Mentoring Program of the Maryland Professionalism Center

photoI am pleased to report a successful year in the Mentoring Program through the Maryland Professionalism Center, Inc., a non-profit organization that works in close coordination with the Maryland Court of Appeals, particularly with the Hon. Lynne Battaglia of Maryland’s highest court. My mentee this year was a young aspiring family law attorney whose prior mentor through the program failed to follow through. Despite a major medical upheaval on my end mid-year and logistical issues, my mentee and I successfully completed the entirety of the program in a timely manner.

The mentoring program requires six meetings between mentor and mentee on topics ranging from, among others, unwritten “customs” about postponement requests, major malpractice and ethics pitfalls, conflicts of interest, time management, legal writing style, ethical and effective client development strategies and, perhaps most importantly, how to select suitable cases (my translation: how to reject flaky, meritless and inefficient cases.)

I encourage any experienced Maryland attorney who has the time and inclination to join the Mentoring Program; it is a great way to discharge part of the hortatory pro bono publico duty.

UPDATE 4 Feb 2014: I thank Ms. Monise Brown, Executive Director of the Maryland Professionalism Center, Inc., for alerting me to potentially misleading language in the title of this post, since corrected.  While the Maryland Professional Center, Inc., serves the interests of the Bar of Maryland in the sense of the collectivity of Maryland attorneys licensed under the supervision of the Court of Appeals, it and its Mentoring Program are not part of the Maryland State Bar Association, Inc. (MSBA), Maryland’s voluntary bar association to which about 1/2 of Maryland attorneys belong (myself included.)  The MSBA may have meritorious mentoring programs of its own.

New lawyer smell

I have gotten 8 good years out of the new car my children’s mother and I bought in January 2005 and, the occasional cashectomy for tires and rotors aside, it runs very well with 151K miles on it.  Commuting to DC for a while put some mileage on the car and with an active practice, I put substantial mileage on the car to this day.  It works well; next car will probably be a Corolla as well and I’d buy from the same dealer that sold me this one.

This car has no new car smell; right now, it probably smells very vaguely of coffee and of the cherry-scented cardboard doohickey that AutoZone sold me when I bought wiper fluid.

New car smell is part of what sells cars; the manufacturers could take an effort to get rid of that vaguely comforting smell of cleaners, solvents, plastics and so-called “Corinthian leather” and make it smell like Bill Bateman’s Thai Chili chicken wings, but that’s part of the sale.  We want the car to smell like the right batch of leather tannery chemicals and plastic, or so it appears and so Detroit believes.

New lawyer smell is another matter.

There are many better sources than this blog about the mis- and mal-education of attorneys in the United States.  Lawyers spend three years to become law school grads, primarily so that they can sit for a bar exam that will cover only a fairly small fraction of the 6+ semesters of study that stand between matriculation and clearing the Bar exam. When I was in law school I did enjoy some of side material, but the A- I got in my course on “Women and the Law” did nothing to help a single client over the last 18 years; Professor Auerbach’s far less fabulous but more practical Civ Pro I and II and Abraham Dash’s courses on Crim Pro and Professional Responsibility.  Some of what is taught in law school can and should be brought down into the undergraduate programs; if juniors in college can study nuclear physics they can study a lot of what it is in law school (and in e,g, Germany, they do study law at the undergraduate level.)

The real issue is the conversion of the law school grad into a licensed attorney who will first do no harm, and then perhaps do something good.  Law schools don’t care about what their grads do; they care about gathering statistics (in whatever misleading form) to promote themselves.  They care what US News says about them.  They don’t care about producing competent lawyers.  My own law school has asked me for money, and did send me a card a year after I graduated to self-report my earnings for their statistical presentations to future marks, er, applicants (which card I recycled.)  It doesn’t care whether I am (or any other grad is) a competent, ethical attorney now, let alone whether I was the day after I was sworn in in December 1994.   Law schools do want their alums to have money and the inclination to donate it to their Law School Dean’s Nephew Wrecked His Benz fund.  Bar Counsel cares; the MSBA and local Bars might care minimally; my clients presumably care if they have occasion to think about it, and other members of the Bar – friends, colleagues and indeed counterparty counsel – care whether I am (i.e. we are) competent and ethical.  But they aren’t really around in the era of “New Lawyer Smell” (OK Bar Counsel certainly is – more on this in a minute.)

The recent update from the Bar’s stalwarts in the City of Brotherly Love about Joseph Rakofsky’s epic antics led me to think a bit about law school as a system.  The manifest function of law school is to produce a product with a particular kind of “new lawyer smell” – like a car, only with the smell enticing no one but the new lawyer herself or himself.  I don’t think there’s a working lawyer of 15 years who does not, in her heart, look back to the first year in practice and recoil in horror from her early errors of law, of fact, of procedure, of “how things get done.”

