A Personal Statement About Professional Fortitude

Today’s tone will be a little earthier and more personal than I am normally willing to indulge here.  If coarse analogies offend, please go read this vulgarity-free light reading instead.

Lawyers far more skilled and dedicated than I have taken risks in their profession over the two centuries of the practice of law in this country. Would that I had learned more of their good examples in law school, and less about the useless trivial intellectual speculations of some of my law professors, who “opined deeply” while drinking down our tuition.

Lawyers who defended the targets of lynch-by-alternative-means in the South. And not only in the South, let’s be clear. Atticus Finch was a brave attorney in Harper Lee’s To Kill a Mockingbird, but his real-life counterparts have at times needed to worry about starvation for defending those whom “local justice” pre-determined as guilty – this in the pre-Gideon days when the right to counsel was even more theoretical than it is now, and local attorneys were ordered to take on cases at no charge and at the risk of considerable opprobrium in their communities.

Radical lawyers like William Kunstler who had the nerve to go inside Attica State Penitentiary during a prison riot (or, as some would maintain, an uprising). The lawyers who contributed sweat, treasure and sometimes blood to the formation of highly controversial organizations like the American Civil Liberties Union, the NAACP and (much as I myself reject their Marxist roots) the National Lawyers’ Guild, and who litigated and organized despite real fear.

Some have taken smaller, but still real, risks. Conservative stalwart Ted Olson made a lot of his fellow conservatives unhappy by standing up as an appellate attorney for same-sex marriage as subject to the Fourteenth Amendment’s Equal Protection Clause, and therefore by logical conclusion lawful. Liberal stalwart Alan Dershowitz has stood up for the free-speech rights of Nazis and Holocaust deniers to speak freely and even opposed private censorship of their speech. Whether same-sex marriage or free speech by antisemites is a “good thing” isn’t the issue; the issue is whether attorneys have the courage to get up and do their jobs when someone else tries to turn up the heat.

My examples have leaned “lefty” as a sample pool, but many examples of staunchly conservative attorneys who took risks in their professional lives in the midst of conservative legal advocacy also exist.

As some of my readers (or am I now down to “reader” in the singular?) may be aware, my law office is now involved in a case of some modest public note. This is not the place for discussions of the specifics of that case, but rather of some of the surrounding environment of that case. Many reports of “SWAT”-ing – the practice of filing or calling in false criminal reports as a harassment and intimidation tactic – have emerged in the growing narratives surrounding the “greater metropolitan case”. Who exactly is doing the “SWAT”-ing isn’t entirely clear, though I certainly have my suspicions. For me as a practicing attorney, the issue is whether I continue to do my job like a professional, or whether I start letting myself get “nervous” about having the police greet me with tactical shotguns at my front door because a “dead body” was, per some fraudulent report, being dragged out of my apartment. The positive examples of attorneys of generations past, attorneys who were also public citizens, urge maximum fortitude.

Fortunately, my local police captain was extremely receptive to my letter faxed to him describing my concerns; he assured me in his manifest professionalism today that he has gotten these sort of foolish calls before and has a highly disciplined squad who are simply not going to go “stormtrooper”, and who have been fully briefed and directed to check with him first before they assume that any report about me might be true. I had occasion to work with two of his detectives and one of his uniformed officers in January when two other community members and I got robbed at gunpoint outside my apartment; I will be seeing them again in August and September when the three suspects stand trial or plea out. So I am not particularly worried about getting “SWAT”-ted; whatever is out there doing the “SWAT”-ing should fear the police captain’s irritation, as he is clearly not in the mood to put up with any games.

I do know that there have been some petty efforts to interfere with my relationships with some legal referral sources of mine. But when I tell you I don’t care, I don’t care. I have no boss to “harass”; this law shop is mine for my clients’ welfare and I answer to no one but my clients and the courts.  That’s that.

Either you have the courage to do what needs to be done as an attorney, or you don’t. Fortunately, I do. At the risk of ungentlemanly coarseness, mine are made out of high-quality tempered American brass, and that fact settles the discussion.  Indeed, the best way to discourage this sort of nonsense is to respond to it with moral fortitude, measured, reasonable responses and, to the extent strictly lawful, vi et armis.

PS – welcome all of you visiting from Instapundit – sorry I didn’t clean up the place a bit better. Wish I had some beer to offer but alas, we don’t have “Google ColdDraft 1.0” yet installed on the site….

Joseph Amendola, Esquire, does NOT work in my law office

Why, oh why, does an attorney state the results of attorney-client work product and even attorney-client communications in front of a TV camera? Why tell Anderson Cooper whether a client communicated with you and what those communications were?

Who in the name of mighty Thor congratulates the prosecution for convicting his client of felonies? Criminal trials are not tennis matches; they aren’t about the lawyers. It’s professional to shake the hand of the opposing counsel at the conclusion of the proceedings, but don’t give your opponent that kind of laudatory treatment; the case is still active, sentencing awaits, the appeal period hasn’t lapsed, and even then it’s still a serious mistake.

Who chooses to broadcast to the universe that both the prosecution and the bench did exemplary jobs, grossly undercutting any future appeals on such issues?

Who hides behind the excuse of a lack of time when there’s six months to prepare and the case is the biggest case of the attorney’s career, as if he couldn’t afford an associate or two to pitch in? What, too many driving while suspended cases get in the way in March?

