GPSOLO December 2008
On Cyberspace, Legal Ethics, and Hunting Wilderbeest
An associate (let’s call him Ned Newlux for these purposes) at a 25-person law firm asked me for guidance in dealing with a sensitive employment situation. Regrettably, the request came too late to be of significant assistance, but there were some things that I could say for the next time he found himself in a similar circumstance, as he undoubtedly would.
Newlux had been with his employer for three years, during which he had grown increasingly more isolated and hostile toward the firm. Not only were the plum assignments that he had been led to expect not materializing, but the mentoring—guidance from and close interaction with the partners in his practice group—was becoming less, rather than more, frequent and useful. Things came to a head over a relatively minor matter: The firm’s marketing leader brought in a public relations consultant to discuss new directions for the firm, and she failed to interview him.
In response to that slight and on the occasion of what was little more than a tangential reference to the consultant’s work in a general e-mail to members of the firm, Newlux took the opportunity to share his thoughts about the “proposed new direction” with his mentors, another senior partner, and two individuals outside the firm who had been particularly instrumental in guiding his career and introducing him to bar colleagues and clients. Suffice it to say that the content and tone of the three-page e-mail was captured in a sentence that read: “It is difficult to see, given all of the supposedly candid conversations predating this, how anyone could believe that talks about re-branding the firm could have commenced—let alone proceeded—without input from me, as the lead on our highest-profile and potentially most lucrative case.”
After he clicked the send button, but in the instant before that e-mail’s transmittal message—“Your message has been sent to the following recipients . . .”—had appeared, Ned Newlux had second thoughts. Reflecting later, he said the instant after sending it, “what I really wanted to do was to cry.” He went on to explain that he didn’t regret writing the e-mail; what he regretted was that he had sent it. As he explained, “For just a minute or so, I felt compelled to step up and tell a few folks what needed to be said.”
Recently, I had occasion to reflect on Newlux’s situation—and let me note that Newlux is a composite of at least four associates at similar crisis points to whom I have spoken. I thought about his need to talk to someone with a disinterested but sympathetic perspective: a lawyer, dean, professor, legal ethicist, or friend. And I thought about how, in my case, being all five provided a potentially unique perspective.
From the professor’s and ethicist’s perspectives, in particular, I was reminded that one of the most fascinating areas of scholarly inquiry in recent years has involved increased efforts by behaviorists—psychologist, economist, sociologist, political scientist, and ethicist of many stripes (including legal ones)—to determine whether humans are genetically hardwired to pursue justice, or at least ethical outcomes. Over-simplified, the hypothesis is that at both the societal and individual levels humans are predisposed to act against wrongdoers—call it revenge, retaliation, delivering just deserts, or whatever.
Some speculate that the urge is an evolutionary defense mechanism, developed by humans to enhance the security and prosperity of the small groups in which we once lived. Freeloaders, double-crossers, infiltrators, and cowards had to be weeded out for the sake of the group. For those perceived as not pulling their weight—quite happy to see their neighbors risk life and limb during the hunt, but unwilling to expose themselves to the dangers of trying to surround a wildebeest—there had to be someone who would, as might be said today, call them out. For the sake of the entire community, and even at the risk of harm (or worst yet, death), somebody had to have the courage to make sure that the wrongdoer paid a price for unacceptable conduct.
Of course, today, few living in one of the advanced industrial states (and even fewer lawyers among them) are ever called upon to risk life or limb. Aside from the tensions of closing a deal, the inevitable stress of litigation, or the unintentional slights that arise with office mates or clients, most lawyers appreciate how few occasions actually require calling anybody out. What is curious, however, is that although the instances when we are called upon to restore moral equilibrium have steadily decreased, both our ability to retaliate and our desire to do so appear to be dramatically increasing.
Speculation as to why is often as unreflective as is our motivation: Because we can. As in Newlux’s case, today our “justice gene” seems to be on cyber-steroids. As lawyers, we can now dump more data on counsel—dare we say, “wrongdoers”?—in a matter of minutes than used to be deliverable in a day. We can speak directly and in the most acerbic tones, because in cyberspace, unlike when human interaction was the necessity, you never have to look opposing counsel in the eye or even hear a response when the bytes bite. And there is enormous room for mischief when you can drop e-mails as if they are improvised explosive devices—designed to blow up on the desktops of opposing counsel, spewing adjectives and adverbs through the air as menacingly as shrapnel.
There are also other effects. Electronic information and communications technology has increased the size of the communities with which lawyers are involved, reduced their levels of intimacy, and made any sense of scheduling seem almost nostalgic. These technologies have not just redefined the workplace; they have redefined the very concept of place. The technology has so expanded the geographical distance over which we communicate that the numbers of people with whom we can easily converse is now beyond any possibility of being described as intimate. The recipients of such communications are now potentially too numerous a population to imagine meeting even in a lifetime. Add to that the speed with which we can now exercise the retaliatory instincts that Newlux was dealing with, and the problem is compounded. We live in a world that is, perhaps, now too large, too impersonal, and too fast even to be affected by the sense of justice that is often motivating us.
