General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1998 © American Bar Association. All rights reserved.
From the Editor
Lies, Sex, and Honest Mistakes
BY JENNIFER J. ROSE
jennifer j. rose, an American lawyer in Morelia, Michoacan, Mexico, is editor-in-chief of The Compleat Lawyer. She can be reached at firstname.lastname@example.org.
What's the big deal about ethics and malpractice? Lawyers and those watching over them constantly wring their hands over a few broken rules. Entire industries have sprung from lawyers' concern over one another's foibles and transgressions. You'd think that any lawyer savvy enough to earn a law degree ought to know better.
Everyone breaks one or more of the rules eventually, despite the best of intentions (well, almost everyone). And most of us have even made an occasional mistake or three. I have.
Following the rules surely cannot be that difficult for someone who has memorized all of the exceptions to the hearsay rule and purportedly understands the Internal Revenue Code. Simply avoid lying, cheating, and stealing. Or going to bed with clients. Follow the Golden Rule, and pay heed to Robert Fulghum's kindergarten lessons. Just say "no."
If only it were that easy. As our practices increase and our lives get complicated, our paths seldom lead to easy solutions. Ethical conundrums lurk behind both Door Number One and Door Number Two, and each is equally likely to land us in the ethical stew. What's behind one door may be the ethically pure route to a malpractice claim, and what's behind the other may be even worse. This wasn't what Monty Hall intended.
And why should that million-dollar malpractice coverage concern the lawyer who pledges never to make any mistakes? You know, the one who practices extreme care, returning diligently each and every client's phone calls, researching to the nth degree all law, case and statutory, relevant and irrelevant—the lawyer who makes Abraham Lincoln resemble Ted Bundy?
Remember your law school ethics course? Where they dragged in the penitent lawyer whose license had been yanked for stealing from widows and orphans? And a white-haired avuncular type who warned against the perils of smoking marijuana? Only idiots and fools would dare violate the Canons of Ethics and Rules of Professional Conduct, we thought.
It was all so easy back when we had the luxury of having only one case, one client, and endless time to ponder. In time, the primordial urges of making a living and making partner force many lawyers to concentrate upon alien notions such as winning cases, building a stable of satisfied clients, and besting the opposition—inimical and antithetical to those early good intentions. Few of us contemplated the client who would never be satisfied with less than scorched earth or who expected us to win at all costs. The rules failed to mention the client from hell, or In re Hydra's Head, or even the unsolvable. Many of us thought the other side would always play from the same rulebook. And real life blustered forth as a genuine surprise.
Only when a Very Important and Highly Respected Lawyer, the type who often speaks at CLE seminars, ended a presentation at an ABA meeting remarking, "Until you've faced a grievance, you're nobody," did I comprehend the inevitability of facing accusation, even an unjustified one. Lawyers snicker about others who break the rules and are caught, but few will confess the fear and trembling that accompanies that registered letter from the Committee on Professional Ethics and Conduct. It's one thing to brazenly boast about malcontents and risk prevention, but when the complaint strikes home, bravado crumbles quickly. Many lawyers would rather disclose their weight or their tax returns than divulge ethical or practice lapses.
Having learned to spot the innumerable warning signs of clients to avoid, most of us nod our heads in agreement. Never accept the client who has fired previous counsel, who waits until the day before the statute of limitation expires, who is angry and abusive, who is the perpetual victim, or who gives off bad vibes. Realizing that those caveats eliminate 90 percent of our possible client pool, many (if not most) lawyers accept these scarlet-lettered clients, figuring that someone must represent them. Exigent circumstances can force us to act against reasoned judgment, and sometimes economic reality overtakes our sensibilities. As Monday morning quarterbacks, it's all too easy to wonder how some lawyers could be so stupid.
Among the organized bar, as well as the public, a sense prevails that lawyers who run afoul do so intentionally—that lawyers who have been complained against or who are sued are intrinsically bad people or incompetents. Some may be, but most aren't. Have the profession's police efforts undermined the public's trust of us more than all of the transgressors' acts combined? Would the profession be held in greater esteem if lawyers climbed down from the pedestal and began to acknowledge human frailty?
Sometimes it seems that the only foolproof guarantee against ethical missteps and malpractice is to avoid clients and their cases, trading that bar card for a full-time job at the Dairy Queen. Impelled by the urge to avoid the chilling effect of chocolate or vanilla decisions, most of us keep trying—to serve our clients, to maintain those ideals that led us to the profession, and to enhance the profession. This issue of The Compleat Lawyer explores those quirky and confounding issues of ethics and malpractice. Check out our new standing column on ethics, "Legal Ethics: Customs, Cases and Confusion" by Martin Paskind, which appropriately debuts in this issue.
As Monday morning quarterbacks, it's all too easy to wonder how some lawyers could be so stupid. But we weren't there for the Saturday afternoon touchdown at the sixth inning.