“The 21st Century Lawyer Manifesto” – a respectful dissent

Long post.

In general, we Americans favor the doer over the critic.  Theodore Roosevelt lost his charm for me once I learned that he attacked American Revolution founding father Thomas Paine as “that filthy little atheist” – inaccurately, Paine being a Deist and scathing critic of nearly every form of Christianity that he encountered.  Roosevelt’s “Citizenship in a Republic” speech given in Paris in 1910 has become famous over the last century for its reference to the “man in the arena” being superior to the mere critic.  Life is hard and getting things done, especially innovative things, is quite hard.  In roughly similar spirit, General Patton urged that a good plan violently executed today is superior to a perfect one next week – favoring action over a third or fourth editorial criticism of a battle plan.

The analogies from military or sporting life fall apart somewhat in the context of law practice, insofar as we attorneys do not face the risk of immediate maiming or death (end-stage capital cases aside) for ourselves, our subordinates or our clients if we fail to act immediately and boldly.  Our profession is a careful, detail-oriented craft dealing with multivariable problems that no quadratic formula can solve.  Our squad, er, office will not die of shrapnel wounds or dysentery overnight if we take the time to research our cases.  War is theoretically governed by laws of war, the Geneva Convention, etc., but those laws matter less to those who are trying in the field not to die; the laws of war matter to civilian command and the REMFs (not safe for work, look it up), i.e. the critics of a given tactic or strategy.  In law practice, we live and breathe not only the law of our cases but the ethical commandments of our profession.  Those ethical concerns take precedence over good plans violently executed by the bold and the brilliant.

Hence we arrive at the provisions of “The 21st Century Lawyer Manifesto.”

Attorney Rachel Rodgers of Phoenix has become something of a phenomenon among “Generation Y” attorneys and entrepreneurs.  Licensed in New York and New Jersey, Rodgers has designed and maintained several websites and blogs including a up-style law firm portal far exceeding those of most law firm websites, a regularly maintained video blog on that site and a companion site entitled “Freedom is the New Rich“, with most of her marketing material aimed at “Generation Y” attorneys and start-up clients.  A brief use of “Ye Google” will show that Rodgers has had her critics regarding both style and substance over the last year or so, some of it in my view unnecessarily personal and nasty and some of it of substance on the issues.  This post is not an attempt to rejoin the favorite attorney blawg bloodsport of the last year – beating up on one attorney ad hominem – but will provide a philosophical response to what is essentially a philosophical document: Rodgers’ manifesto for 21st century attorneys.

Rodgers published her manifesto apparently in September 2001, but it reads in large type in the center of the front page of her Freedom is the New Rich site as of today (23 March 2012).  It’s arguably old news, but still applicable today as Rodgers’ manifesto for the next generation of attorneys.  One may purchase a “Limited Edition” stylized printing  of the manifesto for $48 USD, but may request a downloaded copy for free.  To quote the manifesto’s provisions (copied here in toto under privilege of copyright fair use):

  • #1 – We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
  • #2 – We embrace our weirdness.
  • #3 – We will not let being lawyers prevent us from being business savvy.
  • #4 – We will not let our past with tradition rob us of a future with innovation.
  • #5 – We will utilize technology in all of its glorious forms.
  • #6 – We value actual morality over “ethics” rules.
  • #7 – We understand that the true value of money is determined by what it costs us to make it.
  • #8 – We will not live in fear.
  • #9 – We recognize our duty to do epic sh*t now.
  • #10 – ____________________________________________ [You write this one].

Guess I will start with #1 – We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.  Why a we?  “We” were not issued a license; there was no we for me, or for any 21st century-licensee in the Bar exam.  I recall where I was – southeast corner of the Timonium Fairgrounds, overcast day, midsummer 1994; there was no “we”, just myself and caffeine and the will to get the awful thing done in one attempt rather than two.  The very claim of a “we” is hard to process.  But maybe that’s a Generation X thing; we haven’t done much in the manifesto department.  May have been too busy listening to Michael Stipe and Nirvana.

