Adventures in the Law: The Bartleby Response

In 1853 Herman Melville, of Moby Dick fame, published a two-part story titled Bartleby, the Scrivener: A Story of Wall Street in Putnam’s Magazine.

Bartleby’s task as a scrivener was to copy documents by hand. At first, he produced a great many documents of excellent quality. But one day, when asked to complete an assignment, he declined, saying simply, I would prefer not to. Soon, that was his invariable response to all assignments: I prefer not to.

Fast forward some 170 years. A New England attorney—we’ll call him Darrell--received an inquiry from state bar authorities about overdrafts on his attorney trust account. He quickly made deposits that cured the deficiency.

But with regard to the request for information about the overdrafts, Darrell’s response was worthy of Bartleby. Declining to provide the information, he wrote to the bar authorities, It’s a matter of priorities and you are not one of them.

On matters other than the overdrafts, however, Darrell was expansive. His response included this explanation of what was his priority:

I was on vacation, landlocked salmon fishing at East Grand Lake in Weston, Maine, three of us caught about 50 fish, all of which went back into the lake alive, except for one dinner, 3 fish 20 to 22 inches long, they were delicious. Egg batter, then breadcrumbs, fried in Peanut Oil. Hot Peanut Oil dissolves any soft bones left in the fish after they are filleted. Then lemon juice on the fried fish. You want to die for. I will send you my response to this terrible offense next week.

Not satisfied with the salmon recipe, the authorities ordered an audit of Darrell’s trust account. He declined to cooperate. Like Bartleby, he preferred not to.

The Chief Disciplinary Counsel sought an interim suspension of Darrell’s law license, for failing to provide the requested information and failing to cooperate in the audit of his IOLTA account. Counsel also sought appointment of a trustee to protect the interests of Darrell’s clients, as well as an appropriate disciplinary order.

Two years passed after the authorities first asked for information about the overdrafts—overdrafts he had long since cured˗˗and Darrell still preferred not to cooperate, so he didn’t.

The matter was scheduled for a court hearing, but Darrell failed to appear, apparently preferring not to.

Later that month, a Judge Trial Referee ruled that Darrell had committed misconduct by failing to comply with an order requiring him to cooperate in an official audit of his trust account and by failing to appear at the court hearing. Darrell was placed on immediate suspension from the practice of law.

The ruling made clear that if Darrell cooperated in the audit of his trust account, the court would conduct a hearing to determine a final disposition.

All Darrell had to do was cooperate, but he preferred not to, so he didn’t. Instead, he preferred to resign from the bar, which is what he did.