Lawyers & Social Networking

computer_with_scales3An article in today’s New York Times talks about what can happen when lawyers open up online.  The article begins with the story of Sean Conway.  Attorney Conway took to his blog to state exactly how angry he was with a Fort Lauderdale judge.  He said she was an “Evil, Unfair Witch.”  But because Conway is a lawyer, his online ranting resulted his being reprimanded and fined by the Florida bar.

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.

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On What Lawyers Really Do

customer-service2Client service is not a class taught in law schools, but don’t forget that client service is at the heart of what we do as lawyers. Our mandate as attorneys is to zealously (and ethically, of course) represent our clients. So whatever area of the law you are in or going into, don’t forget that you are less a litigator, for example, than a service provider. After all, no client, no case to litigate, or will to draft, or deal to do.

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.

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Seventh Circuit Criminal Case of the Week: Carrying Unloaded Gun During Bank Robbery Puts Teller’s Life in Jeopardy

seventh circuitSimple bank robbery carries a maximum sentence of twenty years, but armed bank robbery has an enhanced maximum of twenty-five.  Should a robbery be considered armed, though, when the robber carries an unloaded weapon? 

It turns out that the armed bank robbery statute, 18 U.S.C. § 2113(d), can be satisfied in either of two different ways.  First, a robber qualifies for increased punishment by committing an assault.  As the Seventh Circuit indicated many years ago in United States v. Smith, 103 F.3d 600 (7th Cir. 1996), the assault prong of the statute is satisfied when a teller has a reasonable fear of imminent bodily injury.  Brandishing a gun — loaded or unloaded — seems almost certain to create such a fear.

The second prong, though, raises a closer question. 

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