May 21, 2020 Sidebar

Keep Your Nose Clean

It's easy to justify immorality in our selfish society, which worships wealth and power.

Kenneth P. Nolan

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I thought I wasn’t, but I really was naive. I believed the bunk about truth, justice, and the American way. Sure, everyone told a little white one on occasion, but the courthouse was a sacred temple; judges were paragons of integrity and impartiality, and attorneys were defenders of fairness and freedom.

I had been at the firm a few weeks when I researched a potential action—extremely lucrative—to determine its viability. Striving to impress, I spent nights in the library, mastering the subject, learning the precedent and law, writing a detailed brief that concluded it was a slam-dunk loser. After some spirited questioning, the partners, although disappointed at the loss of millions, accepted my recommendation and advised co-counsel and his client we could not assist them.

The next day, one of the bright, aggressive young lawyers—later my mentor—called me into his office, closed the door, and nearly shouted: “What are you, #@% crazy? Of course, we take the case. We’ll figure out some theory, convince the judge it’s a question of fact, and the defendant will settle. You never turn down a case that’s worth millions because they’ll always pay you thousands and lots of them. What’s wrong with you? You better wise up, or you’ll be back teaching.”

“But it would have been dismissed on summary judgment,” I meekly responded.

“So what?” he roared. “But if it wasn’t, then they’d pay.”

Humiliated, I slunk to my office, hiding my ignorance and innocence behind a tower of books. My first real assignment and I screwed up. When I taught To Kill a Mockingbird to resistant, bored teens, I knew I was right and they were wrong. Here, in the law biz, the boundaries were not so clear.

It’s Not What You Know

About the same time, I joined the Bay Ridge Lawyers, a neighborhood bar association of primarily storefront practitioners who specialized in house closings, estates, and small business–related matters. At their monthly meetings—always over a bowl of linguine in the back room of a local Italian restaurant—a speaker would explain the latest developments in probating a will or drafting a contract. At one of my first, a distinguished judge, from a powerful Democratic club, held forth. I only remember his conclusion: “And don’t forget,” he insisted. “If I’m on the bench and I don’t recognize you, kick me in the shins and let me know you’re a Bay Ridge lawyer. I’ll take good care of you.” Smiles and applause all around.

It was a joke, I thought, until over drinks at the bar, the older attorneys told stories about how this judge and others gave them adjournments whenever asked, ruled for them on contentious issues, and gave other favors, big and small, all because they were buddies. I was shocked.

Ah, the real world—a place where friends meant more than the law, where financial leverage was used to extract a settlement, where judges were appointed based on politics, not merit. I always knew life was tough and cruel. Now I realized it was also a touch crooked.

Gradually, I was adjusting. When a judge inexplicably ruled against me, I argued strenuously but kept to law and facts. I didn’t shout that the fix was in, that the judge was favoring a political ally. “Don’t worry, kid. I’ll make it up to you,” the white-haired judge whispered. And having spent all my life in Brooklyn, I, too, was friendly with some court personnel. Once I was number 37 on the discovery calendar, hoping to be called by lunch. Instead, I was called first. Approaching the bench, I smiled at the court officer, who quietly told the judge: “Kenny Nolan, we went to Bishop Ford together. Good guy.” Miraculously, the judge agreed with my every request, ignoring my adversary’s many objections.

In alien venues, I was slapped around; where I had connections, I was rewarded. Most were minor matters without significance, so I thought this somewhat harmless. Yet, I was astonished when a judge ruled in my favor the day after my adversary and the judge were golf partners at a bar outing. Sometimes, I nearly shouted, the system works.

Rules to Live By

Temptation is inevitable—I was taught—sin is not. Lawyers, with our unforgiving clients, callous judges, demanding partners, along with our innate passion to succeed, are particularly susceptible. Add financial pressure, and the lust for victory often becomes overwhelming. And for some, this means a huge house, a fancy car, and an exquisite bottle of Château Margaux.

