There are so many great conversations/debates that could be started by this lawsuit:

- the merits of the billable hour system

- the long hours often worked by attorneys (i.e., work-life balance)

- the controversy over billing time in minimum increments

But before we get to that, I have to ask whether there is any truth to this lawsuit and the alleged 3,000-hour requirement in the first place.

First, let’s do the math. 3,000 hours, divided by 365 days a year, amounts to 8.2 billable hours a day. Every. Single. Day. Even with “questionable” billing practices, I’m not sure I believe that any law firm would honestly have this requirement.

I know big-law attorneys who work their tails off, and probably do come close to billing this number of hours each year, but I do not know a single attorney with a minimum goal of 3,000 hours per year. Additionally, as an attorney, I can foresee a whole host of litigation that could arise if any firm honestly had this as their formal policy (such as this case alleges).

Secondly, let’s take a look at the complaint itself (which can be found here). I have a hard time believing, based on the writing used, that this complaint was crafted by someone who possesses both a legal education and over 30+ years of legal work experience.

What do you all think? True or bogus?

Someone who practices as a barber or cosmetologist without a license “shall be fined not less than $100 nor more than $5,000 or imprisoned for not less than 10 days nor more than 90 days or both.”  Wis. Stat. § 454.16.  Similarly, someone who practices law without a license “shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.”  Wis. Stat. § 757.30(1).

Granted, the penalties aren’t identical and we can scrutinize the differences.  In any case, it seems a little unsettling to me that the penalty for giving a bad haircut (assuming it’s done without a license) is pretty close to the penalty for a non-lawyer giving bad legal advice.  Let’s face it, hair will grow back, but the harm from getting legal advice from someone who isn’t properly trained can be devastating.

Humor me while I take this analogy a bit further: even if the unlicensed barber delivers the best haircut of your life (perhaps now is a good time to refer to my photograph, email me if you want my stylist’s number (he has a license, by the way)), he is still subject to sanctions under Section 454.16.  However, the Wisconsin Supreme Court has suggested that correct legal advice given by a non-lawyer, at least in relatively simple situations, is protected speech under the First Amendment.  See Hopper v. Madison, 79 Wis.2d 120, 134 (1977).

What’s more, Chapter 454 establishes a whole administrative board to deal with licensing and disciplining cosmetologists, while the unauthorized practice of law (UPL) lacks an effective enforcement mechanism.

The last several years have seen a lot of attempts by the State Bar and other advocates to find a way to effectively regulate UPL.  Unfortunately, it has been a slow process.  In the meantime, more and more people—usually among the most vulnerable—are falling victim to unlicensed practitioners.

In my practice area, I see a lot of the ugly fallout from those who get advice from notarios: non-lawyer notaries public who misuse their designation to present themselves as immigration experts.  However, the problem goes far beyond the immigrant community.

There have been increasing problems with bankruptcy petition preparers.  The bankruptcy code allows non-lawyers to help prepare petitions for debtors, subject to restrictions.  11 U.S.C. § 110.  Often, however, the preparers do not do a good job of informing their clients of what the fee they collect, about $100-$200, covers—debtors enter bankruptcy court unaware that they need to pay a filing fee to the court.  Worse, these debtors may have received poor advice from the preparer, or even thought the preparer was an attorney.  The bankruptcy court can ban deadbeat preparers, but the barred preparers tend to continue their scheme under borrowed or phony names.

Problems also have been reported with online service providers that advertise online help with anything from estate planning to family law.  These providers try to fit their users’ needs into one-size-fits-all forms—a practice that should make any decent lawyer cringe.

While the harms of UPL are serious, efforts to strengthen unauthorized practice mechanisms have been slow—you can get a sense of how things have developed by looking at the UPL policy committee page on the State Bar website here.

State Bar President James Brennan (full disclosure: Brennan is also the Executive Director of Catholic Charities of the Archdiocese of Milwaukee, my employer) wrote on the importance of combating UPL in September.  (His article is available here.)  He suggests that attorneys take pro bono cases for those who have been victimized by UPL.  The idea is that by bringing successful civil cases against unauthorized practitioners, we build a body of case law that will discourage would-be unlicensed practitioners and make future suits easier (hopefully).

The pro bono component of the president’s suggestion is important—we aren’t usually talking about a lot of money, and to create the kind of impact litigation needed, there will be costly appeals.  Still, it seems to be a pro bono investment with the potential for particularly high returns for the legal profession.  First, it helps stop UPL, which is repugnant to the profession.  Second, pro bono is always good for the profession—it looks good when attorneys work to bring justice for those who can’t afford a lawyer.

Perhaps the most appealing aspect of using civil remedies to discourage UPL is that it is something that can be done right now.  As Brennan indicates, there is pending litigation against a notorious notario in the courts now.  The money at stake in the case is small—it started in small claims court—but an outcome for the UPL victim would send a strong message.

Creating effective regulations and enforcement mechanisms is critical in the long-term fight against UPL.  Civil litigation, however, gives us a way to fight the problem today.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher. 

In law school, students learn in something of an incubator largely separated from the real world consequences of failure.  True, there are the harsh realities and long-term consequences of poor exam performance.  Furthermore, if you come to class unprepared, you might draw the ire of your professors and a few arrogant snickers from your class gunners.  But in the grand scheme of things, the only one acutely suffering from sloth in law school is the student.  If that same indolence creeps into your work post-graduation, then others feel the sting.  Most immediately suffering are your clients, the very people and organizations you are charged with providing educated and prudent counseling and zealous advocacy.  If you choose to litigate, you are also stunting the growth of the law.  Judges heavily rely on effective advocacy from lawyers in reaching their decisions; they do so out of necessity, given their overflowing dockets and calendars filled to capacity.  These consequences demand the very best from us.

Amid the seemingly infinite obstacles without guarantee of rewards awaiting us at the end, some choose to run from even more difficulty.  For them, the thought of striving to be the best feels like simply too much effort or even a delusion of grandeur.  As Bryan Garner scolded readers in a recent article for the ABA’s Student Lawyer magazine, some yearn for the weekend and getting away from it all, at the expense of working toward excellence.  Other students gravitate toward what Justice Scalia last September called “law and ice cream” classes while foregoing courses covering more challenging material.  I have especially noticed as much when I have advised people take Dean Kearney’s and Professor Shriner’s litigation-based courses, many shuddering at the amount of reading those classes require.  And even the ABA Model Rules of Professional Conduct speak largely to how not to be a bad lawyer, with few official statements that express aspirations about what the best among us should do.  Being the best is repeatedly passed up for being just good enough.  In fact, I remember voicing these gripes about this focus in legal ethics to Professor O’Meara early last spring semester.  He responded, as if to finish my thought, “And we can be better than that.”

That we can.  Before the economic and professional realities of the real world hit, legal education provides a focused opportunity to hone your skills and learn self-discipline.  To do well, you must constantly push yourself and raise your own personal expectations.  Take useful and difficult classes like Administrative Law, Advanced Civil Procedure, Business Associations, Creditor-Debtor Law, Criminal Process, Federal Courts, Insurance, Remedies, Secured Transactions, and Taxation.  Find those professors who constantly challenge you and work you hard enough that you know that they respect your competence.  Sign up for judicial internships, especially those that get you writing and learning to write well.  In fact, seize every opportunity you can handle to write, whether it is on this faculty blog, your own law blog, or trying to get a law review article published. And, again, do it well.  If you are on a law review, write a comment that will meaningfully add to an area of law’s growing body of knowledge.  Stay current on developments in subject areas that interest you, because you may just have to practice in a world where those new developments matter, regardless of whether or not your professors choose to cover it in class.  Based on advice given to me by Professor Fallone, Dean Kearney, and Professor Shriner, “collect judges” and find “heroes in the law.”  In other words, keep your eyes open for members of academia, the bench, and the bar that you look up to, and emulate their best characteristics, whether the ways they speak, write, or generally conduct themselves.

Shunning the easier paths and looking for the harder ones is draining and (yes) hard, but there are benefits to be had.  Some of the classes of which I have my most fond memories in undergrad and law school are those that were the hardest.  If anything, they make for good war stories and a feeling of true accomplishment.  After all, as my father would tell me before and during and after law school, “If it was easy, everyone would do it.”  That idea came from a book he read, a book called The Dip by Seth Godin, the same book that partly inspired this blog post.  One oft-used concept from The Dip is a simple one: difficulty weeds out those willing to quit, which in turn creates scarcity among those persons that do make it through adversity.  And, most importantly, “scarcity creates value.”  Seth Godin, The Dip: A Little Book that Teaches You When to Quit (And When to Stick) 36 (2007).  As such, difficulty works to your benefit.  Id. at 26, 41-42.

Instead, there are too many people asking their professors just to tell them “what the law is” rather than digging deeper and debating the purpose and continuing relevance of the rules today.  One cannot have a truly rich education experience without closely examining the how and why, as opposed to pursuing the what single-mindedly. There is too little pride and too much cynicism bleeding into self-hatred in the legal profession, and with the profession’s already tarnished reputation, we should do everything in our power to restore its lustre.  And as I noted before, there are too many people willing to settle for being just average, which is simply not acceptable anymore in today’s legal market.  I say we can be better than that.

We can be much better than that.

Sure his story is remarkable.  He is one of the “White House Plumbers” who created and authorized one of the most infamous covert operations ever.  His actions resulted in a criminal conviction, a six-month prison sentence, and later disbarment from the practice of law.   This is where his story becomes important to me.

His time in prison and subsequent reflections on his years in the White House allows him to share a perspective about the importance of good and sound decision-making with a sense of integrity.  Notwithstanding his actions in the early 1970’s, he is now able to lead by example and talk about how the pressure of our work, our relationships with co-workers, our need to address client demands, and our internal pressure to succeed can interfere with our need to maintain both personal and professional integrity.

