creative, and that does not automatically mean going high-tech.

I started my firm in 2002 with two other lawyers. They had experience from law school doing criminal defense. I had some immigration experience and had worked for a civil litigation firm, so the plan was for them to build criminal practices and for me to develop civil clients. This was before “blog” was a household word, when most computers still had floppy disk drives. So we did our marketing the old-fashioned way: direct mail. Every day, we would get the jail roster from the Travis County Sheriff, develop a mailing list, and print, sign, stuff, seal, and stamp several hundred letters to prospective clients.

It’s not as crazy as it sounds. Not everyone has regular internet access, even today, relying on the mail. We stopped doing it for two reasons: (1) stuffing 250-300 envelopes per day sucks, and we didn’t want to hire staff just yet; and (2) more and more lawyers were sending letters and the rate of return was plummeting. Anecdotally, I heard that in 2002 about 20-25 lawyers in town were sending letters, but by 2004 there were almost 75. Now, everyone is so internet-focused, perhaps snail mail could have a Renaissance. Many people respond quite well to receiving a personalized piece of mail.

poofytoo.tumblr.com

via poofytoo.tumblr.com

Don’t even get me started on collecting fees. I’d compare it to herding cats, but all a cat can do is scratch you.

Personally, I think it is great whenever a young lawyer wants to go solo. The number of resources to assist a new solo grows every day (resources I wish existed, or that I’d known of, back in the day). It’s scary, but it can also be rewarding. What it definitely is not, is easy.

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