Certainly it is laudable that the Bar no longer has the invidious discrimination of the past.  My law school (Maryland) refused to allow Thurgood Marshall to matriculate, though he was otherwise qualified, due to his race.  The school’s law library is dedicated to Marshall; he died in late 1992.  I recall being stunned when a reporter from local Baltimore news interviewed a law student – me – in the Marshall Law Library about the death of the litigator and Supreme Court justice who died having reportedly refused to set foot in the school until his death.  The lobby of the library contains framed documents showing the history of the law school civil rights efforts; one of Marshall’s first law offices was on East Redwood Street, barely 6 blocks from the Jim Crow law school that denied him entry.  Maryland Law was roughly 30% African-American and about 52% women in 1994 – a far cry from the invidious discrimination of the past, though without doubt progress remains to be made.

It’s at the “T-Shirts” and “tattoos” that the manifesto loses me.  T-Shirts are simply not what one wears to get business done.  What we attorneys (if we can say “we”) have in common is our client service.  I suppose one can get a brief done at one’s home office buck naked too, but I don’t want to embrace the bucknakedness of my sisters and brothers in the Bar.  Really, I don’t.  The people I do want to see in hang-out gear are mostly not attorneys and are not part of any manifesto.  As for tattoos, while there are some brilliant litigators and drafters with tattoos, I really don’t want to see my colleagues’ uncovered flesh to see them and if they are visible in courtroom or boardroom attire, they are simply not appropriate for attorneys in  the workplace.  Maybe this makes me a bigot or square; certainly it makes me narrow-minded and opinionated, without apology.

#2 – We embrace our weirdness.  We embrace strong values, service, effectiveness, reliability, ethics – the qualities what the clients pay for (or are still entitled to if they are clients even if they don’t pay.)  The Bar should not be, or foster, a social club praising misfittery and neurotic quirks; our business is getting done what clients need and want done, consistently with the law, ethics and good judgment.  Much of practicing law – and much of all useful work – is overcoming one’s quirks, either blasting past them or ignoring them to get work  done.  Certainly hyperconformity on non-ethics issues can be unpleasant and counterproductive but there is room in the profession, even within conservative corners of it, for individual style.  Our weirdness doesn’t help us get the job done and the job is what matters; at best, it’s something for when the work is done and we can put on those plaid pants that we don’t wear to the office for obvious reasons.

#3 – We will not let being lawyers prevent us from being business savvy.  What makes the practice of law distinct are legal training, licensure and professional ethics (including both the codified rules and the values that the bright-line rules aim to protect).  Law school does little to promote business savvy most of the time, but there’s nothing inherently antibusiness about law school itself; one can learn a substantial amount about business by learning about how law evolved both to accommodate and restrain business.  Licensure and ethics, on the other hand, restrain business models.  One cannot (in most states and probably all) solicit strangers with handbills for legal services.  One cannot claim specialization in most states at all, and only under certain conditions in others.  Taking a “piece of the action” in a transaction by receiving stock of a newly formed entity generally poses an ethical conflict for an attorney – a waivable conflict usually, but still a conflict.  The list continues.  Ethics restrain many business models for attorneys; that why the codified rules are there – as bright-line restraints lest we forget our common sense and professional role..

On its own, this business savvy provision might not be harmful.  “Business savvy” is hard to define, but read in the context of rest of later manifesto provisions it seems to suggest “doing business in a way that tests – or transgresses? – ethical bounds.”  Possibly I misunderstand this provision but the purpose of a Manifesto is, in fact, to make matters manifest i.e. clear and conspicuous.

#4 – We will not let our past with tradition rob us of a future with innovation.  In itself, this is probably harmless.  Lawyers who were sworn in in 1994 (as was I) had their legal education entirely pre-internet as it didn’t exist as a word, but their entire professional lives have been in the post-World Wide Web (remember that phrase?) era.  At one point, the dictation machine was an innovation; so was the ball-point pen.  Using modern business tools to get bona fide business done shouldn’t be a problem.  To a large extent, modern word processing tools were driven by commercial demand from the Bar to replace typewriters, I am told.  Even cloud computing (a fancier set of practice tools operating in the same “pseudo-space” that email did and does) is now considered broadly acceptable so long as attorneys engage in due diligence.  But what sort of innovations are contemplated here?