He talks about the legal profession with a level of respect and, candidly, enthusiasm that is infectious and truly inspirational.  He has lived through some tough life experiences that are certainly unique to him.  Nonetheless, his message resonates with all of us.  Thank you, Mr. Krogh, for sharing with us your recipe for how to make the right choices.

[I]n reviewing the motion the Court was more than somewhat surprised to read that “Plaintiffs have refused to agree to continue the trial setting and have indicated that they intend to oppose this Motion.”

Well, every party is entitled to file an opposition to a motion, and hoping that perhaps Defendants’ had mis-characterized the vigor of Plaintiffs’ opposition, we have eagerly awaited Plaintiffs defense of its opposition.  The Memorandum in Opposition arrived yesterday, and it was, sadly, as advertised.

The order goes on to shoot down the plaintiff’s attorneys’ arguments opposing the continuance, and ends with the suggestion that the opposing lawyer’s life priorities are out of whack:

Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role.  Counsel are encouraged to order their priorities similarly.

It’s an interesting opinion (and charmingly written), and I forwarded it to my first-year legal writing students, because it is consistent with the approach to professionalism that I was trying to get across to them when we discussed ethics and advocacy. It is of course pleasant, and especially dramatic, that the order was written in the context of the joy of expecting a new child into the world. But most impressive to me is Judge Melgren’s weariness and disdain for the commitment to conflict that the opposition to the continuance seemed to illustrate:

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense. [footnote omitted]  Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat.  This is unfortunate, and unprofessional, but sadly not uncommon.

Black-necked stilt, AKA "lawyer bird"*

It’s fair to say Twitter has taken the social media world by storm. In less than five years, Twitter has become one of the go-to media outlets for bloggers, newspapers, companies, and the everyday Internet user. I won’t go into a long discourse on what Twitter is, what it can do, or how it works. Other people have done a much better job at describing it than I could have.  (Consider checking out About.com’s “What is Twitter” article or viewing Common Craft’s “Twitter in Plain English” video. Also, Twitter has its own about page.)

I’ve discovered through casual conversations (with law school classmates, lawyers, businesspeople, and family and friends) that there are three basic reactions to Twitter. A) “I don’t get it. What’s the point?”, B) “That would never work for me,” or C) “Awesome. Sign me up.” The links in the previous paragraph address the first reaction, and the third reaction needs no additional encouragement, so my message today is directed at the second: don’t be afraid of Twitter. As law students, lawyers, or professors, Twitter offers something for each of us.

The basic benefit of Twitter as a lawyer (either as a solo practitioner or a member of a law firm) is in providing information to current or potential clients and to other lawyers. But it’s about more than just “tweet”ing firm news releases or updates. Indeed, as an individual lawyer, any specific updates you could provide would likely breach attorney-client confidentiality or violate state ethics codes. Twitter is, instead, a useful tool in keeping your followers up-to-date about legal news. That news could be about important decisions in courts around the country, news about legislation, or a story about how the law operates in practice.

Communicating this information to current clients lets them know that you keep up with legal news and informs them about aspects of the law that might impact them. It helps you continue to build and cultivate a relationship with your clients by providing them with up-to-date information about the law. It’s the equivalent of a weekly or monthly newsletter to clients about updates in the law, but is more current and, by the nature of the Twitter relationship, the client wants the information.

Posting this information for potential clients allows them to see that you keep up with legal news, you care about educating the general public about this news, and the news involves an area of your practice. In short, it lets people know that you care about this area of the law and they should consider contacting you for assistance in issues arising in that area of law. It’s like the tv commercial, billboard, or telephone book cover, except Twitter updates are current, constantly evolving, and allow interaction through replies or retweets (RTs).

Other benefits Twitter can offer for a lawyer or law firm include posting links to a blog post (should the lawyer or law firm maintain one), networking in its most simple form, and communicating specific information about the lawyer or law firm (looking for a new associate? looking to become a new associate? attending a conference or CLE event?).

As law students, I think Twitter offers a few key advantages. First, for lawyers or law firms who have embraced the platform, being an active (and appropriate) Twitter user shows legal professionals that you care about the law and are interested in participating in the public discussion about its application. Second, creating a professional online “persona” is a valuable resource. I think law students underestimate the power of blogging about the law (another post for another day or another blogger), and Twitter is an extension of that power. Use Twitter to create and fashion an Internet reputation that shows you are a serious student of the law and committed to your practice area of interest. Finally, network! Twitter is a great networking tool. Follow fellow law students, lawyers, law firms, law blogs, and other legal news sources. But making the connection isn’t enough, reply to interesting Twitter updates with thoughtful and thought-provoking responses, connect with those contacts on LinkedIn, or email them about a recent Twitter update they made.

For professors, Twitter offers a way to engage in a discussion about legal issues, but with fewer words. Many of our professors have found this faculty blog to be a great place for discussing legal issues. Twitter provides a way to expand on that discussion. Professors can post links to interesting articles or case decisions, or links to their own blog posts.

One last point – our Alum Blogger of the Month Brent Nistler presented a great four-part blog series on starting your own practice. Twitter offers a great tool to lawyers starting up a solo practice. All of the benefits I mention in this post are arguably increased for solo practitioners, especially those on a budget. Twitter is a free way to establish yourself and your new solo practice as a knowledgeable and trust-worthy source of legal information in your chosen field.

So, now you’re interested in joining Twitter. Now what? Here are a few basic rules you should consider following:

1. Update regularly. The power of Twitter derives from people who follow you. In general, people are only going to follow users who tweet regularly.
2. Make your updates relevant. Updates about what you ate for breakfast or what your plans for the weekend are not relevant.
3. Do not post private or confidential details about a client, co-worker, or friend. Remember that Twitter is public and can be used in legal proceedings.
4. Find legal professionals in your area of law and follow them.
5. Read Steven Matthews’ Lawyer Twitter Practices: 29 Do’s and Don’ts.

Here are some of the resources I used to write this post. These articles and blog posts offer more great information about the value of Twitter for lawyers.

-       How to Use Twitter as a Lawyer by Grant Griffiths

-       Tweet Success Awaits Savvy Lawyer by Guardian.co.uk writer Neil Rose

-       The Scoop section of JDSupra.com

-       Social Media is Not About Distributing Your Law Firm’s Content to People by Kevin O’Keefe

-       Figuring Out Twitter by Jordan Furlong

-       Twitter for Law Firms by Jordan Furlong

Don’t be afraid of Twitter. It’s a great resource – use it!

(Note:  lawyer bird photo by Ben L., available here.)

We normally associate this with pursuit of the shimmering rewards of legal practice such as money or glory. Rebecca is right to suggest that these things, in and of themselves, will not make for a happy career. I know plenty of lawyers who love the practice while making tons of money and winning lots of cases, but their happiness as lawyers (and perhaps their success) has another source.

But it seems to me that one can become unhappy in the law by pursuing what might be seen as selfless objectives as well. Thus the picture of Al Pacino as Milton in The Devil’s Advocate.

My friend Teresa Collet (St. Thomas) uses the final scene in The Devil’s Advocate in lectures on professional responsibility.  Keanu Reeves’ character, having chosen a “selfless” course is hounded by reporters promising to make him a star. The movie ends with Pacino as Satan – whose temptations we might have thought Reeves as having resisted - breaking the fourth wall. “Vanity, definitely my favorite sin.”

One can go to work as a public defender or legal services lawyer because one believes it is praiseworthy and  will lead to the gratitude of one’s clients or the approbation of the community. However, virtuous this may be, doing it for the praise of others is also, depending on how you frame it, a consequentialist and deontological strategy.

I know many lawyers who represent poor people who are very satisfied with the the practice but, again, that satisfaction lies else where.

Rebecca’s invocation of virtue ethics is a pretty good take on where satisfaction might lie. It is perhaps a small quibble, but I would suggest what is (at least to me) a slightly broader ethics – call it an ethics of personal ontology. A nickel summary would be the old cliche – “to thine own self be true.”

The lawyers that I know to be happiest believe their practice is valuable and consonant with who they are as people. and allows them to use their gifts in a way which is consistent with their personal morality and of value to their clients. To identify what that is requires subjectivity- that’s the easy part – but it also requires intentionality.  A lawyer must resist being swept along by the currents of his life. Having not always avoided that, I can say to younger men and women that it is an easy and deceptive trap.

Finally, I have one elaboration and one qualification.

The elaboration: Rebecca properly worries about those whose concept of virtue is, should we say, skewed and sees consequentialist (fear of getting caught?) and deontological (recognition of the rules) as necessary correctives. She is absolutely right.

My own little addition – as someone who believes in moral complexity rather than moral relativism – is to suggest that those who do have disordered concepts of virtue are unlikely to be happy. My own sense is that, at the end of the day, very few of us claim to be or are moral relativists. Professional dishonesty is intrinsically wrong. It will not make you happy. At least not for long.

The qualification: Personal happiness is not a simple function of professional happiness. A true ontological ethic will recognize that we seek happiness from other sources as well such as friends and family. These can qualify the pursuit of one’s professional ethic and professional satisfaction. I might say – in fact I would say – the moving to academia was the best professional choice I have made and that, in some sense, I should have done it a number of years ago. But when I was a single father with significant financial obligations, it would not have worked as well.

But it seems like there’s a perception that has intensified in the past decade or so that lawyers are miserable—that we feel alienated from the profession and that justice rarely plays a role in our tedious, all-consuming work.  There’s a stereotype of a “soulless” lawyer who works to pay off debt or make more money but who feels no satisfaction with the job.    I’m not sure how true this stereotype is (see above), but it’s prevalent and widely discussed.  (Raise the Bar:  Real World Solutions for a Troubled Profession is an interesting book published by the ABA that contains multiple essays exploring the “miserable lawyer” question.)  I want my law students to become lawyers who are happy in their chosen profession, and this blog seems as good a place as any to consider happiness and lawyering.

