5 Rules of Survival

We start classes on Monday, which means I've been thinking again about the first day, when I try to frame the course for students in a way that persuades them it is worth bothering about beyond the MPRE.  Part of my annual effort is the introduction I wrote for my reader, which offers five rules of survival for lawyers.  Here they are, in the hope that they might be useful to you, and that our collective knowledge might improve them:

D.    Five Rules of Survival

The best way to avoid trouble in the real world is to follow these rules of thumb:

1.     Never create a duty you don’t want to create
2.     Always be prepared to walk away
3.     Assume everything you do or say will become publicly known
4.     Never mistake the client’s problem for your own
5.     Never do as a lawyer anything you find repugnant as a person

    The first rule stems from two facts.  Though lawyers have some duties simply because they are lawyers (duties to report misconduct by other lawyers, etc.), when lawyers get into trouble it is generally because they have violated a duty they have assumed themselves.  Lawyers assume duties either by agreeing to do so, as when they agree to represent a client, or by doing things (even with non-clients) to which duties apply, such as giving advice or receiving confidential information.  Duties are the benchmarks against which your conduct is measured.  If you are unwilling or unable to comply with the obligations of a duty, don’t assume it. 

    The second rule has two aspects: (a) Always be prepared to quit a firm or fire a client; (b) always be prepared to be fired by a firm or by a client.  Either way, the bottom line is that you have to be prepared to walk away from a situation if the only alternative is to violate the law. 

    This rule may mean more than is evident at first glance.  Many lawyers get in trouble because they feel economic or social pressure to do things they know they should not do.   Modern legal practice is highly competitive.  Some lawyers compete by taking aggressive positions in litigation or negotiation, or by assuming business as well as legal responsibilities in transactions.   Competition is ethical, but it can drive competitors too far.  At some point “aggressive” lawyering bleeds into unlawful lawyering, and it is often very hard to draw the line between the two.  In general, the less able you are to leave a job or a client, the more leverage the job or the client has in situations in which you might be asked to do something your instinct tells you is wrong. 

    Your should take the third rule literally.  With modern technology, anyone who is really determined to prove a fact can pretty much do so.  The only real question is whether they care enough to spend the time and money needed to do it.  No document ever really disappears, much less an e-mail.  A friend or client threatened with personal liability is called an adverse witness.  Invoke this rule anytime you hear anyone say “they’ll never find out” or “how could they know?”  The answer is easy: they could take your deposition.   And then you have to decide between admitting the fact in question or committing perjury.

    This rule also provides warning against a dangerous but common rationalization.  It can be summarized by examples of a lesson we repeatedly see re-learned in Washington D.C.: It’s the cover-up that kills you.   Nothing is more common than for a lawyer to take some action they shouldn’t, or fail to take some action they should, and to say to themselves that they will break a rule just this once, in this one exceptional case, and then go back to following the law.  Nobody will know, they say to themselves--everybody cuts corners at one time or another.  The problem is that almost invariably the first infraction is followed by a situation in which the lawyer has to admit wrongdoing or lie.  The first lie requires another, and so on, until the original infraction, which might have been fairly minor, has borne a monster.

    The fourth rule is a reminder that you have to keep a cool head.  Economic pressures and competition for business are probably the leading sources of ethics violations, but lawyers who get too wrapped up in a case and view it as a personal contest are a close second.   There is an old maxim (supposedly originating with Thurman Arnold, a well-known antitrust lawyer), which goes like this: At some point in your career, you will face a situation in which either you or your client will go to jail; make sure it is your client.  Put differently, you represent your client in dealing with your client’s problem.  The trick is to remember that it is your client’s problem, not yours.

    The fifth rule is basic common sense.  You have to sleep at night.  You have to be able to tell your spouse, partner, or children what you do for a living, without being ashamed.  Different people will have different tolerances for different things.  Most people manage to find stories to tell themselves about why what they do is all right.  The point is not to let the pressures of work push you outside the bounds of your tolerances, whatever they may be.  In 30 or 40 years, your career will be over, and you will look back and ask yourself what you’ve done.   Spend your career crafting an answer to that question that you will be able to live with.

DM

Comments

[Steve Lubet]

Great post. Ignore the troll.

[Doug Richmond]

I want to speak to your point about being prepared to "walk away" from the perspective of someone who was for a number of years a partner at a large law firm (and an associate before that) and who now consults with law firms on professional responsibility and liability issues. I think it rare that a lawyer will ever need to be prepared to walk away from a law firm over his or her professional responsibilities. Most firms work very hard to support lawyers who voice concerns about client conduct or practices by colleagues that may be perceived as troubling. There are some firms that have unethical cultures and, should lawyers find themselves in such firms, your advice is well-taken. But those firms are the exception rather than the rule. Being prepared to "fire" a client, on the other hand, is something that all lawyers should be preared to do (and probably do not do enough).

[David Hricik]

Doug's point is true, in the main. But, I've had partners at large firms, when confronted with vile, unethical behavior by another partner, say: "He brings in a lot of money. What can I do about it?" It's not just the lowliest criminal defense client who can create the need to walk away, though they do it more often, no doubt.

[Steve Lubet]

I've consulted with many law firms -- from superlarge to very small -- on ethics issues, and I've never found the leadership ultimately unwilling to do the right thing. But the right thing is not always crystal clear. These are lawyers, after all, and there are almost always multiple interpretations of both the law and facts.

For both legitimate and instrumental reasons, firms are reluctant, if not loathe, to take actions that will either compromise clients or damage the bottom line. In the case of individuals, the pressure can be intense to preserve a client relationship or to maintain billings. Thus, borderline decisions tend to be made in favor of economically beneficial outcomes. I'm not saying that's wrong (especially when it comes to preserving client confidences), but it is certainly a fact of life.

New lawyers, therefore, ought to be aware that "walking away" should never be viewed as an easy option. Not only might it have severe personal consequences, but it might not even be the optimal solution to the problem.

In any event, it is far more important to avoid sticky situations at the outset -- including representation of problem clients -- than it is to walk away from a dreadful situation in full bloom.

It's odd for an ethics prof to invoke Machiavelli, but he often gave his prince some good advice. "In the beginning," he said, "political problems are easy to solve and hard to recognize. Later, they become easy to recognize and hard to solve."

[David McGowan]

Steve's point is well-taken. In class I invoke Mark Twain: It's easier to stay out, than to get out.

DM

[Carolyn Elefant]

I sure wish I had you as my ethics professor. My entire ethics class revolved around our professor's signature article - The Role of the Amoral Lawyer or something like that. (Can you guess who I had?) I cannot imagine my professor ever counseling us to steer clear of actions that we find repugnant as individuals.