If the innovation involves new business models, the mere novelty of such business models shouldn’t condemn them.  Rodgers raised the point bluntly in a post at Solo Practice University (where she and I each teach online courses and where she also blogs) in a post entitled “Ethics Should Not Be Used as a Weapon Against Young Lawyers.”  I would agree with her specific point: ethics should not be used as a weapon, period, because ethics exist not to promote attorney “gotcha games” but to protect clients.  Attorney discipline, in my state at least, exists primarily to protect the public and the position of the Bar as a servant of the public, not to punish anyone; see e.g. AGC v. Maignan, 423 Md. 191 (2011), and AGC v. Stern, 419 Md. 526, 559, (2011).

Ethics, however, are more than a mere “past with tradition”; they bind us presently and without reservation.  It is one thing – and maybe a good thing – to advocate attorney ethics reform.  It’s another thing entirely to dismiss concept of professional rules, as opposed to their specific composition.

#5 – We will utilize technology in all of its glorious forms. Well a pedant could ask whether the law offices managed by the signers of this manifesto would use slide rules, which we nerds of a certain age find glorious.  If so, they might have a shot of getting me on board.   (Oh, of a certain age…..) I have a feeling, though, that “glorious” here means “most recent” and that the “techne” of glory will derive from Apple’s or Fujitsu’s inventory.  What makes technology glorious, particularly glorious for attorneys?  In the end, it’s about fulfilling duties to clients so I guess any technology from the ball-point pen through trial exhibit software for wowing a jury with an iPad might qualify.  How technology is “glorious” is unclear to me, especially from a professional point of view; technology is useful, cost effective, safe, reliable (or not) but of questionable glory in my view.  Even if technology is glorious, law practice is about getting things done, most of them mundane and non-glorious.

#6 – We value actual morality over “ethics” rules.

Ahem.

Well, you cannot accuse Rachel Rodgers of timidity.  This is one loud “ΜΟΛΩΝ ΛΑΒΕ” to her every critic on ethics issues.

A bolder challenge to the very concept of ethics rules, with ethics in the quotes of sarcasm, I have not read elsewhere.  Every state has ethics rules and every state has an enforcement mechanism for those rules.  If I were to find myself in receipt of an ethics inquiry, I personally would not want a declaration of war against ethics rules as a concept on my website, but becoming a father of two boys with disabilities takes the Thermopylae Spartan out of a lot of us.

Aside from her greater boldness than mine, the issue remains: is it proper for attorneys as a collective to rely merely on “morality” or instead to have a system of rules defining attorney conduct and misconduct?  I’d say no, that we need not only a sense of morality (which may vary dramatically because, after all, we come in all shapes, sizes, T-Shirts and tattoos) but also bright-line rules, the transgression of which results in attorney discipline.  Of course, we could try to agree on moral issues and put them into rules but – oh wait, we did that and called them ethics rules.  It’s reasonable to advocate attorney ethics reform on specific rules, but I don’t think that discarding the concept of ethics rules itself in favor of a more amorphous “morality” is proper, or even possible without wiping out the profession itself.

#7 – We understand that the true value of money is determined by what it costs us to make it.  Nothing ethically objectionable about this Manifesto provision.  Reasonable people may measure the value of money differently; they own it and in the end it’s their valuation that matters.  I value a dollar because I value myself, my children, the people I love and the moral right of people who have valid claims on which I owe.  My hunch is that Manifesto provision #7 addresses one of the themes of Freedom is the New Rich, namely that time and freedom are forms of wealth or should be considered such.  Rodgers advocates a virtual practice model on her site and offers online materials to that effect.

#8 – We will not live in fear.  It would not be proper to criticize anyone’s religious refusal to fear; e.g. ” Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.” (Psalm 23:4)  As a practicing attorney of 17 years I do live in fear – not in debilitating terror but with some fear that, through inattention or insufficient knowledge or effort, I may let some client down.  Most of what I do can be remedied through money; that’s why my malpractice insurance is paid timely he same way that my car insurance is, though I have never had to put either one to the test.  Some of what I do cannot be remedied with mere money; money doesn’t really remedy time in jail when jail wrecks what matters most (career, family relationships, going to daughter’s graduation, etc.)  So yeah, I fear and most responsible lawyers I know have some fear.