Even if these comments are somehow acceptable to the client, how does a client give informed consent to such injuries to the client’s legal position? How does this help a client at sentencing, motions to reconsider? Does the client have an available motion for a new trial or to set aside the verdict, or for a mistrial; if so, doesn’t this media foolishness damage or at least distract from that work?

We still have a duty to our clients not to damage their cases for our own camera-mugging benefits, even if clients give consent and even if that consent is fully (?) informed or even confirmed through an ethics consultation with an independent attorney (severely doubtful.) Even if they are charged with sexual offenses. Even if they are convicted of sexual offenses. ESPECIALLY in those cases.

How can an attorney claim to have valid appeal issues while ruining as appeal topics two of the major sources of appeal issues in a criminal cases: the conduct of the prosecution and the conduct of the bench!!! More generally, who benefits from these media events – Jerry Sandusky or perhaps Mr. Sandusky’s family, or whoever sells hot tubs and vacation packages to Joe Amendola? Joe’s taking of big Joe here, and not taking care of the client.

The media comments last night on CNN and elsewhere were clinics on how to violate one’s fiduciary duties to clients. I hope that every professional ethics professor in every US law school uses Joe Amendola as an example of what NOT to do. Every law student should see this mess. PA’s ethics rules are not identical to Maryland’s, but they are both modeled after the ABA Model Rules of Professional Conduct; they are about 90-95% similar or more.

But don’t believe me. Watch.

and more with Anderson Cooper (is laughing and asking “is she cute?” re: a media staffer the right comment after your client just got convicted of 45 felonies and misdemeanors?)

Rule 1.2(b) – Endorsement of a client’s views

As noted within the Law Office’s website, the Law Office hasn’t shied away from taking political stands.  It represents only workers, not management, in employment law disputes, and maintains a pro-worker, pro-union, pro-labor perspective.  It supports the legalization of marijuana, supports the 2nd Amendment as a human right – and also supports the 1st Amendment as a human right.  Some cases the Law Office won’t take, due to profound disagreements at the philosophical level or due to practical reasons.

Occasionally, an attorney will represent a client in a controversial case regarding which friends, acquaintances and the opinionated masses of social media will ask: how can you represent such a person?  Criminal defense attorneys encounter this routinely, particularly those who handle major felony work.  Many causes are unpopular and attorneys may share in the “unpopularity” of their clients in some social situations.

Some attorneys respond to such inquiries stating that they “believe in the system” or believe in “everyone getting their day in court.”  There is merit to these views, but that’s not what motivates me above all.

Lawyering isn’t a job, but a profession.  What does this actually mean?  Well, a mere commercial transaction can be of “low quality” but still valid.  Professions, on the other hand, involve major study, set and enforce basic standards with codes of ethics and duties and expel practitioners who refuse obdurantly to meet standards.  Medicine is a profession.  Accounting is a profession.  Engineering and architecture are professions, whereas interior design pretty much isn’t (it could be one theoretically and may someday be, but isn’t.)  Religious life as a clergy person is a vocation, a calling even higher than the professions, in that the minister/rabbi/imam/pastor/priest is answerable to a “higher authority” than merely her peers, to paraphrase one of the most memorable ads ever.

5 million lawyer jokes aside (not that jokes are bad), we are supposed to give back 50 hours a year pro bono in Maryland; the District of Columbia has a similar, non-enforceable “hortatory” rule.  Sometimes we represent popular causes; sometimes we represent grossly unpopular ones.  Occasionally, we get a controversial figure with many people pro and con.  Usually, we do pro bono work (when we do it, if we do it) quietly, without recognition – the unpaid UI case here, the tax advice to the disabled, indebted worker there.  The practice of law is usually the unimaginative study of the unimaginative, or so most lawyers pray; pro bono work is usually no exception.  USUALLY.

Fortunately, the rules of this profession not only urge (not mandate, at least in Maryland and DC) pro bono work under Rule 6.1 but help out both attorney and client by providing under Rule 1.2(b):

(b)  A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

This provision helps broaden the practical access to justice by not imputing to clients or attorneys the views of the other.

The ability of an client to hire an attorney – for fee or without fee – without imputing an endorsement of any clients’ views back to the attorney (or the converse) broadens the access of attorneys to clients and clients to attorneys. It’s a common sense rule: we are there to address legal issues, not to cheerlead the personal views of the client. This is particularly important when the legal battle involves the freedom of speech itself, even (especially, actually) ideas in direct conflict with the attorney’s own “political, economic, social or moral” views.

My closest friend in law school, Nancy Yellin, Esquire, died with three of her family members at the hands of a South Florida drunk driver in 1997 who was in the U.S. illegally Did I stop handling drunk driving cases? No. Did I quit advocating for clients who have immigration status problems? No. I got robbed at gunpoint immediately outside my apartment in Owings Mills, Maryland in January of this year (2012). Did the punks’ snub-nosed .38 cause me to abandon my support for my clients referred from the NRA, or lead me to abandon criminal defense work? No. If a doctor gets punched in the face and injured, will she (upon healing and returning to work) stop treating ER patients who arrive injured from mutual affray bar fights? I don’t think so.

We are professionals and we have professional work to do.

Unsexy and I Know It: Don’t Believe the Hype about Social Media for Attorneys

Long post; skip it if you aren’t in the mood.