A few years after I was admitted, I picked up the New York Law Journal to read about the arrest of a neighborhood attorney—one I would have trusted without reservation—for dipping into his escrow account. Not really dipping, but stealing. And over the years, this happened again and again. Good guys and gals, with Christmas card families, were disbarred for using clients’ moneys to gamble in Atlantic City, to sip Prosecco in Positano, or simply to toss a Benjamin on the bar and shout, “On me.” One valued friend, named guardian ad litem for numerous disabled children, betrayed this trust. He went to jail for a long time.

Even successful trial lawyers, rolling in dough, are not immune. Pickaxes were used to enlarge potholes; brown bags of cash were exchanged for signed retainers. Witnesses and judges were bribed; experts opined as directed. One lawyer had the same guy testify as to a defendant’s negligence in two separate trials. Only one minor wrinkle—the second accident occurred while the witness was in jail.

At some point in your career, the devil will whisper in your ear, “C’mon, it’s easy, everyone does it, no big deal.” It will happen. And not just once. When I first started, I handled a number of obstetrical medical malpractice cases, and on occasion, I would receive a phone call from a parent whose child was brain-damaged. One time, the desperate mother pleaded that she had no money, that her lawyer was worthless, that she couldn’t pay the rent. Would I be interested?

By then, I knew that if I sat on her worn sofa with some cash, the case would be mine. But I also realized that these requests for money would continue. “Trust only those you knew since kindergarten” was the mantra of my neighborhood. After much agonizing, I heeded those words and reluctantly declined. Oh, did I also tell you it was wrong?

When this scenario happened a second time, I didn’t hesitate. “Sure, I’ll come see you,” I said. “But we don’t advance money to clients.” “OK, let me talk to my husband about it” was the last I ever heard. Thankfully, these calls occurred when I was young, causing me to be even more distrustful of everything and everyone. If it’s too good to be true, it is. Ask the Madoff victims.

But these decisions are not easy. I like money, too. A lot. Yet, I had the benefit of a mother who would sit in the dark because “the bulbs make it too hot”—Brooklynese for “I’d rather go blind than pay Con Ed an extra few bucks.” Others, however, were raised in more enlightened households where money was to be enjoyed, not simply stashed away for the inevitable financial tsunami. So they never learned to resist the allure of a mansion on the lake, season tickets to the Warriors, or a private jet to the Caribbean.

Debt is dangerous. When you can’t pay your bills, you—of the compelling voice—can easily convince yourself that in a month or two you’ll repay the escrow money, send your client her share of the settlement, or readjust those phony disbursement charges. But one month turns into six, which turn into . . . you appearing on the local news in handcuffs. And if you don’t believe me, google those recently disbarred. You’ll recognize a name or two.

You’re not that smart. As effective advocates, we use our acumen to reason, to persuade. Judges and juries are enthralled with our words. Some believe victory at trial makes us brilliant and invincible. You’ve seen them holding court at cocktail parties or “struttin’ about the town like a paycock,” as O’Casey wrote. “The other side’s on scholarship too,” warned the college football coach. None of my cop friends went to Yale, but they’ll see right through you. You’ll get caught, lose your license, and be ruined. And worse, your children, who once adored you, will pity, if not despise, you.

Right from wrong. “To be honest, I’m not worried about the moral issue here,” said the former cochair of Willkie Farr during the college admissions scandal. Incredibly sad words. I love my kids, too, and I’d do anything for them, except go to jail. Not everyone is gifted; not everyone deserves a trophy. Disappointment and defeat are part of life. Get used to it, or better still, teach your children to get used to it. And by your actions—how you live your life—show them that integrity and equality are essential for success.

We were all taught to be honest, kind, and generous. Easy to justify immorality in our selfish society, which worships wealth and power. At the end of Saving Private Ryan, James Ryan returns to Normandy and, standing before the grave of the soldier who saved him, implores his wife, “Tell me I’ve lived a good life. Tell me I’m a good man.”

Live a good life. Be a good person.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013), is counsel to Speiser Krause, Rye Brook, New York.