What is it about being a lawyer that can make us happy?  Surely, individual lawyers will have individual answers to that question, but I want to think about the question broadly from a “virtue ethics” perspective.  Virtue ethics focuses on character.  Happiness is having the right character.  In other words, lawyers will be happy when they act according to virtues that are necessary for good lawyers. (But, you say, lawyers have different conceptions about virtues necessary for good lawyers; that’s true, but we’ll turn to that conundrum in a moment.)

In some ways, “virtue ethics” is best understood by contrasting it with other ethical frameworks.  The virtue ethics perspective is not consequentialist, meaning the end result is not the most important aspect of happiness.  A consequentialist would say that happiness for a lawyer happens when the lawyer receives more “of the good”:  more money, more praise, more clients, more name recognition, more “wins.”  I’m not opposed to any of these goods, but I can see how a lawyer who bases happiness on achieving these goods might quickly become unhappy.  Sometimes despite really excellent lawyering, you don’t win; you don’t make money; you get criticized instead of praised.  And even if you do “win” and get a large share of “the good,” your happiness is fleeting.  You have to keep getting more and more of the good to sustain happiness.

In contrast to this consequentialist (result-focused) framework, a deontological framework  focuses on rules.  A lawyer achieves happiness by doing her duty and making decisions according to the rules.  In a deontological framework, the lawyer is honest because the rules governing lawyers require her to be honest. (In contrast, for a consequentialist, a lawyer is honest because honesty brings in more “of the good,” and dishonesty can have disastrous consequences.)  I am all for following the ethical rules of our profession (I do volunteer work for the Office of Lawyer Regulation), but following the rules as a foundation of happiness in the profession seems insufficient.  If our only source of happiness is in doing our duty according to rules, I can see how some might be unfulfilled.

In a virtue ethics framework, a lawyer is honest because she believes that good lawyers must be honest, and she makes decisions according to that virtue (not because she gets a good result for honesty and not because rules require her to be honest).  Virtue ethics is usually an introspective project, so what matters to your happiness is your conception about what it means to be a good lawyer.  What virtues do good lawyers live by?  What if we don’t agree about that?  (Now I’m talking about the objection raised above). If your conception of appropriate virtue is bizarre (good lawyers are dishonest), then consequences and rules will help keep you in check.  Absent bizarre conceptions of appropriate virtues for lawyers, though, you are responsible for your own happiness.  And it’s not enough to say what your virtues are, you have to put them into action; you have to live by them.  According to Aristotle, you even have to seek out opportunities to live by your virtues.

You could see how virtue ethics might work for law students, too.  You could study hard because you want to get a good grade or because you want to avoid flunking out (consequentialist).  You could study hard because that’s just what law students do.  It’s your duty (deontological).  Or you could study hard because your conception of a good law student is one who diligently pursues excellence, and you are developing habits according to that virtue (virtue ethics).

I want law students and lawyers to discuss what virtues are essential for a good lawyer.  I bet we agree about honesty and diligence, but are there other virtues we widely agree are necessary?  Are there some we disagree about? That would be a fun and potentially useful conversation.  Originally I had planned to write a blog post about service to poor people as a virtue, but this post has already gotten long.  And it’s about lawyers and happiness, not about the way in which being a lawyer makes me happy.

To be sure, external circumstances can affect our happiness in the legal profession, but for those who feel alienated and unhappy in the profession, thinking about virtue ethics and the kind of lawyers we want to be might reveal some insight.

Admittedly, Lewis is not exactly a household name in 2010.  His years on the Harvard football team were 1891 and 1892, and he was a lineman.   However, the Virginia-born Lewis compiled an impressive list of accomplishments in his career, both as a football player and as a lawyer, which deserve to be better known.  For example:

(a) Lewis was the first African-American to play American college football.  This happened when he transferred to Amherst College from the all black Virginia Normal and Collegiate Institute (now Virginia State College) at the urging of his mentor, John Mercer Langston, the institution’s president.  (Langston was also one of the first half dozen black lawyers in American history and was the first dean of the Howard Law School.)  Lewis, who had never before played the game, was a member of the Amherst football team for three years.  He not only starred at football, but he was also the commencement speaker when he graduated in 1892.

(b) After graduating from Amherst, Lewis enrolled  at the Harvard Law School, from which he graduated in 1895.  During his first two years of law school, he also played for the Harvard varsity football team, winning All-American honors each year.  He was named captain of the Harvard team late in the 1893 season, making him the first black All-American and the first black to captain a college football team.  As a law student, he was also instrumental in convincing the Massachusetts legislature to enact amendments to its civil rights laws to provide additional protections to African-Americans.

(c) In 1900, legendary football coach Walter Camp named Lewis as the best center in the history of college football, crediting the quick-footed 175 pounder with revolutionizing his position.

(d) From 1895 to 1906, Lewis helped coach the Harvard eleven, leading the team to a combined record of 114-15-5.  Lewis was widely viewed as an innovative coach, and in 1896, he published one of the first guides to American football, entitled “A Primer of College Football.”  The work was serialized in Harper’s Weekly, one of the nation’s best known magazines in that era, and published by the Harper & Brothers publishing house.  In 1905, when a serious effort to ban football from college campuses emerged, Lewis was an eloquent defender of the sport and its role in higher education.

(e) While serving as a coach at Harvard, Lewis, a Republican, practiced law in the Boston area.  He was also elected to the Cambridge, Massachusetts city council in 1899, and in 1902, he was appointed to fill a vacancy in the Massachusetts state legislature. He was, however, defeated when he ran for re-election in 1903.

(f) In 1903, following his electoral defeat, President Theodore Roosevelt, also a Harvard graduate, appointed Lewis Assistant United States Attorney for the eastern district of Massachusetts.  Lewis was the first African-American lawyer to hold such a position.

(g) In 1910, President William Howard Taft appointed Lewis to the position of Assistant United States Attorney General, the highest position in the United States government that had ever been offered to an African-American.  Lewis was confirmed by the United States Senate over Southern Democratic opposition in 1911, and became a highly visible figure in the nation’s capital for the remainder of the Taft presidency.

(h)  In 1911, Lewis became the first African-American lawyer elected to membership in the American Bar Association.  Unfortunately, his election touched off an effort to expel him from the organization on the part of members who claimed that Lewis had misled the admissions committee by failing to list his race on his application.  Although Lewis was ultimately permitted to remain a member, in part because of the intervention of United States Attorney General Wickersham who wrote personal letters to each of the 4,700 ABA members, the ABA adopted a new rule in 1912 barring other black lawyers from joining the association.  (This rule was not repealed until the 1940’s.)

(i) Lewis left government service in 1913, following the election of Democratic president Woodrow Wilson.  He returned to Massachusetts where he successfully practiced law until his death in 1949.

(j) Historians of early football appear to unanimously agree that Lewis’ election to the College Football Hall of Fame in 2009 was woefully overdue.  It is also time to secure his place in the pantheon of great African-American lawyers.

In a short paper recently posted to SSRN, I have endeavored to provide a comprehensive answer to both of these questions. The first conclusion was straightforward: the relevant codes of judicial conduct are limited by their texts to judges – they have no power over spouses. Moreover, numerous advisory opinions confirm the right of judicial spouses to engage in politics. However, a judge must clearly separate himself from the political activity of his spouse.  Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the paper identifies the relevant standard and proposes a framework for evaluating cases that may arise in this circumstance. I conclude that Mrs. Thomas can fully pursue her new organization’s mission without compromising Justice Thomas’s role on the bench.

First, Myers suggested that each of us find an area of law that we fit into and enjoy. 

Myers said that he had seen people who were not in the right firm, or the right type of law and these people tend to be miserable.  Myers suggested that we give consideration to ourselves to find the area of law that we would enjoy, and be persistent in looking for jobs in that area.

Myers proceeded to go through an article that he co-authored in April 2003 in the Wisconsin Lawyer entitled, “Are We Really Raising the Bar?”  Myers explained that people don’t come to lawyers simply because they want a lawyer, but because they are in a crisis.  He explained that you must look at what the client really wants, and what they are thinking even emotionally, and Myers explained that the client’s emotions are never wrong.  These feelings “may be irrational, but they are never wrong.”

Myers stressed the importance of listening.  He stressed the importance of listening to clients about what their goals are, as well as listening to colleagues and the concerns of opposing parties.  He also stressed the importance of returning phone calls.  Myers stressed that improving these skills can do a lot for people’s views of lawyers.

Listening to Mr. Myers for almost two hours was very interesting.  In my very short time in law school, I’ve read through cases, looked at the reasoning of courts, and have attempted to discern rules.  It was interesting to take a step back and realize that there are real people on the other end of these problems, and ethical considerations that need to be taken into account.  The class period was great way to bring a lot of material that I am encountering into a big-picture framework.

As Myers was giving us advice he stated that all of our records were at this point probably untarnished, and explained that if we think through things ethically, we can keep them that way.  Ultimately, he pointed out, it is better and healthier for each of us, and for the profession.

One issue of importance to the ABA during my formative years as a lawyer (and even now) was its role in the vetting process for federal court nominees. Having joined the legal profession in 1982, I was quite familiar with the burgeoning culture wars, including their cousin, the judicial appointment wars. I never thought much of the ABA’s efforts to control (or at least channel) judicial selection through its Committee on the Federal Judiciary, particularly after it couldn’t determine, based on its own “non-ideological” criteria, whether Robert Bork was highly qualified, qualified, or a hopeless disaster in the making. I don’t mind the ABA’s efforts to evaluate federal judicial nominees; what bothers me is that it claims to do so as an independent, neutral, unbiased expert.