About 18 months ago I had the honor of co-presenting a survey of social media for attorneys to a section at the Maryland State Bar Association’s Solo and Small Firm Conference.  My survey was droll and I ran on too long, to the detriment of my much more qualified co-presenter Bradley Shear, Esquire, who unlike myself is a bona fide expert on the topic who has had real-world impact on social media legislation in this state and elsewhere.  In short, I gave a long-winded 101-level survey while he gave a concise 300-level analysis of some of the social media pitfalls facing attorneys. Back then Twitter and Facebook seemed interesting (and to some extent still do), but not for the hype-marinated reasons, or axiomatic creedal claims in lieu of reasons, offered by some of the strongest advocates of social media marketing for attorneys.

Facebook has been good (mostly) for keeping in touch with old friends and acquaintances, but it has not generated one dollar in fee revenue for my practice.  Twitter ditto, and that’s fine.  I have done some pro bono work for clients who contacted me through mutual friends or acquaintances on Facebook.  (Sorry if the friends/acquaintances distinction seems cumbersome; perhaps it’s from my faux self-awareness as a German-American that I divide the world into Bekannte whom I siezen and echte Freunde whom I duzen, Facebook’s indifference to the differences between friends and acquaintances notwithstanding.) It’s also good to get the latest news or word from colleagues, particularly when active parenthood and professional pressures make it harder to socialize.  But as a “gamechanger”?  Give me a break.

Does any attorney “need” any social media platform professionally.  Perhaps Twitter or LinkedIn is useful for some attorneys in certain industries where the attorney is more than just an attorney, such as some general counsel attorneys or sports agents, where the attorney has a significant non-attorney duty set de facto.  Maybe it’s good for attorney-activists (for principle or for hire) such as lobbyists or public policy law firms – again, when the client is using the attorney for non-traditional purposes or even when “the client” does not necessarily exist.  For us solo and small-firm attorneys, I do not see it as useful whatsoever professionally except as a news filter or for an occasional much-needed laugh.

A read through the tweets from hashtag #sml12 for a current (6/20/2012) social media conference was instructive.  A read through those tweets yielded a lot of bold, axiomatic statements like “if you aren’t on social media, you aren’t relevent/are risking irrelevance” and “the return on investment in social media doesn’t matter, [law] firms not using it will become ‘irrelevant.’ ”  Really?  Why?  Return on investment always matters, especially when the investment is more than de minimis.  What legal client is fascinated by an attorney who tweets the whole day?  A politician, lobbyist or community organizer? Maybe, and a lot of them are attorneys (and some go on to do some really interesting things in their careers….) but what does this have to do with the actual practice of law?  The strange creed- or even cult-like tone in the tweets really haunted me, reminding me of one controversial religious organization with a well-funded legal team which I will not here name.  Maybe Amway would be a better comparison, but without the redeeming value of pretty-good soap, cleaning products and cosmetics.  Go check out the tweets for yourself and see if you agree or disagree with me.

How does tweeting about antitrust law make an antitrust law firm more effective?  What, crowd-sourcing the brief or deposition and putting the litigation strategy all over Twitter and exposing the CEO of your client to federal prison?  How does Twitter help an attorney win – not get, WIN – the multi-vehicle accident case in a jurisdiction with contributory negligence and last clear chance doctrines?  Can Twitter help me get my overtime collective action certified in Greenbelt under FLSA?  No?  Will the “thought leaders” prepare my monthly escrow account report?  What, NO??? Then it’s of secondary importance or lower.

If “social media” is so great for attorneys, there should be some metrics to prove that fact, whether under a return on investment model or another model.  Even though we don’t have metrics for paying my bar dues, we know that not paying my bar dues suspends the law license, so we pay them.  We pay Bar Association dues because the Bar Association provides a great deal of information about actual law practice, from news, CLE, the Maryland Lawyers’ Manual, a place to grab a cup of coffee, etc. I don’t know the stats on malpractice, but profession-wide the risk is non-zero and most institutional referral sources mandate a malpractice dec page as a condition of doing business.  So there is a large “delta” from not buying malpractice insurance.  Twitter?  LinkedIn?  Pinterest?  What would we put on Pinterest or Instagram – a picture of gorgeous old me sealing a Tyvek envelope?

You know what actually keeps an attorney “relevant”?  Being a knowledgeable resource in “meatspace” i.e. offline.  Not a “thought leader” but a mentor.

Relevance – going to meet your mentee at an attorneys’ lunch in Columbia even when it’s 100 degrees out and you have a pile of mail to review.

Relevance – speaking to a room full of your colleagues in Ocean City as a presenter, then the next day getting to discuss your practice area’s developments with a law firm who is opposing your client on a case and a former chief judge of your state’s highest court.

Relevance – taking the call from your mentee who is about to make a serious escrow mistake, and you guide her through to get the funds handled the right way.

Relevance – when you are in command of your practice enough to be able to help an impoverished worker get her unemployment benefits, and write off the bill pro bono publico because the one percent of you that won’t make peace with the 99% atheist part of you remembers once learning, “The righteous is concerned for the rights of the poor; the wicked does not understand such concern.”

Does using social media as an attorney induce or constitute an ethical violation per se?  No – not per se, but per quod it sometimes does.  There are plenty of non-social media advertising violations online and of course offline by attorneys.  About a month ago I sent a friendly email to an attorney who claimed in her Google Adwords ads – appearing on my own personal Gmail account, no less! –  to be specializing in several practice areas in flat violation of Maryland Rule 7.4.  Shortly before that, I faxed a similar letter to a warm acquaintance who, regrettably, had outsourced marketing and therefore (pace Eric Turkewitz) ethics to her online marketing company who likewise claimed she “specialized” in multiple practice areas, in depraved indifference to Maryland’s black-letter rule on the subject.  Neither of these ad copy fit a narrow definition of “social media” as generally conceived.  With social media bogosity the hype factor gets a lot more concentrated and the risks of other ethics violations, such as ethical conflicts, breaches of confidentiality and even privilege, even identifying the actual client (!) become a lot harder to avoid.

