Scare ‘Em

Marketer Rachel Rodgers, in her dwindling fifteen minutes of blawgospheric fame, writes:

In conclusion, my point is this: Experienced attorneys stop trying to scare young lawyers half to death with your scary ethics anecdotes about lawyers who were disbarred or suspended due to unethical behavior. Most of the stories involve gross misconduct on many levels and they only serve to disproportionately scare young lawyers when the news tells a very different story about some of the most experienced lawyers landing in jail for fraud, thievery and every imaginable ethical and moral violation. Let’s see you talk about them.

(Miami bar-defense lawyer Brian Tannebaum is on it like a duck on a junebug with A Young Lawyer Rages Against All This “Ethics” Crap; Arizona criminal-defense lawyer Matt Brown talks about the Arizona ethical issues he thinks might face Rodgers’s business model in Unauthorized Practice; Tannebaum is back an hour later with Around The Ethicsphere: Reproductive Law Classes at SPU Cancelled, Arizona Ethics Law May Spell “Oops”; after Rodgers showed the depth of her ethical knowledge by suggesting that lawyers’ “assumptions” about her practice might violate disciplinary rules, Tannebaum challenged her. She met the challenge, but .)

Here’s my answer to Rachel’s conclusion (which “conclusion,” in nontraditional style, is followed by two more paragraphs):

She’s wrong.

Experienced lawyers (“attorney” is a relationship; “lawyer” is a profession: I am a lawyer, but Joe’s attorney) must not stop trying to scare young lawyers half to death with scary ethics anecdotes.

Rachel’s post is typical happysphere fare: scolding someone for doing something, but not naming the perpetrator, much less linking to any
evidence supporting the existence of the problem. On the internet, if you can’t link to it, it doesn’t exist. It’s an argument hanging on a strawman. I don’t believe that experienced lawyers are trying to scare young lawyers with scary ethics arguments.

If I am correct—if experienced lawyers are not trying to scare young lawyers with scary ethics arguments—then they should start.

There are things that some experienced lawyers know, that new lawyers might or might not. (I was tempted to call this post “11 Things Experienced Lawyers Know.”) Things like:

  • Lawyers learn very little in law school that is of any use in practice.
  • The subject of ethics, like most everything in law school, is taught by academics, not practitioners.
  • Getting ethics advice from a law-school professor is like getting sex advice from a Catholic priest.
  • “Ethical” is not the same as “complying with the Disciplinary Rules.”
  • Lawyers risk hurting their clients. (Maybe not all lawyers—the harm that lawyers can do to their clients is proportional to the good they are in a position to do.)
  • Unethical behavior, even if it is not sanctionable, can hurt clients.
  • The chances that a lawyer will slip ethically and hurt her client are infinitely greater than the chances that she will slip ethically and be disciplined by the bar.
  • Some people practice unethically for years, causing great harm to their clients, without ever being disciplined by the bar.
  • Recessionary times make for desperate lawyers.
  • It’s hard to get desperate people’s attention.
  • Nothing gets a lawyer’s attention like the possibility that she might lose her license.

Because we know these things lawyers who give a damn about ethics, clients, and the profession should be terrifying young lawyers, to steer them onto the path of righteousness. Because on the one hand young lawyers are more likely to be desperate than more-experienced lawyers, and on the other young lawyers are less set in their ways than experienced lawyers.

Rodgers’s notion that her bogeymen are not talking about the ethical failings of other experienced lawyers is more fictitious than the bogeymen themselves (see, e.g., John C. Osborne, Steven Rozan), but if experienced lawyers are not trying to scare other experienced lawyers half to death with scary ethics antidotes, they should start. Because some damn-the-clients experienced lawyers are getting their hooks into young proteges and teaching them the same damn-the-client ways that some of them have been following for thirty years or more; it should stop, and nobody is beyond redemption.