But neither its history nor its tiresome efforts to wield an oddly refractive kind of political influence is what really bothers me. No, the ABA does harm because it can’t get it right on what should be its two most important areas of concern: legal ethics (this Part) and legal education (Part II). 

Several years ago I wrote an article titled The Ethics of Copyrighting Ethics Rules, 36 U. Toledo L. Rev. 235 (2005). The article was a result of my unsuccessful effort to put the ABA’s Model Rules of Professional Conduct on my website for the use of my students in Professional Responsibility. The cost of the books reprinting the Model Rules is much more than it should be. The Model Rules are important to the extent that they are tested on the MPRE, which is required in Texas and nearly all other states. But because most of my students will practice in Texas, I can use the Texas Disciplinary Rules of Professional Conduct as my basic set of rules. I could use the Model Rules as a comparative set of rules and as the genesis for the Texas Rules, giving students a sense of how variations of rules arise and how to think about the policies supporting those variations. The idea was to put the Model Rules and Texas Rules in frames on my website so students could make side-by-side comparisons, allowing them more easily to see what was the same and what differed.

The ABA claimed a copyright on the Model Rules. I called (and wrote) it and asked for permission to reprint the Model Rules on my website. It refused. Hence the article, which traced the background of the ABA’s role in crafting rules of ethics, in copyrighting those rules, and in using them as a profit center. Copyright law was such that the ABA leadership likely never considered copyrighting the Canons of Ethics (1908), which were taken in large measure from the Alabama State Bar Association’s code from 1887 (which in turn borrowed from George Sharswood’s book on legal ethics first published in 1854). The 1970 Code of Professional Responsibility was copyrighted, but the ABA did not enforce its rights. For example, the ABA sent out 80,000 copies of the Code at no cost during the first four months of 1975 alone! Complimentary copies of the Code (and 1983 Model Rules) were available for free from the ABA from 1970 through 1985.

The ABA began its efforts to control its copyright only with the adoption of the Model Rules. I suggest the ABA did so because it saw the Rules as a hitherto untapped revenue stream. It had in the 1970s used its size and power to coerce law schools into requiring students take a professional responsibility course (the “pervasive” alternative was simply a sop to Harvard), and then encouraged the National Conference of Bar Examiners (NCBE), an organization created by the ABA, to create a multiple-choice examination on the ABA’s version of the rules of ethics as a step to licensure. The NCBE did so by 1980. When you consider that about 45,000 persons take the MPRE each year, and about the same number take a class on Professional Responsibility, selling the Model Rules can generate a tidy sum. To make students pay for what was originally understood as a service to the public is even more grating to me. My thought was to find a state that had adopted the Model Rules en toto, allowing me to bypass the ABA by reprinting the rules as the law of a state, which may not be copyrighted. Alas, the ABA keeps altering its rules enough that no state has been able (or willing) to keep up. If I were a conspiracy theorist I’d be suspicious.

The ABA’s decision to make law students pay for rules it requires those students learn to enter the practice of law may pale in comparison with the manner in which the ABA has altered its rules of ethics in the past 30 years. The Code of Professional Responsibility(adopted by the ABA in 1969 effective 1970) had a number of defects, but it was the last great hope for the profession to mold itself as a public profession. (I wrote about this in American Legal Ethics in an Age of Anxiety, 40 St. Mary’s L.J. 343 (2008).) The Code was readily adopted by states as law, often with few if any amendments. It created a three-tiered ethical system, consisting of Disciplinary Rules, a floor below which the lawyer was subject to discipline, Ethical Considerations, policies and ideas to mull over in determining what action to take, and nine Canons, general maxims regarding ethical lawyering.

The Model Rules were both a more prosaic and radical (its supporters claimed a more grown-up, modern, realistic set of rules) effort. It was prosaic in eliminating anything that smacked of idealism; the Model Rules were rules, and only rules. It was radical, for example, in its efforts to strip bare any exceptions to keeping secret client confidences, a step so startling most states rejected it.

The ABA’s fall as declarant of legal ethics was made wholly apparent in the aftermath of the Enron implosion in Fall 2001. After rejecting an effort to modify its stance on when lawyers could disclose client confidences in August 2001, Enron fell, and the ABA scrambled desperately to maintain its self-appointed role as guardian of legal ethics rules. I believe the timeline in my article, “Playing Chicken”: An Instant History of the Battle Over Exceptions to Client Confidences, 33 J. Legal Prof. 239 (2009), shows the ABA cynically cowering before Congress and later, when the dust had settled, claiming it was “speaking truth to power” by challenging the actions of Congress over regulation of lawyer ethics after Congress became bored with the issue (that is, once it did “something” by passing Sarbanes-Oxley). What the ABA refused to do before Enron it willingly did after Enron, not because it believed its earlier policy was wrong, but in order to maintain its position as expositor of legal ethics rules. Indeed, the ABA appeared willing to go beyond the demands made by Congress when its hegemony was threatened, only to walk back after the threat from Congress diminished. It showed an ABA concerned with self-preservation and the interests of its members to the exclusion of any public interest.

The answer for many populists was easy—the veterans should not be swindled by greedy money men.  However, Treasury Secretary Alexander Hamilton knew that the price of the government breaking a contract was far more costly to a young nation’s character than the ephemeral outrage that many veterans felt.  As Hamilton told President Washington, “[t]he general rules of property, and all those general rules which form the links of society, frequently involve in their ordinary operation particular hardships and injuries.  Yet the public order and the general happiness require a steady conformity to them.  It is perhaps always better that partial evils should be submitted to than that principles should be violated.”

Because history has a way of repeating itself, it should come as no surprise that the debate over contract rights versus populist sentiment has returned with a vengeance.  The first sign of trouble came last March when President Obama urged Congress to sever the retention bonuses owed to several AIG derivative traders.  The outrage was understandable: AIG had gone belly up and was only kept afloat by the public dole.  However, the retention bonuses were agreed to before the TARP bailout; abrogating them would violate a clear contractual obligation.

This did not stop some members of Congress from seeking to pass a Bill of Attainder to recoup the bonuses via the tax code.  Congressman Barney Frank even threatened AIG CEO Edward Liddy with a subpoena if Liddy did not hand over the names of the AIG employees who received the bonuses.  Just what, pray tell Congressman, did you intend to do with those names? 

Not to be outdone on the outrage meter, Republican Senator Charles Grassley stated “I would suggest the first thing that would make me feel a little better toward them [the AIG executives] is if they follow the Japanese example and come before the American people and take that deep bow and say, ‘I am sorry,’ and then either do one of two things: resign or go commit suicide.  And in the case of the Japanese, they usually commit suicide.”  Goodness.

But the low moment came in May during the Chrysler bankruptcy proceedings.  The Obama administration was attempting to spare Chrysler from bankruptcy court by selling Chrysler’s assets to a new company owned by the United Auto Workers (UAW) and Fiat.  The only problem for the administration was that a group of plucky Chrysler bondholders refused to sell their assets on the grounds that they could get a better deal in bankruptcy court.  Because these bondholders were secured creditors, they were entitled to first priority under bankruptcy law rules.  These bondholders rightly pointed out that they owed their shareholders the fiduciary duty to hold out for the best deal possible.

But bankruptcy court would have been bad for the UAW (as it was a junior creditor), so the Obama administration brought out the brass knuckles.  Thomas Lauria, the attorney for the group of bondholders, stated that his clients were threatened by the Obama administration into taking a haircut.  For a brief moment, it appeared as if the bondholders would fight it out in court, but eventually they relented in the face of governmental pressure.  Lauria said that his clients decided against a legal battle once they concluded they could not “withstand the enormous pressure and machinery of the U.S. government.”  Bankruptcy Judge Redfield T. Baum quipped that the bondholders had about as much of a chance of winning against the federal government as “the gentleman in Tiananmen Square when the tank came rolling in.”

As we dig ourselves out of the Great Recession, investors must cope with an additional risk: the threat of government abrogation of legal rights for political reasons.  Even Warren Buffet bemoaned the Chrysler situation: “If we want to encourage lending in this country, we don’t want to say to somebody who lends and gets a secured position that the secured position doesn’t mean anything.”

 Russell Kirk once noted that “[u]pon the foundation of private property, great civilizations are built.”  Ignoring these rights is how they fall.

The first half of the Top Ten list was posted yesterday here.

6. The changing structure of law firms, including specialization.

Only a few law firms were “national” or “international” in any sense of the word in 1979. The most well known was Baker & McKenzie, the Chicago behemoth. If I recall correctly, Foley & Lardner had no office outside of Wisconsin (and maybe Milwaukee) in 1979. In 1985, ten Dallas law firms had 100 or more lawyers, but none was as large as the three largest Houston law firms. One of those Dallas firms was the Cleveland law firm of Jones, Day, Reavis & Pogue (now Jones Day), which came to Dallas in 1981, and which housed 122 lawyers by 1985. Jones Day’s “principal” office is now considered Washington, D.C., according to the National Law Journal, and it has 2,492 attorneys. Large law firms must be national in order to compete effectively for large corporate business (there may be a few New York-based exceptions to this rule, but just a few). Baker & McKenzie remains the largest law firm in the National Law Journal’s NLJ 250 with 3,949 lawyers in 2009, but five firms are larger than 2,000 lawyers, even after a bloodletting in which over 5,200 lawyers at the 250 largest firms were let go beginning in late 2008. The smallest of these 250 firms has 164 lawyers, a number that creates substantial fixed costs.

Firms this large are no longer partnerships in theory or fact. 

