January 01, 2014

Temptations

Every lawyer practices within a complicated set of goals and constraints that can lead to temptations.

Laurin H. Mills

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My practice has never been filled with the kind of temptation that is the stuff of ethics opinions or newspaper stories. Instead, it has been rife with the more mundane, but equally pernicious, temptations to procrastinate, to wish away unpleasantness, to resist change, to fail to question certain statements of fact or opinions, to fall in love with a legal argument even when the equities of the case are strongly against you, to fudge (just a bit) the facts or the law, and to be rude or uncivil to an opposing counsel or party. While these kinds of temptations generally will not lead to the spectacular and public career flame-outs caused by the famous sex, drugs, and money trilogy, they can just as effectively derail or limit a legal career.

What leads us into these temptations? Reality. Every lawyer practices within a complicated and usually conflicting set of goals and constraints, and that conflict leads to temptations. Your firm wants you to bill a large number of hours at the highest hourly rate that the market will bear. Your clients want high-quality legal services but at the lowest possible price and at a moment’s notice or over a weekend. Your adversaries are constantly working to undermine your case. Key witnesses die, move away, conveniently forget, or do not want to be involved. Documents must be reviewed, organized, checked and redacted for privilege, and synthesized, but that necessary work is tedious, no client wants to pay very much for it, and newly minted associate attorneys burnishing impressive academic pedigrees do not want to do it. You are competitive, ambitious, and out to establish or maintain a reputation. The messy realities of litigation are getting in the way of your personal goals.

These are the roads that lead us into temptation. This piece focuses on four of the worst temptations: the temptation to jeopardize your credibility, the temptation not to work up a case, the temptation to resist change, and the temptation to ignore the equities.

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