One example of the damn-the-client ways: older Houston criminal-defense lawyers long thought it acceptable to put their clients on the stand to prove that the lawyers had complied with their ethical obligations; everyone did it and nobody commented on it because that was the way it was always done. But more recent generations of lawyers are learning that it’s an unethical violation of confidentiality, in part because lawyers such as me make it scary.

12 Comments

  1. So “Attorney” cannot be used as a professional title, as in “Attorney and Counselor at Law”? That damned Supreme Court screwed up my law license.

  2. Given my lack of desire to invest in new business cards and document templates, and my perception that the pretention and imprecision is only perceived in the eye of the fastidious, I’ll make do. So far, you and Bernstein are the only ones I have found who make the distinction between “attorney” and “lawyer”. Garner does not.

  3. Mr. B., so far I only know of around three humans that ‘aint afraid of no ghosts’ (Yourself, Mr. Scott H. Greenfield, Mr. Paul Kennedy – the one with redish hair).

    If telling it like it is and the way it should be performed on an ethical and professional level scares a few pansies into rethinking their career choice, then so be it. A human with a law degree that only specializes in Divorce & Wills should be scared to death to even consider setting up consultations regarding Felony cases.

    For the record – We have; *Attorney, *Lawyer, *Counselor, *Legal Representative, *ESQ., & ?
    Whoa, what was that, shhh, oh it’s ok it was only your shadow. Thanks.

  4. Crap. All these years I’ve worked on being arrogant and condescending, NOW I find out I’m pretentious and imprecise, too?

    My next cards are just going to read “Problem Solver.”

    Assuming the occasional poor outcome can be termed a “solution.”

  5. Re: ” Unethical behavior, even if it is not sanctionable, can hurt clients.
    The chances that a lawyer will slip ethically and hurt her client are infinitely greater than the chances that she will slip ethically and be disciplined by the bar. Some people practice unethically for years, causing great harm to their clients, without ever being disciplined by the bar.”

    SPOT ON! Even if some of the Ethical Rules I am still strongly in favor of HAD passed but didn’t (No sex with clients in particular) the State Bar “Police” are too understaffed and realistically the client just wants their original legal issue over with. They have no more money or time to go after the lawyer. A law license can be a license to steal or help people. I honor those whose calling leaves room for empathy to do the right thing which can be a very broad thing. I DO believe in a “Higher Being” and DO have Faith in lawyers casting good “Karma” around the “system”.

    You never know when this “golden selfless” boomerang of goodness makes its way back to you when you least expect it. ” I ain’;t no preacher” but it sure warms my heart when I see lawyers in court staying on a case when more than 50% is paid, or an indigent Vet is represented pro bono. “WE” Lawyers truly are the backbone of our Country by the practicing barristers protecting the Constitution and good Judges following its precepts.

    We are in tough economic times and there IS turmoil across the “pond” in England. With this, I conclude my honor of GOOD, HONEST and CARING LAWYERS with – as I know you all are already fully aware of: The meaning of the famous Shakespearean Play: Henry VI:

    Few people are unfamiliar with the phrase The first thing we do, let’s kill all the lawyer. Rueful, mocking, it often expresses the ordinary person’s frustration with the arcana and complexity of law. Sometimes it’s known that the saying comes from one of Shakespeare’s plays, but usually there’s little awareness beyond that. This gap in knowledge has inspired a myth of “correction”, where it is “explained” that this is line really intended as a praise of the lawyer’s role.

    “The first thing we do,” said the character in Shakespeare’s Henry VI, is “kill all the lawyers.” Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution — thus underscoring the important role that lawyers can play in society.

    God Bless You All….

  6. Not at all…so long as it’s the kind that keeps the present Constitution, AND is lead by such good “Revolutionaries” as John Adams, Barrister, Esq. who would have the same values, honor and courage to represent the British soldiers charged with murder and found NOT GUILTY in their trial of the “Boston Massacre”. I DO have a problem with mass, mob, gang like violence with no honorable purpose except to terrorize, vandalize, hurt and kill for no higher purpose than violence itself or to feed the ego of some dictator. But you’re a Libertarian right Mark? 🙂

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