Part of the problem is that law school sets us up and we let ourselves get set up.  Like a car buyer, once we buy we have a psychological investment in being a buyer, in wanting our “buy” to be objectively good.  We want to believe that all those damned late nights, those exams, those ridiculous law school games with tenured professors unacquainted with the actual practice of law with real money on the table, that degree and finally, that bar exam score above the arbitrary cutoff line validate us and validate our investment.  We figure, dammit, the GOVERNMENT has said we are competent when it issued us the law license, so competent we must be, right?  All that money, all those classes, all those IRAC games on the exams, two (three?) days of Bar exam, a character committee interview and 80-page application where we had to remember which dorm address we lived in with Hank and Jamal or Jenny and Tabitha – of course we are ready!  We can read the rules and the cases; we know what we are doing!

Wrong.  We have lived so long in the barn, we no longer smell the manure.

Nobody is more dangerous in a law office than a first year lawyer.

Fortunately, like injury or disease that announces itself through the blessing (?) of pain, new lawyers smell of the law school barnyard where they have played for years.  By their whiff ye shall know them.

New lawyers use words like “burden of production” and “burden of persuasion.”  They carefully explain Miranda to District Court judges because, despite being drawn largely from the criminal prosecution and public defender bars, these judges need a fresher from a newbie.  They say things like “I’d like to get into defamation law as a solo” not knowing that the successful defamation law suit is rarer practically than a valid check from a Nigerian aristocrat’s inheritance fund.  They act like the stupidest of no-wisdom clients who read a summary of one case or think about something that their cousin – an insurance broker 5 states away – said at the Christmas dinner or over the Seder and use that as a basis for making a life- or career-altering legal choice.  They don’t fear; neither do the deer staring at night into the headlights of the SUVs that kill them.

They do things like get arrogant at prosecutors who insult them, as I did in a domestic violence case in 1997.  In my arrogance and irritation at a prosecutor who was acting obnoxiously but within the normal range of prosecutorial obnoxious, I allowed my rhetoric on behalf of my client to run wild, leading a judge to conclude that I was actually claiming that the target of the alleged violence, a pregnant woman, “had it coming” (not my words.)  The judge actually continued the disposition to a new date because the judge had doubts, essentially, about the Court’s ability to be fair to my client in light of my incendiary rhetoric.   Religious liturgical Christians can go to confession but there’s no “confessional” for lawyers who commit that kind of professional “hamartia.”

Part of what makes new lawyers smell is that they don’t have professional introspection.  They cannot look at themselves, even sideways, to determine when their instincts are off, when their emotional stress level is exacting a toll on their judgment and perceptual faculties.  In my own case in ’97,  it took place very soon after my and my parents’ home burned essentially to the ground.  At a minimum, I should have had the insight to say “gee, you have no home and most of your stuff is just gone; your phone just melted.  Maybe you need to step back and assess whether you are able to exercise sound professional judgment in your work in light of the severe stress and, if you have doubts, call a mentor.”  Clinical social workers and counselors sometimes use “outside counseling” – a term of art for independent review of the social worker’s own counseling work by a senior social workers/psychologist, etc.  We need it less as we grow in experience but when we are new, we figure that the definition of professionalism is never needing it, rather than getting promptly what our duties mandate that we have and get.

Old lawyers view new cases with mild trepidation.  Not with fear – outright fear makes you stupid and probably not competent.  But with hesitation.  Old lawyers talk about deadlines and deposition transcript costs.  We recall the cautionary tales of acquaintances and classmates who had law licenses and lost them through their own aggressive stupidity.  We recall how hard collecting a judgment can actually be.  We know that the elements of a “good case” aren’t “duty breach causation and damages” but more like “breach, some outrageous facts that give the case lift, controlling legal authority in THIS JURISDICTION and a very large pocket.” We know that law school didn’t prepare us, just as it didn’t prepare our predecessor/mentors or successors/mentees.  We don’t live in the barnyard; we can smell what manure smells like now.  We don’t talk like law students, and generally find them irritating.

Old lawyers know that career services office do little that could not be done by Google apps more efficiently.  You want the latest bulletins from the “Human Rights Council unpaid internship in Ticktock, Oregon”? Google it; no need to press the elevator button for the career services office.  They do conduct/supervise certain on-campus interviews, but the dedication of an entire office with staff for that function has more to do with ABA certification than with the actual desires of the employers.   More useful than career services is actual facetime with actual attorneys in firms big or small; this requires that the law student attempt to mitigate his law school barnyard smell and that the attorney take it upon herself to forbear what the student cannot mask.  Ditto the new attorney.

Old lawyers care what judges and prominent practitioners think, not what some tenured professor per se thinks (unless those happily are the same).  Some professors have a lot to offer; some are useless to law students who want to become actual lawyers rather than academic spouters on the students’ (and, often, taxpayers’) dimes.  If the ABA wants to help, it should require that all (or 95% of) faculty in its accredited schools be licensed to practice law where they teach and that every law professor have practiced law as that term is defined by that state’s laws for at least 2 years.  The current model of tenured article writers as the dukes and actual practitioners in the Bar as the adjunct peasants needs to end; that change alone would rid the barnyard of some of its smell.