Laws allowing law firms to incorporate as limited liability corporations, limited liability partnerships, professional corporations, and the like mean very few large law firms are partnerships in fact. Certainly in theory the relationship of partners to one another has changed dramatically. Many large law firms allow for the firing of a partner, even one who has an ownership interest in the firm. The change in the trust level at many firms may be part of the reason more have abandoned “lockstep” compensation, and why lawyers believe that they must “own” their clients in order to keep their position. How this came to be, including the timeline (i.e., did trust fall because of the adoption of “eat what you kill” or did the adoption of “eat what you kill” destroy trust among partners?), is a subject that both interests and puzzles me.

Lawyers in most firms specialize in narrow areas of law. California (1973) and Texas (1974) were the first states to create programs certifying lawyers as specialists. Specialization in medium and large law firms had already taken hold, but the “country lawyer” ideal remained for many. This change has accelerated in the past thirty years. Lawyers are engaged in narrower areas of law, as the “nation under lawyers” (in Prof. Mary Ann Glendon’s words) continues apace.

Finally, the yoke of the billable hour may at last be thrown off. The pyramidal approach of large law firms supports increasing profits per partner, but at the cost of mentoring young associates, creating a work-life imbalance that is a wonder to behold.  (A former student now working out of state weighed the “cost” of flying to Texas on a Saturday and returning Sunday to see family against the “benefit” of adding twenty additional billable hours to his/her total by staying and working and chose the “benefit” over the “cost.”)  Large clients are finally on to the perverse incentives created by hourly billing. Whether they will actually force a change in billing practices will be interesting to see.

7. The weakening of the ABA.

The ABA possessed three largely unchallenged powers when I was in law school, all of which have been diminished in the past thirty years. First, it possessed the de facto power to determine rules of ethics. Within three years of the adoption by the ABA of the Code of Professional Responsibility, most of the states (or the bar associations) had adopted it verbatim or nearly so. The Department of Justice forced the ABA to add the word “Model” to its Code in the mid-1970s, and the Federal Trade Commission investigated the ABA regarding its ban on advertising. The Supreme Court struck down mandatory fee schedules and bans on advertising. The contentious adoption of the Model Rules of Professional Conduct in 1982-83 led nearly all states to modify the Model Rules in one or many respects, and adoption of the Model Rules by states was much slower than adoption of the Code.

Second, the ABA’s power to approve law schools was trimmed by the Department of Justice when the ABA and the DOJ agreed in June 1995 to enter into an antitrust consent decree. The ABA was barred from conditioning accreditation on faculty salaries (a good thing despite its possible impact on my pay) and requiring a law school to be a non-profit entity (three approved law schools are now for-profit ventures). Other limitations on the ABA’s power to coerce law schools also existed as part of the consent decree. It should be no surprise that the ABA has, since the consent decree, been a paper tiger in the approval of law schools. When challenged on a negative accreditation decision, the ABA has backed down.

Third, the ABA was once believed above reproach in its evaluation of judicial candidates for federal judicial positions. This changed dramatically during the nomination of Robert Bork as Associate Justice of the Supreme Court of the United States. No matter your view on Bork’s nomination, the ABA lost some (much?) of its luster after those events. Though the ABA is once again in the good graces of the current administration, it is viewed by some significant number of people as not neutral and not objective in its proclamations of a lawyer’s fitness to serve as a federal judge.

8. Law school rankings and the continued increase in law schools.

U.S. News and World Report first issued its ranking of law schools in 1987. It didn’t repeat this effort until 1990, and the response was sufficiently favorable to become one of the magazine’s best-selling issues, spawning related rankings lists for other professional and graduate schools as well as undergraduate institutions. Deans of ABA law schools publicly decry the ranking of law schools and privately attempt to manipulate the rankings. The Annual Guide of U.S. News spurred the ABA and Law School Admission Council to publish a competing guide, the ABA/LSAC Official Guide to ABA-Approved Law Schools, an official guide that fails to compete effectively against the Annual Guide.  U.S. News purports to rank each of the current 199 law schools, a fascinating demonstration of hubris and moxie. The question is, are you getting a good education at a price that serves as an investment for which you will receive a fair return? For me, the return is not just one’s salary, but certainly that is part of the equation. If you are spending $50,000 a year in tuition, what are you getting for that money? Are your professors better teachers at this school than another school? Are you learning skills and habits that will serve you well in the long term? Despite its shortcomings (for example, U.S. News makes no effort to determine whether faculty are good teachers, or are available to speak with after class, nor does it quantify how faculty scholarship aids in the learning environment), the success of the Annual Guide has generated other attempts (most on the Internet) to rank law schools, all of which have intensified the quest of applicants to think about a law school’s ranking, often to the detriment of thinking about a student’s fitness for a law school. All law schools have excellent professors, and all law schools have poor professors. In general the quality and quantity of faculty has improved in the last thirty years, but the strengths and weaknesses of law schools are too often ignored by applicants in favoring of the Annual Guide’s ranking.

By 1979, the ABA had approved 166 law schools. Only eight law schools were approved during the 1980s, and the same number in the 1990s. The ABA consent decree has led to an explosion of new law schools during the first decade of the twenty-first century. Seventeen schools have been approved, and an eighteenth (University of California-Irvine) is likely to be approved in the next eighteen months. This increase means that nearly 50,000 students are entering ABA-approved law schools annually. Is this economically sustainable? The business model of law schools depends on applicants believing that law school remains a worthwhile investment, at least compared with other possible investments. Does it?

9. The rise of legal news and legal newsmagazines.

Lawyers rarely made news in 1979, and those who did (I recall several lawyers who shall remain unnamed who were in the then-Milwaukee Journal on something of a regular basis) were not respected. The creation of The American Lawyer, the National Law Journal, Legal Times, and columns on the legal profession in the New York Times and the Wall Street Journal have changed dramatically news about lawyers and the legal profession. Publicists, once shunned, are now commonplace conduits for many lawyers and law firms. Internet sites (e.g., Above the Law) provide the latest gossip on law firms. Jurist offers a more serious look at legal issues. The ABA sends me weekly an e-mail of its latest stories on the Internet. The O. J. Simpson murder trial may have been the catalyst for the innumerable lawyer talking heads on cable television, as the insatiable appetite for news creates a need for lawyers to state complicated legal topics in 15-second soundbites.

10. Changes in law school curricula.

The most extensive change in the law school curriculum is the rise of clinical offerings. Nearly all schools now offer some live-client clinic for students. Clinic offerings are expensive, for a clinical professor has a limited capacity regarding the supervision of students. The Langdellian model of legal education allowed law schools to teach 75 to 100 students the traditional 1L and upper-level subjects, a very inexpensive educational method. That, combined with an almost obscene rise in the number of law school administrators in the past three decades, has meant the cost of law school continues to rise at a pace faster than inflation. Whether this is economically feasible I have questioned in writing in the past. I don’t think so, and believe a serious reckoning will soon be at hand.

A second change has been the rise of advanced and theoretical classes. One of my complaints about law school was nicely summarized in the title of an essay I read, in which the author noted that law schools offered “too little theory, too little practice.” The focus on doctrine (and more doctrine) to the exclusion of either theory or practice was a major factor in the ennui upper-level law students suffered from. I teach a jurisprudentially-based American Legal History class, a class that was not offered when I was in law school. Law and Economics is a standard offering at St. Mary’s, as are a variety of Jurisprudence courses. In addition, my colleagues have developed a number of advanced courses that, if available when I was in law school, were available only if an adjunct could be convinced to teach for very little money. Courses in Advanced Criminal and Civil Procedure, Advanced Evidence, Canon Law, ERISA and the like are some of the many options available to students. Combined with clinic offerings, law schools are better at integrating theory and practice with doctrine, though the bar exam continues to force the teaching of more doctrine than is needed.

OTHER CONTENDERS?

Other possibilities for this list included 1) the legal advertising revolution, 2) so-called “Rambo” or “scorched earth” litigation tactics and responses such as Rule 11 motions, 3) changes in rules of procedure and evidence (Daubert hearings, Batson challenges), 4) the rise of public interest law groups and other organizations such as the Federalist Society and the American Constitution Society to influence law and public policy, and 5) multi-disciplinary practice.

Some articles I’ve written that touch on the topics above:

“American Legal Ethics in an Age of Anxiety,” 40 St. Mary’s L.J. 343 (2008).

“The Ethics of Copyrighting Ethics Rules,” 36 U. Toledo L. Rev. 235 (2005).

“Law School Branding and the Future of Legal Education,” 34 St. Mary’s L.J. 301 (2003).

“Forms of Legal Practice,” in The Oxford Companion to American Law (Oxford University Press 2002).

“Know the Law: A History of Legal Specialization,” 45 S.C. L. Rev. 1003 (1994).

“Modern Legal Times: Making a Professional Legal Culture,” 15 J. Am. Culture 25 (1992).

1. Increasing competition for business by firms engaged in the private practice of law.

No other change comes close to the impact created by the increased in competition for clients. Several of the other changes listed below are a direct or indirect result of the quest for business. Intensifying competition has altered the promotion-to-partner tournament played by associates; including a substantial lengthening of the years required to reach partnership; changed the calculation of both associate and partner pay (including the dreaded “eat what you kill” compensation method); led to changes in the organizational structure of law firms; increased the shady business of case runners in the personal injury field; and affected the rules of ethics, the mentoring system of recent law school graduates, and law school applications.

One reason why some newly-minted lawyers are paid $160,000 to work at a large law firm is because those lawyers will eventually earn the partners significant profits. It is also because those lawyers are unlikely to make partner at the firm where they start. 