In short, social media as a business generation tool for attorneys welds extremely questionable return on investment with multiple layers of ethical and possibly professional liability exposure.  Perhaps those risks can be managed like other risks, but taking on such risks without some metrics for the upside payoff seems foolish, especially when the unsexy work of getting good at a practice area (you know, boring reading, consulting with colleagues, testing and buttressing your knowledge by attending and even giving continuing ed, co-counseling on cases, etc.) remains to be done.  We wouldn’t tell our clients to take a bet this bad.

Lots of cases come up on PACER (federal court case search database) every day.  It makes a bit more sense to spend time, in lieu of social media trolling for “leads” or some goof-bang Generation-Y existential quest for “relevance”, looking instead at PACER (or a local equivalent) and finding interesting cases.  Then, it makes sense to call one of the attorneys in question on that interesting case (on a Tuesday, not a Monday or a Friday) and inquiring – politely and gently – about your interest in the practice area and inviting the attorney for lunch.  There’s a decent chance that you will get a not only the lunch bill paid but also an invite to join the case formally or unofficially as second chair (if otherwise appropriate and with client consent, etc.) or a referral to an ally or partner of hers/his for something similar.

If you don’t do federal court,  replace the PACER docket with your local worker’s comp docket, etc.  What role you might have is going to depend on a lot of details including your experience level but there’s no ethical rule against contacting an attorney about joining on that attorney’s case (assuming no conflicts, etc.)  I have been on both sides of that mentor-mentee case split, as the first and second chair.  Not that complicated if you hit it off and you observe the general ethical principles starting with competence, client consent and conflict checks.  This beats the best tweet you will read or write all day.

If you don’t want to contact an attorney who does litigation or administrative practice, then find out who is giving the local estate planning/tax law/transactional practice CLEs from your Bar Association or seminar companies like NBI, PLI or the other alphabet soups of companies that sell seminars, and contact her for a lunch chat.  These, not consulting services from a “social media professional” if such a creature exists, are more likely to give you actual social contact rather than social media.  The return on investment of such efforts is not guaranteed, but it’s about as good a guarantee as you are going to get in these hard times and beats the hell out of trying to bootstrap professional development 140 characters at a time from your vendors.  Never forget that vendors, like Carlo Rizzi in The Godfather, do NOT get a place in the family business or at the table; they deserve payment on time as agreed but only you have the law practice and license too lose. We do not “duzen” them and they are not our professional peers.

Early in my career as an attorney, I was intimidated about getting to meet other attorneys.  I bought into the misleading  law school hype about big firms being the standard for, well, everything.  I didn’t want to be part of a big firm, but somehow felt like less of an attorney for it and felt very self-conscious at Bar events, etc, because my career hadn’t taken off.  Even attending a meet-and-greet networking event seemed too difficult for me then.  Later I learned that while big firms did have a lot of influence over law schools (they ran on-campus recruiting, named the building wings that they funded, etc.), they didn’t have all the wisdom.  Plenty of highly-rated practitioners who were solos or small-firm attorneys, including a large plurality of Bar leaders in my state.  But inside the “thought leader” bubble of law school, I’d have never learned that fact that remains true largely to this day.

Alas, law school isn’t the last reality-distortion chamber.  Social media merchants, I fear, will stunt many (hopefully fewer) new attorneys’ growth by playing to their insecurities (compounded by an even worse economy than one encountered in the mid-90s), selling them useless buncombe and NOT helping them actually improve their hard and soft skill set – especially if social media acts as a substitute for getting out there and meeting people.  This is particularly true for that subset of attorneys most likely to be attracted to online communications in the first place – my fellow NERDS (please bury me with my 20-sided dice and my decaying D&D goods).  How big a problem this might be with the newer cohorts isn’t clear to me as my sample isn’t representative of the nation as a whole.

Among my mentees, it’s not a major problem but my mentees are local to Maryland and Maryland is a small state with two law schools for a state of nearly 6 million people.  It’s worth noting in a spirit of irritation and bemusement that the local FindLaw rep has been lingering at the Solo and Small Firm monthly lunches I attend in my county’s Bar Association.  He sometimes picks up the tab; he literally now has a seat at the table.  Pity, as it would be nice to talk just with my fellow attorneys monthly instead of with (sigh) a vendor there to make his sale.  No sale here, my friend.

Developing as an attorney is NOT about “doing epic sh*t now” but about earning an honest, ethical living while doing useful things and developing a broadening and deepening skill set – in mostly “non-epic” (i.e. routine but still important) work.  It’s unsexy and in itself has little “style” but methodical, unsexy work can make a big difference in a client’s life.

Here endeth the long rant with an offer and challenge to new Maryland attorneys who are thinking about using a social media consultant, online media consultant or other such consultants.  Before you spend money or sign the billion-year contract, join me for lunch.  It’s lunch on my dime if it’s in Baltimore County or if you are far away we can split the bill near you.  If you have dietary restrictions, we can go where you can eat.  Serious offer, good indefinitely.  Give me an hour over lunch.  Even if you don’t agree with me, you will be the better for it and I will do my best to help you find low-cost, ethical and tasteful options (like finding the right lawyer locally with whom to co-counsel) that don’t involve handing the social media mafia some monthly check.  That way, even if you disagree, you will be stronger, will negotiate with these companies from a position of strength, not of economic intimidation, and should be the better for it.