After my young associate clicked the Send prompt, it was too late to consider whether the points made in his missive would simply alert the rest of the community that there was a slacker in their midst—someone who was not pulling their weight, playing fair, or accepting the risk, but instead prospering by letting others bare their burden. The reality is that what at another stage of human history might have amounted to pointing a finger at an idler on the public street (or, perhaps, making the charge via a more discrete snail-mail delivery) is today likely to find its way to a message board or be shared on an Internet site such as The Old Joel on Software Forum-Slacker Coworker, ( http://discuss.fogcreek.com/joelonsoftware/default.asp?cmd=show&ixPost=148530, visited October 7, 2008). It may make for hilarious reading by somebody, but consider the cost versus the benefit. Potentially, hundreds of thousands more people than you intended may read your e-mail—courtesy of some anonymous source. Furthermore, you may find that rather than having focused attention on the wrongdoer, both of you end up the objects of ridicule. Finally, there’s what your second-grade teacher warned you about: that mark on your permanent record. The Internet is as close to it as we’ve come. Once a message is out there, it can be re-published again and again and again. Your capacity to take it back—or even to explain it—is extremely limited.
The much-honored Albert Coates, founder of the University of North Carolina Institute of Government, famously warned that in a battle between the truth and a lie, the truth is at a decided disadvantage. “A lie,” he said, “can be half-way around the world, before the truth can get out of bed and put its pants on.” His meaning was clear and ultimately unassailable, but is, perhaps, even more compelling when we are reminded that he was not speaking in the Internet Age. If anything, the speed of untruths—especially when celebrity, salaciousness, or money is involved—has increased. Today a lie can circle the globe twice before the truth can get its pants on. Worse yet, in the Age of the Internet, you can expect those pages to be linked, translated (and reposted), parodied, and even reported by old media such as newspapers, radio, and television.
What, then, is the ethics lesson here? It is, perhaps, the one that lies at the intersection of thought where a second emerging theory, structural ethics, crosses that first theory about the justice gene. In structural ethics, we see a growing group of academicians in engineering, psychology, economics, and, more recently, in law exploring the relationship between why people act (e.g., the retaliatory urge) and how individuals act (e.g., the circumstances created by their environments). Structural ethics is, thus, the idea that the ethics of any definable group must, of necessity, involve more than an examination of the rules. In law, for example, we are right to place important emphasis on the rules of professional ethics (e.g., the ABA Model Rules and the various state codes) and to give attention to professionalism (the expectations of the profession that go beyond what is disciplinable). But equal attention must be given to the environments in which lawyers practice—the ways in which the structure of their practice helps influence their responses to the issues they confront.
For Newlux, but equally so for all lawyers, the keys points are four. First, we must inquire whether the operations of our practice are transparent. Have we organized our routines in ways that maximize the likelihood that our colleagues (and even our clients) will have the fullest opportunities consistent with our ethical responsibilities to observe us practicing? The premise here is a simple one: Lawyers who are observed (and who observe each other) more consistently adhere to expected norms.
Second, we must inquire whether there is sufficient redundancy built into our operations. When decisions are made, are they made in a way that encourages multiple opportunities by others to ratify them? Ask whether the decision maker is aided, checked, or critiqued by others? Is there ultimately an opportunity for someone else to sign off on any significant action or decision of the firm?
Third, we must establish accountability. The mere opportunity to ratify is not enough. We must ask whether there is someone who is specifically charged with ensuring that what attorneys (and the firm) need to get done is, in fact, being done. In other words, we must recognize the risk that what is the responsibility of everyone is, in practice, the responsibility of no one. Furthermore, in making accountability a part of our routine we must satisfy ourselves that there is a paper trail documenting our actions.
Fourth, and finally, we must ensure that our operations afford notice. It may seem a simple enough requirement, but in practice it is not always easy to signal our colleagues (and, perhaps, our clients and even the public) that a particular decision has been made and its substance is about to be announced.
As noted, it was too late to help Newlux. He made an unalterable decision when he pressed the Send key. Still, even now, the opportunity for Newlux to become aware of the impulses driving him and to seek to structure the environment of his practice in order to control them would be a worthwhile undertaking. Indeed, whether you are a solo or small practitioner or a member of a mega-firm, it is important that you organize both your conduct and that of your firm in a way that structurally reinforces your commitments to ethics and professionalism. After all, the pressures of practice will not diminish. If it’s not the Internet or other technology that is stressing and compounding your situation, it will be something else. Our ethics will certainly suggest the way in which we ought to respond, but unless we have thought about the circumstances in which the challenge to respond will be presented, we’d better hope that we don’t find ourselves facing a wildebeest alone.
Burnele V. Powell, the Miles and Ann Loadholt Professor of Law, University of South Carolina, teaches and writes on legal ethics. He may be reached at firstname.lastname@example.org.