The promotion-to-partner tournament benefits partners only if the number of associates is larger than the number of partners, so that the base of the pyramid is wider than the top of the pyramid. Although some law firms claim that it is necessary to pay starting salaries in this range to employ the “best” people, there appears to be little evidence that the “best” people can be identified in any realistic fashion. Signals such as law school attended (Harvard, Yale) may help, but many excellent lawyers come from every law school, and some poor lawyers attended highly ranked law schools. The reason law firms pay such wages is to send signal to their clients and would-be clients that they are a “premium” firm staffed by experts, which is why the client should use them. In order to make money on those new associates, they must work extraordinary hours (that’s guaranteed to ensure first-class work, right?) so when the annual profits per partner are released to the National Law Journal, they will reach $1 million per partner, thus “proving” that the lawyers in the firm are worth every penny the clients are paying them. Has this made lawyers more satisfied with their work, happier, fulfilled, energized, engaged in the community in which they live? It doesn’t appear so, at least from the number of books and self-help manuals promoted by the American Bar Association on how to find a meaningful career in law.

2. The legalizing and bureaucratizing of the rules of ethics.

When I teach Professional Responsibility (not Legal Ethics or The Legal Profession), I tell my students to consider the nomenclature used by the American Bar Association (ABA) in its three versions of rules regarding ethical conduct for lawyers: Canons of Ethics (1908), Code of Professional Responsibility (1969, effective January 1, 1970) and Model Rules of Professional Conduct (1983). The Code of Professional Responsibility (it wasn’t the Model Code until 1975) had a number of faults, but it was the last effort to craft a sense of professionalism. The drumbeat to move away from the three-tiered structure of the earlier efforts (“axiomatic” Canons, ethical considerations “aspirational in character,” and disciplinary rules “mandatory in character”) to the Model Rules, which concerned only black-letter rules that a lawyer must not contravene, has not resulted in a better system of legal ethics, or a better system of lawyer discipline. The idea of the Model Rules was to create a “law” of legal ethics. Legalizing ethics has not improved the standing of lawyers with the general public. It has not improved the disciplinary system, and it has fractured the system of legal ethics among the states. It also had the unintended consequence of creating an entire subspecialty in motions to disqualify lawyers for a conflict of interest.

3. The rise (and fall?) of mass tort litigation.

The rise of products liability law was in full swing when I entered law school in 1979. Verdicts had begun to breach the million-dollar barrier by then, and the Inner Circle of Advocates (an invitation-only group of fifty (now 100) personal injury lawyers who had obtained at least one million-dollar verdict) was seven years old then. The most famous verdict in the 1980s was in the Pennzoil case, in which the jury awarded Pennzoil over $10 billion in damages. But even that case paled as mass tort law arose. From Agent Orange to Dalkon Shield to DES to asbestos and silicosis cases, personal injury lawyers made incredible amounts of money. The culmination of those cases was the tobacco litigation, initially generated by Richard “Dickie” Scruggs, a Mississippi lawyer who funded the case with his own money and earned a huge return on his investment. The amounts of money were apparently large enough to ensnare the then-Attorney General of Texas, Dan Morales, who, along with an attorney named Mark Murr, was indicted in March 2003 for mail fraud in relation to the tobacco suit. Both later pled guilty, and Morales also pled guilty to tax evasion. The subsequent Texas tobacco litigation included a “Big Five” (but not Joe Jamail of Pennzoil fame) of lawyers. They received a fee of $2.3 billion, later increased to $3.2 billion! Scruggs’s downfall was a later plea of guilty to conspiracy to bribe a judge in another case. In 2005, federal district court judge Janis Jack dismissed a multi-district mass tort case involving claims of silicosis (caused from inhaling silica dust) allegedly suffered by over 10,000 plaintiffs. The court held that the diagnoses of silicosis were not reliable (indeed, spectacularly unreliable), and ordered plaintiffs’ counsel to pay the costs for the expert testimony hearing over which the court had jurisdiction. The Vioxx litigation suggested a continuation of mass tort cases, but its viability is unclear.

4. The bar examination.

I remember going to Madison on Monday, the day after graduation, and being licensed to practice in the State of Wisconsin. By Tuesday I was sworn into the United States District Courts for the Eastern and Western Districts of Wisconsin and so could practice in any trial court in the state. I moved to Washington, D.C., where less than half the applicants passed the bar exam. As a teacher, the bar examination has loomed large. The Multistate Bar Examination (MBE), a multiple-choice examination (200 questions in six hours, with a one-hour break, on six subjects, Constitutional Law, Contracts, Criminal Law, Evidence, Property, and Torts) was tripping up a number of our students, so we have focused on both essay and multiple-choice questions in 1L classes. For a number of law schools in the mid-1990s, a decline in bar-passage rates led to increased academic attrition, something that had largely fallen by the wayside in the 1980s (the old saw, “look to the left, look to the right, one of the three of you will not be here next year,” was ancient history).

It appears that one consequence of Watergate was the initiation by the ABA of a requirement that all law schools teach legal ethics. That development was followed by the creation of the Multistate Professional Responsibility Examination (MPRE) by the National Conference of Bar Examiners (NCBE), a multiple-choice test on ethics! The MPRE was first given in March 1980, and now is given by all states. It is a poor substitute for ethics training, and makes the teaching of Professional Responsibility more challenging (maybe more fun as well because so challenging) because some students see ethics as simply rules to memorize. Even the NCBE seems dissatisfied with the “ethics” learning taken from the MPRE.

After the development of the MBE and the MPRE, the NCBE created the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT), both of which are used by a minority of states. The goal of the NCBE and the ABA is a national bar examination, which is being tested this year.

Whether Wisconsin law schools will be able to keep the diploma privilege alive is in some doubt. It is clear to me that the bar examination does little to prepare a person for the practice of law, and can be used to restrict entry into the profession in ways that harm the public.

5. The consonance and nationalization of law.

Efforts to reduce or eliminate the differences in law among the states dates to nineteenth-century treatises, Langdell’s jurisprudential view of law, and the creation in the late nineteenth century of the National Conference of Commissioners on Uniform State Laws. The most important development of the NCCUSL was the Uniform Commercial Code. The American Law Institute (ALI) gave us the Restatements and Model Codes. This consonance has continued. The success, for example, of the Federal Rules of Evidence (1975) as a model evidence code for states and the continued reliance on Restatements (now Restatement (Third)) explain in part the reduction in “dissonant” state laws. What is too often left out of this picture is the increasing use by the federal government of its spending power to end legal “dissonance.” The legal drinking age in Wisconsin was eighteen years old when I was growing up. It changed as a result of the federal government’s decision to tie the expenditure of highway fund monies to a change in state law. The state was not required to change its law on the legal drinking age, but if it didn’t, it would lose most of the federal government’s hefty subsidy for highway construction and maintenance. The federal government also mandated in the same fashion the 55 mph speed limit and a law permitting a motorist to make a right turn at a red light (or a left from a one-way street to a one-way street). Louisiana famously tried to buck the system regarding the legal drinking age. It failed and joined other states. Almost quietly, the federal government has federalized much of non-divorce family law through the adoption of the Child Support Enforcement Amendments of 1984, the Family Support Act of 1988, and the Child Support Recovery Act of 1992, known as the Deadbeat Dads Act. The unintended consequences of these changes have not been adequately explored.

Look for the remainder of the Top Ten in a new post tomorrow.

Those facts should not surprise present and former Marquette students: we were presented with the professional dangers of social networking during new student orientation.

It likely was only a matter of time, but it seems that state ethics committees have turned their attention to the judiciary.  The Florida Judicial Ethics Advisory Committee released an opinion last month that, among other things, finds it inappropriate for a judge to “friend” lawyers on social networking sites when those lawyers may appear before that judge.

The Committee’s opinion is interesting because it takes aim not at the substantive statements of a judge or lawyer, but at the appearance of impropriety created by a lawyer’s inclusion on a judge’s friend list.  The Committee explains:

The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages.  To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.

Canon 2B states:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

According to the Committee, friendship status violates the second clause of Canon 2B:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

Yet the Committee declined to set the same bar for judges’ campaign pages on sites like Facebook, stating that lawyers may be “fans” of an election effort without raising similar questions of undue influence so long as the manager of the judge’s page cannot “accept or reject the lawyer’s listing of himself or herself on the site.”  Presumably, the affirmative act of accepting a “fan” would mirror the process by which judges and lawyers list each other as friends on their personal pages, raising questions of special influence.

The question now is whether other states will follow Florida’s lead or adopt even stronger measures to limit the effects social networking could have on the integrity of the judiciary (admittedly, I have not done extensive research on this topic, so perhaps some states already have similar rules in their judicial codes of conduct).  Ultimately, this ruling may mark the opening of a new front in the judicial impartiality debate, which currently rages over the effects of judicial campaign finance and rhetoric (see Professor Richard Esenberg’s recent blog post).

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for ”finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that ”the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

Judge Fine concedes that demonstrably false statements are not constitutionally protected. But suggests, however, that the truth and falsity of political speech as nonjusticiable, i.e., not for judges to decide. (Indeed, he also seems to believe that the legislature could not pass upon the question either, saying that the election is the only forum in which truth and falsity can be assessed.)

I suppose that, in some metaphysical sense, there may be a distinction between constitutional protection of speech and the constitutional proscription of the examination of such speech by any arm of government, but, if there is, it is passingly small.  Constitutional protection of speech is some measure of freedom from state interference.

Indeed, Judge Fine seems to be saying that the problem is with the rule and not necessarily the idea of sanctioning the speech at issue here. Thus, he emphasizes that he is holding the rule prohibiting knowingly false statments to be facially unconstitutional.

He clearly regards the prohibiton of “false” statements to be vague, i.e., he wants more guidance for courts than a simple admonition against knowing falsity before permitting sanctions on political speech.

But what would that be? There is certainly no blanket First Amendment protection against the judicial assessment of the truth and falsity of political speech. In the defamation context, the Supreme Court has permitted the imposition of liability for false speech that is defamatory if it is made with knowledge, or in reckless disregard, of its truth and falsity. There are those who argue – and with good reason – that the assessment of the veracity of political speech should not go past the defamation context, but that’s not what Judge Fine says – at least not in so many words.