Offer open to any Maryland attorney, Maryland Bar applicant or law student within Maryland (UM or UB).  If you have a phone, you have a mentor (me or someone better than me that I can try to connect you with.)  Don’t let yourself get separated from your professional community in tough times; stay connected.

“Branding” in the practice of law really burns my wide-load rear end

What are brands? “Brand” comes from a Germanic route meaning “to burn”; the related words “brandy”, “brent” and many modern German words employ this root to describe the act or recipient of burning. In North America and later some other places, cattle were branded (burned, though not too painfully I am told) with glowing-hot iron markers to identify them in the event of the mixing of herds or cattle rustling. Brands were a mark of title and, to a much lesser extent, of quality, since cattle were and are essentially a commodity. While marks on goods predated branding, we use the term “brand” perhaps more often than “mark” in American English to identify goods and to a lesser extent services.

Branding or marking serves a useful purpose in commerce: to identify a series or multiple series of goods by a manufacturer with that manufacturer, to identify services with a given provider, and from the manufacturer’s or provider’s viewpoint to convey common positive qualities among those goods or services. For goods, the mark may continue to advertise the company’s identity not only at the point of sale but during its use, such as the Heinz ketchup bottle on the picnic table at the family reunion barbecue or the can of Natty Boh visible from halfway across the bar in Baltimore. While branding services may be more challenging, we know some service brands very well: the brown shield of UPS all over the company’s uniforms, packaging and fleet vehicles.

For some goods and services, their need or use may embarrass the consumer if known to others. It is merciful and proper that most prescription medicines are usually sold in uniform, brand-less containers. Although Preparation H has (presumed) value to its buyer, has a mark and distinctive packaging, one rarely finds contests with the mark prominently displayed where winners can get a lifetime supply and their names and pictures proudly displayed on the cover of Preparation H magazine. Alcoholics Anonymous has some service marks and trade marks for its publications and activities, but its anonymity and policies make anything but the most perfunctory, utilitarian and limited references to its very existence inappropriate to its stated purposes.

Ultimately, is the practice of law something more like Alcoholics Anonymous, or more like the companies who plaster their trade and service marks all over a racing car at the Indianapolis 500? Is one’s identity as a solo attorney something ideally staid and reliable, such as that of a classical perception of an traditional rabbi or priest, or is it more like an XBOX 360 or Budweiser or, perhaps less aggressively, like UPS or FedEx?

The first purpose of branding – to establish the sourcing of goods or services – is barely needed if at all in the practice of law. Most documents written by lawyers have the lawyers’ letterhead or lawyers’ signatures included or attached either by law (pleadings, deeds in some states including Maryland) or by practice. Usually the envelope in which the work product is delivered has a watermark, label or return address from the lawyer or law firm on it. Most importantly, clients know who their lawyer is, whom they hired to do what negotiation, drafting or litigation work on a given case. It’s not like a can of soup without a label, in which instance finding out what’s in the can is not possible without opening the can and finding out who made the soup is probably impossible even after opening. Since legal services are usually confidential, the universe of people who need or want or have the right to know whom some person retained for a given legal matter is either tiny or non-existent and when there is such a right, there’s a lawyer’s signature, letterhead or card nearby on the handiwork.

The second reason to brand goods is not merely to identify but to induce and maintain loyalty or to dislodge the loyalty of a competitor. If Domino’s Pizza and Papa John’s go to war in a given market, each will use their brand, their marks, to identify themselves not only regarding a given boxed extra-large veggie pizza but to assert and win brand superiority and to maintain customer loyalty. Brands are descriptive but also proscriptive tools; they mark, enhance and move forward against resistence the battle lines between competing market players. For pizza and soup cans and detergent, this is fine and good.

As attorneys we are under many regulatory constraints that keep us from acting like Coke and Pepsi. We mostly cannot discuss our clients’ business in public or otherwise with outsiders (although some damn fools try, such as every lawyer whom George Zimmerman has hired to date.) We cannot compare our services to those of other attorneys unless those claims can be factually substantiated; since we cannot usually discuss our clients’ business outside the firm, it’s hard to make an ethically permitted comparison. We cannot solicit or otherwise speak to a represented party and we cannot solicit in person; this makes grocery store-style “Pepsi challenges” to loyal “Coke” clients impossible as clearly prohibited under ethics rules. We cannot call ourselves “specialists” or, in many jurisdictions including Maryland “experts” without a serious risk of a violation or a guarantee of one. Brand identity isn’t very useful in this context; I would argue that it’s absolutely useless.

Some attorneys have commented online about the need for an “identity.” I don’t know precisely what they mean. It could be that they literally don’t know who they are; this is known as amnesia. It could be that they don’t know what their identity means or should mean professionally; this is a crisis of meaning or existential crisis. It could be that they don’t know what their perceived identity is or should be; this is a descriptive or proscriptive marketing issue.

It’s clearly not amnesia as this is real life, not a soap opera whose writers hit a dead end. It may well be an existential crisis, such that these often young attorneys are humming along unironically to Eminem’s lyrics “And I am, whatever you say I am” but missing the point of that piece of hip-hop. The practice of law is no place to resolve an existential crisis; that belongs to more personal realms of philosophy or religion or whatever. But like young people who glom on to religious movements as an imperfect puzzle piece curved and jammed into the identity “hole”, some of these low-identity attorneys may be looking to fake it until they make it – until they cannot see or feel the hole any more.

