Volume 3, Number 2 • April 2005

Cell Phones, Wireless, Blackberries, and Other Banes to Professional Fulfillment

 By Evan Loeffler

Technology has provided many communication aids designed to assist the modern lawyer with efficiency and work quality. Although these tools certainly have certainly revolutionized the ability of lawyers to work from wherever they are, the side effect has been to blur the line between one’s professional and personal lives.

I have experienced several events that brought this lesson home to me. In my solo practice I have scores of clients with active cases, all of whom are annoyed when they cannot speak to me directly when they call. I took all reasonable steps to ensure rapid response. I subscribed to a service that delivers my voice messages and faxes as attachments to my e-mail. Even if I cannot send and receive e-mail, I can check my messages and e-mail remotely using my cell phone. I make it a point not to leave the office at the end of the day until I have responded to all my correspondence. This has led to some late nights in the office during trials. However, most of my clients appreciate it when I call, even if it is at 8:30 p.m.

Unfortunately, this practice has had the unintended effect of giving many people the impression that I am literally always available. One client, unsatisfied with my response time (he left no less than six voice mail messages in a three-hour span one Sunday afternoon), insisted that I give him my cell phone number so he could get in touch with me when the need arose. I declined to do so. Another client, upset that he received what he felt was an exorbitant speeding ticket for driving 70 in a 35 zone, figured out my home number and called me there.

“Ralph,” I told him. “It’s Saturday morning; you’re not in jail; the courts are closed; and if you’re contesting a speeding ticket there won’t be a hearing for weeks. Why is it that this can’t wait until Monday during business hours?”

“Because we need to work out a litigation plan!” he insisted. “I need to know what defenses you’re going to raise.”

“I don’t know until I see the ticket, and then I have to order the records for the radar that measured your speed. You can bring me a copy of the ticket on Monday.”

“I can fax it to you now!” he said. And he did. Through the wonders of modern technology, I was able to view the fax on my laptop computer in my kitchen while fixing breakfast. Then, using a cordless headset, I was able to spend the next two hours explaining to my client that I did not believe he had a particularly good defense even though the police officer had neglected to wish him a nice day after issuing him a traffic citation. During this time, I not only billed the client, I also I washed the dishes, mowed the lawn, repaired a fence, and started a load of laundry. The client was happy, but I felt that my day of rest had been ruined by the intrusion of work into my personal life.

I learned on another occasion that one must be careful about giving out a cell phone number to too many people. I was sitting in court waiting for my turn to argue a motion when the relative soporific ambiance of the courtroom was shattered by the sound of a ringing cell phone. The lawyer arguing his motion stopped in midsentence, excused himself, and then answered his phone. The judge was not amused.

“Counsel,” the judge hissed, “perhaps you did not notice that there are ten parties waiting patiently for their scheduled motion to be heard. And, perhaps you did not see the large red sign on the door that says ‘No Cell Phones.’ But I am not prepared to believe that you somehow forgot that we are in the middle of hearing oral argument on your motion that you have interrupted to take a personal phone call!”

The attorney apologized and explained he had been waiting for an important call from his office relating to another case. This did not help the judge’s mood.

“I will not comment on the fact that you do not feel that these proceedings are as important as those in another case. Whether they are or not, that does not excuse your disregard for rules of this courtroom. Give me your phone.”

The attorney handed up the cell phone. The judge removed the battery and gave it to the attorney, explaining that he could purchase the phone from the judge for $100 at his convenience. (It bears mentioning that the offending lawyer won his motion.)

The final example of how one can be too easy to reach involved some bad planning on my part. A telephone conference had been scheduled with the court and opposing counsel for 1:00 p.m. By 2:30 p.m. the court had not called, and I was experiencing an urgent need to use the restroom brought about by my having ingested six cups of coffee that morning. When I felt I could not put off this need any longer, I forwarded my business line to my cell phone and galloped down the hall.

I will not go into clinical details, but suffice it to say that my cell phone rang at the worst possible time. I answered the call.

“Counsel, this is Judge Hopper and we have attorney Wurstphall on the line. We’re on the record for Mr. Wurstphall’s motion. Are you ready to proceed?”

“Yes, your Honor,” I replied.

“We’re getting a bit of an echo, Counsel.”

“Must be a bad connection, your Honor. I can hear you just fine.”

“Very well. Mr. Wurstphall?”

Opposing counsel launched into his argument that his client should not be required to comply with the same rules of discovery all other litigants are required to comply with due to his belief that he was going to win the case anyway.

“Excuse me, Counsel,” the judge interrupted. “I missed part of what you said because of some background noise. Did anyone hear the sound of water?”

“I think that was on my end, you Honor,” I said.

“It sounded like a toilet flushing, Counsel. And I’m still getting that echo.”

“Umm ….”

“Let’s go off the record for a moment, shall we?” said the judge. “Mr. Loeffler, are you going to the bathroom?”

“Not anymore,” I said.

“This is where you choose to take your business calls?”

I explained this was not exactly my choice and that I had been standing by for the hearing for nearly two hours. After listening for a few moments, the judge burst out laughing.

“You really need to take more personal time, Counsel,” he said. Then he gave me a five-minute continuance to wash up and return to my office so the proceedings could be continued “with proper decorum. I would not want to make a record that this hearing caught counsel with his pants down.”

The judge made a good point. This is not an issue, however, only prevalent with lawyers. All professionals have both benefited from technology and simultaneously suffer from what has become an inability to truly stop working. Cell phones, pagers, wi-fi networks at every coffee shop, and portable e-mail devices like Blackberries not only make it possible for lawyers to keep in touch with their clients whenever they wish; they also encourage clients and colleagues to expect to be able to communicate with lawyers whenever or wherever they are. This can be inconvenient during weekends, vacationing, on a date, or attempting to take some personal time.

Without the ability to shut oneself off from the office, one can never stop working. This can lead to burnout. It is therefore recommended that clear lines be drawn to protect “work time” from “personal time.” Avoid taking work-related calls at home. Resist the temptation to check e-mail or check in with the office when on vacation. Recognize that time away from the office should be spent resting the mind and tending to the physical needs of the body.

This has been referred to in Stephen Covey’s Seven Habits of Highly Effective People as taking time out to “sharpen the saw.” It does not only apply to keeping up on changes in the law and in practice management strategies. It applies, too, to the importance of taking care of oneself.

Evan L. Loeffler is of counsel to the law firm of Harrison, Benis & Spence, in Seattle, Washington, where his practice emphasizes real estate litigation.

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