It may be that Judge Fine wants a more objective standard of truth and falsity than one in which a tribunal may interpret a statement to identify the false implication of a collection of literally true statements. If that’s so, then  doesn’t his his view elide into that of the majority? They read the rule strictly to require finding an explicit and literally false statement. Perhaps he would uphold a rule that required a finding that a discrete claim is literally false.

How to teach ethics and morality, or even if it is appropriate to do so, has been a much discussed topic in the legal academy, going back at least to the Watergate Crisis of the mid-1970’s.  One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students.  Should the course be primarily about the formal rules governing lawyer conduct or should it focus on the ethical conduct of lawyers separate and apart from the rules that govern them?  Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.

Marquette’s experience has reflected the uncertainty over the proper name for the course that used to be universally known as “legal ethics.”  While the course at Marquette traditionally was called “Legal Ethics” at some point that title was abandoned, and the over the past twenty years it has been known variously as “Professional Responsibility,” “Law and Ethics of Lawyering,” and the current “Law Governing Lawyers.”  At Marquette, the term “ethics” was in the course name, then it wasn’t, then it was brought back, albeit in a secondary position to “law,” and then it was dropped again.  Although the current course description refers to “ethical principles” they are listed as second to “legal principles,” and the course’s focus is described as primarily a “study of the principal ways in which lawyers are regulated.”

From 1997 to 2000, Marquette had a second required course on the legal profession, called “The Lawyer in American Society.”  Initially, the primary text for this course was American Legal Ethics by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School.  Shaffer’s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer.  After the first year, the Shaffer text was abandoned, although one section did replace it with another Shaffer book entitled, Lawyers, Clients, and Moral Responsibility. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.

Why does Marquette Law School, a branch of a Christian university, seemingly have such difficulty in holding itself out as a teacher of ethics and morality?   Why don’t we still call the course “Legal Ethics”?

I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do.  But at the level of course names, we seem to be reluctant to use words like “ethics” and “morality,” as our inability to settle on a permanent name for our required course on professional obligations suggests.

This phenomenon is not limited to Marquette.  As an experiment, I examined the web pages of 20 leading law schools to determine how each school deals with the question of what to call its basic course in professional obligation.

Of the twenty schools, only Notre Dame refers to the course simply as “Ethics,” but five others include the word “ethics” in the course title.   Northwestern still uses the traditional “Legal Ethics” and at Washington University, the course is “Lawyer Ethics.”  Other schools combine “ethics” with other concepts as Marquette did in the most recent former name of the course.  The University of Michigan uses “Ethics and Law of Lawyering—the Marquette version of this switched ethics and law.  At the University of Chicago, the title is “Legal Practice and Ethics” while it is “Ethics, Business, and Lawyers” at the University of California-Berkeley.

The most popular name for the course is the ethically neutral “Professional Responsibility” which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA.  Wisconsin, apparently to emphasize the multiplicity of obligations, calls it “Professional Responsibilities.”  At NYU, it is “Professional Responsibility and the Regulation of Lawyers;” while at Yale it is “Professional Responsibility and the Legal Profession.”  Harvard, being Harvard, uses its own name, “Legal Profession.”

If law schools do decide to follow Crittenden’s recommendation and focus much more explicitly on ethical and moral behavior on the part of lawyers and clients, a good way to start would be to return to the use of “Legal Ethics” as the name of the basic courses in … legal ethics.

I will acknowledge that teachers of this course in Wisconsin do face a type of pressure to orient their courses around the formal rules governing the practice of law that does not exist in other states.  Forty-six states now require prospective lawyers to take the Multistate Professional Responsibility Examination, a separate examination that requires knowledge of the American Bar Association’s Model Rules of Professional Conduct.  Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules.  Three of the other four states test knowledge of ethical rules as part of the regular bar examination and the topic is covered, sometimes extensively, in bar review courses for those states.

Wisconsin’s diploma privilege, however, means that the only exposure that students at Marquette and the UW receive to the rules governing law practice is what they are exposed to in their required Professional Responsibilities or Law Governing Lawyers course.  However, I do not find persuasive the argument that there is not time in this class to provide both a thorough explication of the Wisconsin Rules and to challenge students to think systematically about the moral and ethical obligations that follow from bar membership.

I, for one, would be happy to see the name of our course returned to “Legal Ethics.”

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

Similarly, when a lawyer’s online activity belies what he’s told his superiors or the court, trouble can follow.  According to the New York Times article, a lawyer asked a judge for trial delay because there was a death in his family.  The judge granted the delay, but noticed on the lawyer’s Facebook page that while there was indeed a death in the family, there were also a number of posts by the lawyer about partying and motorbiking.  When the lawyer asked for a second delay, the judge denied his request and notified his firm.  Repercussions for such conduct may be not only the loss of one’s job, as it might be for others in society, but also fines and discipline by the state’s board of bar examiners or other office of lawyer regulation.  In fact, some lawyer licensing organizations are considering or adopting policies whereby they examine applicants’ social networking sites as part of the licensing process.    

This topic, which can be broadly categorized as the professionalism of the younger generation of lawyers, is a topic that is often talked about in the legal academy, particularly among those of us who teach legal skills.  Our students are of a generation that has grown up with email and the Internet, with reality television shows, and a penchant for revealing to the public their personal lives and thoughts. 

However, most practicing lawyers grew up in generations that emphasized a certain formality of one’s conduct, and law has always been a more conservative profession than most.  The influx of a younger, more open generation into the profession means that there will inevitably be a difference in how each defines what it means to be a professional.  A younger lawyer would likely see nothing unprofessional with posting a rant about the partners at his firm, especially if he doesn’t expressly name them (e.g., “Suffered through a two-hour meeting today with the boring partner and the a-hole partner.”), whereas an older lawyer, who may think the exact same thing, would find such a public disclosure wholly unprofessional. 

 There are, I believe, positive aspects of social networking.  When life is so hectic, it’s nice to quickly catch up with family and friends all over the country by checking status updates on Facebook.  But not everything that goes on with my family and friends is something that I want to know – or think I should know.  There comes a point when what’s posted is too much information (TMI).  And most of the time, TMI often translates into “unprofessional,” especially if you’re a lawyer or lawyer-to-be.

Truth be told, it’s not easy to keep client service in mind.  We think of ourselves as practitioners of the law–and we are–and we often want to do things in the way we see as “right” or interesting or novel. When I say “right” I’m talking about your professional opinion about the way things ought to be done, not an ethical or moral rectitude. But sometimes our clients don’t want or need things done the way you or I think they ought to be done. Sometimes clients want interesting or novel thinking, and sometimes they don’t. That’s when it can be difficult to remember that your job is to serve your client and not simply to practice law by your own lights.

Consider a poignant example. I recently sat in a room with one of my company’s outside counsel who is handling a large litigation for us.  She enjoyed telling me the story about defending one of her first big cases in which damages to her client could have been in the range of several tens of millions of dollars. The case settled for closer to ten million, and her client celebrated the result. She thought the client had gone insane: who celebrates losing ten million dollars, and not clearing their good name in court to boot?  But her feelings demonstrate the disconnect between a then-less-seasoned attorney and her client. She wanted to try the case and score a “win”; the client wanted to minimize risk and expense, and believed that settling the case for a fraction of the potential damages was the way to achieve that goal.  She did not have a good understanding of her client’s view of the world, nor of her client’s goals at the time.  If she had, she would have celebrated the “win” with the client rather than doubting the client’s sanity. 

Talk to your clients. Understand their goals. Discuss various ways to achieve those goals. Realize that your client may desire a result or a way of getting to that result that is not what you would have chosen. Then go out and deliver what your client asked for. You’ll find this to be a successful  business model (gasp!).  Lawyers are notoriously bad business persons, but at a minimum we should be good listeners. And if listening leads to action and good communication between you and your client, you’ll find that your legal practice is ultimately more successful and more fulfilling. If you don’t listen to your clients, you may find that you don’t have much law to practice.

This is not to suggest that you should avoid communicating frankly with your clients when their expectations are out of whack. Quite the opposite. You are the professional, and the subject matter expert. But sometimes clients tell us their goals and we go right to the list of reasons why those goals can’t be achieved. Before you do that, take a moment to think outside of the box. Can you do something differently, or approach the problem in a different way, in order to deliver results for your client?  Talk it over; think it over; be creative and thoughtful. And once you’ve looked at the problem from all sides, communicate with your client about realistic expectations.

One final thought on client service: win the easy ones (as a certain Marquette University Law School Dean likes to say). If your client has a deadline, meet it. If your client wants the work product to be in a certain form, make it so. If your client wants to be updated on a specific schedule, then update them accordingly. You’d be surprised–or perhaps you wouldn’t–how many lawyers fail miserably at these very simple tasks. When you can’t deliver on these basic requests, when clearly communicated to you by your client, why should anyone think that you can deliver good work on more complicated tasks?  Win the easy ones and you’re 90% of the way towards making your clients happy.  Remember, lawyers provide service, we don’t just practice law. Act accordingly.

In theory, this may be true, and perhaps large clients (as in those who spend enormous sums of money with their law firms on an annual basis) have put some of this theory into practice.  But I’m not so convinced that the billable hour has earned its demise quite yet.  For one thing I work as in house counsel at a Fortune 1000 company and I see very few alternative billing arrangements.  (For another, I used to work at a big law firm that also saw few alternative billing arrangements.)  That is due in part to our own taste for risk.  After all, alternative billing arrangements must incentivize both parties, meaning the client may end up paying more for a given set of services than it otherwise would have under a billable hour system.