Other attorneys might indulge the maluse of “identity” and “branding” perhaps not so much to sell themselves but as a sales tool to the clients. In this pursuit ethical violations petty and hard-core may ensue, though the likelier result is mere time-wasting. Clients aren’t looking for the brand; they are looking to pursue or achieve dreams, slay or reduce nightmares, protect their property or cash flow or freedom or good name or privacy, continue their legacy, find peace, inflict horrible misery on their enemies, etc.

The “brand” or “identity” is even more of a BS layer for lawyers than it is for pizza – ironic, as we owe a stronger duty of care and candor to clients than Pizza Boli’s does to me when I indulge, to my detriment, the occasional purchase of a pizza with pineapple and hot peppers. At least the Pizza Boli’s sign and box help customers find pizza; then again, almost all non-vegan Americans eat pizza occasionally and it’s a fun, impulse purchase with no lasting bad effects (if it’s occasional or if you are Michael Phelps training for a meet.) Plus, Pizza Boli’s is a chain; consistency in the product from store to store is confirmed by common ingredients, recipes, equipment, etc. There’s only one you or I as solo attorneys; we don’t need to confirm any multiple-office common standards like a pizza chain.

Your identity as an attorney was issued to you by your mother or other relatives at or near birth or otherwise per lawful name change or name registration upon entering the Bar. My identity is T[heodore] Bruce Godfrey, attorney; if I forget that, call the doctor (and if I keep forgetting it, call Bar Counsel.) In most jurisdictions, law firms may not practice under a law firm name other than that composed of one or more attorney names without special clearance. You have no need for an identity; you have it.

What you need is a reputation, but the only ways to earn that are through consistent competence or, ideally, excellence in one or more practice areas and through solid performance on aspects of law practice other than mere competence, such as efficient return of phone calls, diligence, respect for the value of clients’ money (this is NOT to suggest low-balling your fees, but to bill intelligently and consistently with the Golden Rule.) You know – actually doing your job well, as you would expect of a mechanic or a plumber or an electrician. This isn’t to say that you shouldn’t aim to get really good at a practice area quickly; indeed that’s commendable, it’s where you should be aiming your efforts Without solid mentors and peer-apprentices of similar mindset and habits, however, you are unlikely to have a solid basis to judge your skills or to know when you are out of oxygen.

In due course, through persistent skill development, you can become competent and indeed excellent in a given area of practice. Not “competent”, but competent: you know it well enough to do it well and efficiently. Above competence is the ability to teach others, or to correct others’ errata or to engage in well-grounded debate in the gray areas of your practice area. (Part of competence is knowing when something is not knowable but mostly or entirely a matter of judgment calls or opinion.)

I am not Jewish or otherwise religious but I am informed that in the tradition of Torah study in traditional Judaism, it is customary not only to have mentors but also consistent Torah study partners to bring out the best from the student.  In law school we do not do so in the same way, though in fairness the purpose of law school is quite different from the purposes of religious study.  In the practice of law, though, we probably need “study partners” – good ones – more than in law school itself.  The economic demands of practice and ethical restraints on confidentiality make getting a “study partner” in a law practice tricky, but doable.  At a minimum, list-servs from Bar associations can help.

“Branding” simply isn’t part of the business of developing your craft and repute as a solo attorney.  Florida criminal defense and ethics attorney Brian Tannebaum got it dead right over at Above the Law.  Believe no social media hype or existential pangs suggesting the contrary.  Far better to spend the day in study over the unsexy, uncool Rules of Procedure.

Advice to Young Lawyers: Do NOT Let Some Vendor Own Your Identity

It’s bad enough that we attorneys have to use vendors to supply our needs like everyone else in business. Good business judgment encourages economization and a careful eye on the effective rate of return from expenditures, including supplies, utilities, equipment, fixtures, inventory (not that that’s much of an issue in 99% of law offices) and services including marketing. To this extent, the practice of law is a bona fide business.

The real problem, however, with allowing vendors to get leverage over your marketing presence goes beyond mere costs. We as attorneys cannot afford to surrender the professional independence of our judgment on how to practice.

I have seen attorney after attorney fail to think three steps ahead. It’s a serious mistake to allow some internet marketing company (disclosure: I use a couple of the least obnoxious ones for limited purposes) to control your identity online. It’s a serious mistake to allow some landlord to own your outward-facing phone line.

If you want to get a phone number, go to voicenation.com and get a forwarding number for $10.00 a month. Don’t let the office suite, internet marketing hack or any such materially interested vendor get control of your phone. Forward that phone to a phone that has no identity or whose number you unambiguously control (cell phone, whatever.) It’s fine if the office suite or landlord will provide you a desk phone number – great. But you are not only a fool but a damn fool if you allow them to own your outward facing number.

Similarly, if you want to have an online presence, go buy the domain name(s) that you want and maybe even buy hosting before you talk with any of the internet marketing mafia. I use ICDSoft.com; they have been down, to my knowledge, for a total of 24 hours in the last 7 years. Don’t let the internet marketing mafia get away with murder by offering to “let you have” 15 pages on your site and charge you hundreds of dollars per month in rent for additional pages. A page is a one-shot draft job in most cases; charging you monthly rent on your site is like charging your client $75.00/month for the rest of his life on a divorce decree, on the grounds that it’s still in the courthouse, still effective and the client is still divorced. 115 pages costs minimally more than 15 pages.

