Scare ‘Em

 Posted on August 16,2011 in Uncategorized

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:

1. Lawyers learn very little in law school that is of any use in practice.

2. The subject of ethics, like most everything in law school, is taught by academics, not practitioners.

3. Getting ethics advice from a law-school professor is like getting sex advice from a Catholic priest.

4. "Ethical" is not the same as "complying with the Disciplinary Rules."

5. 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.)

6. Unethical behavior, even if it is not sanctionable, can hurt clients.

7. 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.

8. Some people practice unethically for years, causing great harm to their clients, without ever being disciplined by the bar.

9. Recessionary times make for desperate lawyers.

10. It's hard to get desperate people's attention.

11. 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.