For instance, if I hire an outside lawyer to handle a litigation for my company and the lawyer agrees to take the engagement on a flat-fee basis, both my lawyer and I take on risk.  She bears the risk of cost-overruns (i.e. performing the work less efficiently than she anticipated).  I bear the risk that the litigation will turn out in such a way that it would have been cheaper for me to pay by the hour (e.g. a good settlement opportunity arises early in the case).  It is the latter risk that causes some clients to balk at the idea of alternative billing in some cases.

I may be overstating the case a bit.  I’m not personally afraid of the risk that my lawyer will work more efficiently and, as a result, make more profit.  In fact, I’m glad to see it because we’ve aligned our incentives–I get my lawyers behaving how I want them to behave (staffing cases leanly, working efficiently, focusing on lawyering and letting non-lawyers perform non-lawyer tasks), and my lawyers get to earn more money and act more like lawyers, instead of churning out billable hours on menial tasks that don’t require a law degree, or perhaps even a college degree.  But I know other in-house lawyers who are afraid of the risk that the current iterations of alternative billing arrangements just misalign incentives in other ways and create the risk that they’ll pay more than they would have under a billable-hour system.

The problem is viewing the lawyer-client relationship (or any relationship for that matter, if you’ll briefly indulge my pontification) as a zero-sum game.  It is not about making sure that the client wins and the lawyer suffers; although after years on end of the billable hour system, I assure you that is how some clients feel.

Instead, alternative billing arrangements will work when lawyer and client understand that both must benefit from the arrangement.  Clients can cap their exposure and create predictability for their business people, which is all most clients are after, and lawyers can stop writing down what they’re doing every minute of the day, focus on turning over the right stones instead of all the stones, and earn a good living doing it, while also sharing the risk with the client that lawsuits and legal transactions don’t always go as planned.

Until clients and lawyers figure out how to align their incentives–not an easy task–and accept that their financial relationship is not a zero-sum game, the billable hour is not going away.

Don’t get me wrong.  I’m not saying I don’t want the billable hour to go away, both for my lawyers’ sake and my own.  But I don’t believe it will anytime soon.  Inertia is a powerful force, and, as Donald Rumsfeld might say, unknown unknowns are more frightening than known unknowns.

While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures.  It is, as one text notes, law school’s “signature pedagogy.”  It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.

And students learn.  They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.”  Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.”  This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.

For all of the successes of the Socratic method, some have argued that it has serious flaws.  Most recently, Professor Elizabeth Mertz has criticized the Socratic method because of its “acontextual context.”  She notes that the Socratic method virtually ignores morality and social context in its attempt to teach students “objective” analysis.

Most lawyers will readily agree that to “think like a lawyer” is to think differently than others.    For some, this is unsettling because the rational, analytical processes one gains while learning to “think like a lawyer” can make them feel that their core values are being challenged or even changed.  Professor Lawrence Krieger, in his pamphlet “The Hidden Sources of Law School Stress,” says that “[i]f you begin to ignore your sense of right and wrong . . . in order to rationalize any possible outcome, you will dampen the ideals and values that brought you to law school in the first place.”  This loss of connectedness to one’s long-held personal beliefs affects one’s sense of self.

This shift in thinking can also mean a shift in the law student or lawyer’s personal relationships.  Several years ago, Marquette Law School alumnus Steven Radke was asked to give remarks at a reception during Orientation.  Among the many wise things Radke said was this:  “Over the next few years, you will develop a highly tuned ability to make distinctions that do not make a difference to most people, a capacity to see ambiguity where others see things as crystal clear, and an ability to see issues from all sides.  You will be able to artfully manipulate facts and sharply and persuasively argue any point. . . . [But] your spouse is not the appropriate person on whom you should practice any of these skills.”  For that matter, neither are parents, children, and friends who themselves are not lawyers.  I will never forget a classmate of mine telling a story about her mother, a lawyer, who once spent a long day in depositions.  The mother asked my classmate, then a girl six or seven, I believe, how her day at school was.  My classmate’s response was the kind of simple, non-detailed answer children are apt to give.  The mother said, “That answer is non-responsive to the question.”

It is good to remember, as Professor Lawrence Krieger says, that to think like a lawyer is “a legal skill but not a life skill.” It can be hard not to bring to our daily life situations the same thought processes in which we have been inculcated and with which we earn our living.  In fact, it probably requires as much discipline as we used in learning those processes, if not more.  I can think of innumerable occasions when I have been told by people close to me that I was “using that lawyer-speak again.”  And they weren’t meaning that as a compliment.

Then-Assistant Dean Meg Gaines once wrote in a student newsletter when I was a law student at the University of Wisconsin – Madison that “law school trains us to stay in our heads – in our rational minds.”  But, she added, “good relationships necessitate a broader consciousness,” and it was “integrating . . . our whole selves” that made us “better professionals and better people.”  I remember that newsletter article well, and I remember where I was standing in the law school when I first read it.  I can’t say that I have always been able to put aside the “lawyer-speak” and “lawyer think” when I have interacted with people close to me.  But with each new group of nervous but enthusiastic 1Ls in the fall, coming to my class in the very early stages of their legal training, I am reminded that it is important not to let that legal skill of “thinking like a lawyer” become a life skill.

Campbell served three combat deployments, two in Iraq and one in Afghanistan. In Iraq, he commanded Joker One, a platoon of new Marines that he trained and transformed into a fighting unit. They were assigned to Ramadi, the capital of the Sunni-dominated Anbar province where they engaged in daily house-to-house combat with insurgents. Campbell has written a memoir about his experiences with the platoon called Joker One: A Marine Platoon’s Story of Courage, Leadership, and Brotherhood.

You can read the NY Times Book Review here.  Among other accolades, Campbell was awarded the Bronze Star with Valor. I can proudly declare that Donovan and I were high school classmates in Texas. Accordingly, I can personally attest that Donovan was then (and surely remains) a man of the highest integrity, in and outside the classroom, and on and off the sports field, where he excelled as a true scholar-athlete.

One episode from the angst-ridden days of high school illustrates Donovan’s character. I fondly recall that the spring semester senior year he gave up time from track-and-field and made a self-effacing foray into “my” realm of thespian endeavors, donning Musketeer garb as a commedia dell’arte palace guard in Carlo Gozzi’s Il Re Cervo (The King Stag) and standing ramrod-straight and bellowing “Sir, Yes, Sir!” USMC-boot-camp style.

At the cast party after the last performance, which would be my final show to stage-manage in high school, I choked up and felt some silly teenage tears flow. Donovan came by and shared with genuine fraternal care and without a shred of condescension, “Peter, it’s ok. I cried after our last football game.” Picture the scene: a modern Atlas and Texas-bred lineman, who had broken many weight-lifting records at school, while still graduating at the top of our highly competitive class, nonetheless (to use a popular phrase de jour), having the “empathy” to show his own feelings and console a weepy high school drama geek. At that moment, I felt like one of William Wallace’s clansmen in Braveheart.

More seriously, I can also still remember during one Theology class Donovan offered, without any Pharisaic pretentiousness, a definition of integrity: “what you did when no one was watching.” Cf. Plato’s Ring of Gyges, perhaps?  As such, I was not at all surprised to hear Donovan comment on ethics, leadership, and his professional responsibility as a Marine lieutenant in a war zone, and now as a business leader in the marketplace. From the Harvard Business blog (with emphasis added) earlier this year:

Donovan Campbell is currently a Zone Sales Leader Designate working for Frito-Lay in Dallas, Texas. He returned to Frito in September from a year-long involuntary military recall, during which he helped Special Operations Command Central start its Tribal Engagement Initiative in Afghanistan. After four years as a Marine Corps infantry officer, intelligence officer, and sniper platoon commander, including two tours in Iraq, Campbell graduated from Harvard Business School.

In this time of the public “apologies,” spin, finger-pointing, and disingenuousness and cowardice from members of both parties, one selection from Donovan’s book (on which he commented on-air) particularly struck me:

Because of my decisions, one of my Marines had lost both of his legs. It may not have been my fault, but it was certainly my responsibility because everything that happened to my Marines was my responsibility. That’s one of the first things you learn as an officer, and if you’re a leader who’s any good at all, then as you go on you know that you always err on the side of taking too much responsibility until the weight crushes you, and then your men pick you up, and then you take still more responsibility until they need to pick you up again.

Upon reading these words, I recalled a March 2005 story on Campbell’s missions in Ramadi [see p. 10ff], in which one of Campbell’s squad leaders declared, “Most platoon commanders would have positioned themselves within the platoon…[b]ut Lt. Campbell is the kind of leader who wants to be there when the initial contact is made, so he leads from the front. He always says that if something is going to happen, he’d rather it happen to him than to his guys.” I can earnestly hope that Marines, such as my brother-in-law Pfc. J.H. Bascom, serve under such “servant-leaders,” as Campbell so termed his office in the NPR interview.

I also wonder what would happen in the worlds of law, business, politics (e.g., past and present administrations), organized religion (e.g., some US Catholic bishops), et cetera, if those in positions of authority erred on the side of taking more, rather than less, responsibility for the consequences of their decisions and actions, even when they are not personally at fault. I audaciously hope for more servant-leaders like Donovan.

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

As Legal Blog Watch noted,

As a general matter, lawyers cannot use third parties to circumvent ethics rules. So what made this lawyer believe he could do this? As it happens, the lawyer offered a novel argument. He argued that asking a third party to friend a witness is no different from the practice of videotaping the public conduct of plaintiff in a personal injury case. The Committee, however, didn’t buy it:

In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.

Ultimately, the Committee found that the lawyer’s efforts to use a third party to friend a witness violated various ethics rules prohibiting fraud and deception because the effort to friend the witness would be done with deceptive intent.

Although discovery was not permitted in this case, there are clear lessons here for our clients and for ourselves in what we post on Facebook or My Space and whom we let on our pages.  These issues are only going to increase as the next generation of clients will have years of information posted on their social networking sites.

Cross posted on Indisputably.