Consider doing your website yourself. While that’s a big task (I know, I installed and designed every wart and scar on this site), it’s not fundamentally different from typing your own letters which most attorneys do from time to time and some always do. My hosting with ICDSoft costs $6.50/month for more bandwidth and storage than I can use. Ask yourself whether years of commission are morally fair to the sales reps for the high-priced monthly charges for the web pages that took minimal effort to augment. Even if you do use the web design services more extensively, ask yourself whether it is reasonable to allow an outside non-attorney corporation to own your professional image – not just to service it for fee like an honest for-profit plumber, but to hand them “Fee Simple Absolute” in exchange for their sales hack claims of effectiveness.

Nobody owns Bruce Godfrey, and only Bruce Godfrey owns www.brucegodfrey.com. I use lawyers.com and avvo.com as flat-footed advertising media, but note well that I am absolutely happy to tell both of those companies to take their services elsewhere on a moment’s notice. They don’t get the chance to have a “seat at the table”, to quote the severely unfortunate phrase of the “Legal Marketing Association” because it’s not their goddamn table. Seven women and men in red robes didn’t issue Lexis Nexis or Avvo’s Mark Britton a Maryland law license; these corporations are plumbers, not roommates or family.

You know what’s better than the coolest blog post or social media gimmickry? Doing something actually useful and (to the extent permitted by ethical strictures) discussing its real-life usefulness online (paraphrasing Hugh MacLeod of the Gaping Void). Knowledge and deeds – those no vendor can revoke if you stop paying their Danegeld.

How to tell a legal marketing company to drop dead

“Br-r-r-r-r-inggg”

[Gee, hope that’s H_____ D______ calling me re: my piece of the S_____________ settlement.] “Good morning, this is Bruce Godfrey; may I help you?”

“Hi, may I speak to the owner of the Law Office of Bruce Godfrey?”

[Christ, one of these.] “Yes, I am Bruce Godfrey; this is my law office. May I help you, sir?”

“Yes, I am Jake and I am calling from Lexorrhea, the legal marketing solution for the social media age. And who might you be?”

“My name is Godfrey and you may call me “sir”. What is the purpose of this call to my law practice?”

“Oh, well, good morning, Bruce? Bruce. I am calling to make sure you know about how Lexorrhea’s slots for Baltimore City are filling up. You are in Baltimore City, right?”

“Jake, let me ask you – you are not from Maryland, are you?”

“Our company is a national company using legal marketing experts to help you with your practice.”

“Let me try this again, Jake – do you live at Lexorrhea’s headquarters, or do you leave at the end of the day and go home to an apartment or home somewhere?”

“I live in Austin.”

“I see. I have never been to Texas, and probably will die having never visited. Have you spent at least 30 days of your life in Maryland?”

“Ahem, no, though I once went to a football game at Camden Yards.”

“Nice. Ok, my office is in Baltimore County, 15 miles from downtown Baltimore.”

“And that’s great that you are in Baltimore. We would be happy to help you become the top attorney in your field in Baltimore City, so you should act quickly before the slots fill up for our social media marketing plan.”

“In which fields do I practice, Jake.”

“Why don’t you tell me, Bruce?”

“Jake, you should have researched who I was and what the geography of the state is before you picked up the phone. Baltimore City and Baltimore County are distinct, and somewhat mutually indifferent, jurisdictions. I don’t live in the city.”

“Well, maybe you can market also for Annapolis and Anne, A-run-dale?”

“Anne Arundel, Texan. And no, if you are in Owings Mills, you probably won’t get a lot of traffic for Annapolis litigation as they are about an hour apart.”

“Oh, I see. Well how about the Prince George area?”

“That’s Prince George’s County with an apostrophe. Tip for you Jake: don’t call it ‘P.G.’ and don’t mess up the name, lot of local pride. And again, that’s 45-50 miles from my office.”

“Well, that’s not that far.”

“You aren’t in Texas, Jake”

“Well, Bruce, I am.”

“No, you are calling me, and this call is happening here, not at your desk. Do you know this state at all?”

“Well, we have had a lot of success with our Maryland area attorneys. We have attorneys in Rockville, Salisbury, Boa-ie-”

“That’s Bowie, rhymes with Huey and Louie.”

“Ok, well, we help our attorneys by making sure your clients know what you specialize in.”

“Jake, no attorney in this state can ethically claim to be “specialist” or to “specialize” in anything; this is Maryland. Haven’t you taken the trouble to read the Maryland advertising ethics rules under Rule 7 before you picked up the phone? You are an internet marketing company, surely you could spend 5 minutes Google-ing them?”

“Well, that’s not that big a deal, is it?”

“Jake, an attorney named Turkewitz in another state once said that outsourcing marketing is outsourcing ethics. Not only do you bastards not know your market, you don’t know the regulatory environment. When did you go to law school?”

“Well, I took a business law course at Austin Community College, got an A- in it.”

“Goodbye Jake – nothing personal but I hope both you and your company go out of business tomorrow. Never call me again. Really.”

[Click]

[20 minutes later] – “Hey, D – it’s Godfrey. How’s it going with my piece of the S______________ settlement? BTW – stay away from Lexorrhea.com…..”

