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