Military training doesn’t teach not to fear; it drills performance in the face of fear, chaos, limited information, strained command chains, low supplies and nighttime darkness, and teaches courage as a healthy response to fear.  (To avoid misunderstanding, I am NOT a veteran of any military service.) Maybe I agree with #8 to some extent; it might just be a semantics issue.  Fear makes you smart; terror makes you quite stupid and unable to get things done well.

#9 – We recognize our duty to do epic sh*t now.  Well, I don’t know what this means precisely.  It’s not the sort of language I usually use in a professional context.  Insofar as I understand it, I disagree with it, especially as aimed at the target audience of Gen Y attorneys who, by age cohort, are very newly licensed in almost all cases.  To whom is the epic sh*t duty owed, anyway?

I don’t know what “epic sh*t” is precisely but I guess it means high-impact, high-dollar, high-prestige legal work.  If that’s the case, is the risk remotely worth it?  If you don’t have epic levels of malpractice coverage – I guess epic per occurrence, 3x epic per annum – you have no business taking on epic work.  Even if you do have the coverage, that’s only step 1.  Are you competent enough to get the work done, including competent enough to avoid or at least correct skill-based errors and other errors timely and without damage to the case?  Are you competent enough not only to do the work, but to advise the client on reasonably foreseeable consequences of the work being done properly or improperly?  Part of competence is knowing where you are, not where you hope you are, on the spectrum of competence.  Most importantly, a lot of good legal work is non-epic and designed to be non-epic (i.e. hidden, confidential – not the material of Nordic sagas.)

I have several advisees/mentees in Maryland, all of whom might be reading this post of mine but if they only read this response to #9, I’m happy.  Early on is NOT the time to do “epic [stuff]” – at least not in representing clients.  It’s the time to train, develop skills, practice, argue with mentors, get more mentors, watch and take notes as others handle major cases.  It’s time to second chair some cases perhaps.  It’s time to sit in on depositions and watch how black belt cross-examination works, to pitch in on a motion for summary judgment or a suppression hearing.  If you want to do epic stuff, then break the record for the biggest fundraiser for charity in your town, run the triathlon or win your local tango competition.  Early on, you owe yourself and the Bar the duty NOT to do “epic stuff” with the law license until you are strictly competent and able ethically to take on high-risk work.  Accordingly, I think that #9, for new attorneys, is incorrect.

#10 – ____________________________________________ [You write this one]. Not sure if it’s a manifesto if it’s a fill-in-the-blank.  In general, I am not ready to sign on to a document that other people can fill in later, for the same reason that I don’t hand out blank checks signed.  While this might be over-lawyering the document to death, it is in fact a LAWYERS’ manifesto and the “blank check” line speaks to my philosophical objections to the concept.

If I had to sum up how I’d fill in #10, I would it as follows: (LEAST OF MY CLIENTS) > (SUM(#1:#9)).  This manifesto says a lot about “we”, a lot about style and “glorious” tech and weirdness.  It makes a headlong assault at legal ethics as a category.  It commands that new attorneys fulfill their alleged duty to do epic things NOW without waiting for additional skills to develop.  The document doesn’t discuss skills, self-improvement, mentoring (either seeking or providing it), pro bono work, competence or clients.  I cannot sign on, and I cannot recommend that my mentees in Maryland sign on.

Having written a negative assessment of the manifesto, I will say what I think is admirable about Rachel Rodgers herself.  Though I disagree with her approach, I admire her guts.  Her eye for design and style exceeds mine by a very wide margin, and she is a significantly more effective video presenter (and, I assume, editor) than am I.  No one can deny that she has been, during the last year of red-hot debate about her practice approach, Roosevelt’s “woman in the arena” as it were.  Serious disagreements aside, I wish her well and it’s first round on me if she ever makes it to Baltimore.

Add a Comment

Your email address will not be published. Required fields are marked *