Online Legal Marketers: Please Go Find Honest Work Instead

I have changed the outgoing message on my office switchboard voicemail to tell online social media marketing companies aiming at attorneys (or others, but especially at us lawyers) to change careers and explore honest work as an alternative.  The number of loud-mouthed Glengarry-wannabes calling and leaving messages to the effect that “we have a few new slots left to guarantee you placement on the first page of Google” or “we will manage your online reputation for you/manage your website/Tweet for you”, etc., has grown to the point where they need to receive some commercial hate speech.  So I recorded some.  Hope it stings.

As attorney Eric Turkewitz stated it far before I did and far more succinctly than I could have, “outsourcing marketing = outsourcing ethics.”  If you are a online legal marketing “expert”, please consider this as First Amendment-protected speech inviting you to change careers.  I have seen the damage that these clowns can do in other Maryland attorneys’ practices, and am skeptical of the entire lot of them based on their demonstrated failure to understand the basics of attorney advertising regulations.  While we attorneys are ultimately responsible for anything our hired hacks do, whether they are attorney hacks or non-attorney hacks, the attorney hacks at least got a passing grade in Professional Responsibility and on the Bar exam.

The marketing goofballs, who apparently now have the nerve to demand a “seat at the table“, are just a train wreck, and their sales reps sound like the sleaziest bunch of 25-year-old creeps out there in their voicemail messages.  No, legal marketing kids, you cannot be sued, sanctioned or grieved for your errors but we attorneys certainly can be sued, sanctioned or grieved for your feckless scammery; you are not the grown-ups in this household and you do not sit at the attorney grown-ups’ table.  To quote the philosophical school of Sha Na Na, “Get a job.”

Really, folks, quit calling my office.  Better yet, quit your jobs and learn a clean trade.

How to Hire An Attorney for Your Young Adult Son or Daughter

As a criminal defense attorney, I get many calls from parents of young adults seeking legal counsel.  Often this occurs when the young adult gets charged with some minor offense at college or semi-“away from home.”

Here are some things that you need to know.

1.  While what you say to the attorney you are looking to hire is generally confidential, it is usually not “privileged.”  “Confidential” means that the attorney has a ETHICAL DUTY not to reveal the material voluntarily, but may under limited circumstances be forced to do so under subpoena, etc.  “Privileged’ means that the holder of the privilege – generally, the client – has the POWER to prevent the release of the privileged communication, documents, etc.  Confidentiality is a duty; privilege is a power.

2.  The foregoing differences between confidentiality and privilege means that your son’s or daughter’s prospective attorney may well not want to hear certain information from you, and may wish to exclude you from the room when speaking to your adult child.  In addition, your attorney may direct your child not to talk to you and request of you not to communicate with your child regarding the subject matter of the case.    Communications between parent and child are in most cases not privileged and in Maryland enjoy no statutory privilege.

3.  EVEN IF YOU ARE PAYING FOR THE ATTORNEY, you may be excluded from the client-attorney communications due to risk of a privileged communication losing its privilege.

4.  Some exceptions to the foregoing may apply if your participation is necessary to assist a disabled adult under guardianship or, possibly, to assist your adult client with communications issues such as in the case of a deaf citizen client.  If your adult child is under a legal disability, has a cognitive impairment or a communications disability, this is a fact that you should communicate early to any prospective attorney so that appropriate steps may be taken to preserve privilege, particularly in a criminal case. On the other hand, it is reasonable in many cases to communicate some information in some cases to a parent or legal guardian under rules 1.4 and 1.6.

5.  If you are funding the case, any unearned fees may actually belong to your young adult client at the end of the case unless all involved agree to another arrangement.   While this ordinarily should not be a problem practically, it’s worth putting into writing not only that unused funds get returned (which is the law and the ethically required result) but precisely to whom they get returned.

6.  It is not uncommon for parents and young adult clients to have different attitudes about a case. This is natural and human.  In the end, however, your adult son or daughter calls the shots subject to attorney advice unless she or he is under a disability and you are the guardian.  Even if you disagree with the attorney – and perhaps you may be right – the attorney-client relationship is just that – between attorney and client. Special rules may apply when an attorney’s client and a minor client’s parent/legal guardian disagree on how to handle a case but in the end, the attorney owes a fiduciary duty to the client, not to the client’s guardian, but may be obliged to obey the minor client’s explicit instructions even if the attorney judges them to be unwise or contrary to the attorney’s fiduciary judgment. Even communicating at all about the case with a parent or legal guardian may be limited under ethics rules 1.4 and 1.6. For such situations ethics hotlines may be of service to the attorney.

7. Many times, young adult clients lack the good judgment to accept an attorney’s advice. (Indeed, in some situations, it was youthful foolishness that necessitated the retention of the attorney in the first place.) One of the experiences that your young adult child may experience in dealing with an attorney is the first no-nonsense encounter with real adult life; this is particularly true if your child is in college, which in the United States is largely distinct from real life in its economics, accountability and mores. (example: if you are accused of cheating in college, you usually get some sort of student due process hearing administered by a class president wannabe; if you are accused of cheating the register at McDonald’s as an employee, you get fired and maybe you get prosecuted.) Attorneys sometimes have to deliver the sort of “real world hard news” to a young adult that no one has previously delivered before to her or him, particularly in criminal cases; this is part of the legal representation.

8. Depending on the case, you may be able to be a great resource to your adult or minor child, but you should expect that your attorney will take the case on in much the same way that a doctor will provide your child medical care: you can be supportive and should be if you can, but in the end your adult child is receiving the benefit of the legal advice, strategy and tactics in the case and it will be the client’s position and direction on which the attorney will most focus.

“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.