Having been harsh on new lawyers, I will note that I have been an informal mentor to about 5-6 lawyers this past year and being a mentor has been most enjoyable.  The young lawyers I have mentored have either exhibited wise caution or been open to cautious advice; all have taken their ethical obligations seriously, and recognize that practicing law is no law school joke.  Don’t take it too personally, folks.

“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.

Advice to Young/New Maryland Lawyers

The following is advice, given at no charge, to Maryland attorneys whose law licenses are young and perhaps with greater emphasis to new lawyers whose bodies are young.  Much of the advice may apply to lawyers generally, but I am not comfortable giving advice to lawyers in Kansas or Utah or Florida; indeed, I am not 100% sure that those places actually exist.  Florida, in particular, may not really exist; it may just be a fiction created by the National Enquirer, which claims to be based in a placed called “Lantana, Florida.”  I know a 30-year friend who claims to serve on the Florida Board of Bar Examiners there, however, so I suspect that Florida both exists and has lawyers, since he’s not the sort to fool around about that sort of thing.

So here it goes.  Some of it will seem repetitive, but this is free advice, not an appellate brief.

1)  The circumstances for new attorneys are arguably both the worst and the best that they have ever been.  On the downside, the economy stinks, the economy for attorneys really stinks and U.S. lawyers are competing with Anglophone, common-law trained attorneys in India and elsewhere for certain types of work.  On the upside, the barriers to entry to the solo practice of law are probably lower than ever in terms of capital outlay, access to legal resources online and networking opportunities both online and in real life and for attorneys seeking jobs, the Internet helps a great deal in terms of locating some jobs.  There has probably never been a time when some aspects of life for new lawyers weren’t great and others conversely terrible.  Do not focus on “the economy” or “the way things are” with any attitude other than to conquer it in a manner consistent with good business sense, fair play and strict compliance with professional standards (i.e. ethics plus the decency and wisdom that cannot be codified easily.)  Do not focus on “the world” or “the market” or “the economy”; focus on self-development and ethical compliance.

2)  Get over the idea of attorneys as attorneys being up on some pedestal as soon as you can, preferably by the 2nd week of your first year in law school but in any event at the earliest possible date.  From my 160-odd law school class at Maryland, at least three attorneys have been disbarred or indefinitely suspended, two of whom are attorneys whom I regarded as substantially smarter than myself.  Yet I am an attorney and they are former attorneys; go figure.  Instead, focus on professional values, standards, ethics, skills, knowledge and good judgment, and go where you find those in the profession.  Some of the people who may intimidate you now will have no law licenses or damaged law licenses in 10 years, either because they will leave the profession, die, get suspended  or get disbarred.  I interviewed early on with a bankruptcy attorney with a big mural of himself in his office showing himself as the “liberator” of his clients from debt or the like; I didn’t get the job.  Then I found out he got suspended from the practice of law while I had a healthy federal court law license; go figure.  No pedestals, just values, knowledge and skills.

3)  Odds are, you will have at least one bad boss in your career.  Accept this fact.  Good bosses will aim to develop, or cause the development of, your skills and judgment for their betterment, yours and most of all the clients’ benefit.  Bad bosses will waste time, money and opportunities – yours and theirs – for their own dysfunctional reasons.  If your boss is not helping you increase your money, your skills, your confidence and your effectiveness, or worse is actively corroding or destroying the same, I suggest giving 120 days notice today and/or searching for a new job with vigor.  Many more-or-less decent lawyers make lousy managers or, worse, lousy people for your continued development.  Life is short; don’t waste time in negative environments that don’t promote professional development.

4)  “Do not separate yourself from the community” – attributed to Hillel the Sage.  Even if – especially if – the legal community seems alien or intimidating to you as a new lawyer, do not let yourself separate from the community.  I suggest setting aside 2% of your net spendable income per month for connecting with other lawyers (peers and elders) over coffee, lunch, etc…  Do not permit the fact that your career isn’t doing everything you want it to do for you to lead you to avoid other lawyers; that’s when you need to redouble your efforts.  If you are looking for a job, be blunt (polite, but blunt) about your desire to find and get started with the next good opportunity.  If you want cases, inquire as to who is overflowing with work or who is known to be working a 3-week trial, or whose associate just went out on leave or quit.  Ask, ask, ask other lawyers (once you know them well enough and vice versa) whether you have their permission to email them a request for good advice once every 60 days; very few will say “no” and those who do you don’t want anyway.  Join every email list-serv you can with other lawyers.  Do not get disconnected from the community.

5)  Guard both your character (i.e. your honesty, integrity and ethics) and your reputation for honesty, integrity and ethics with great vigilance.  There will be many a time in your career where you will be trusted with something fairly large mostly or completely on the basis of your being an attorney in good standing and of sound ethics and repute.  People will accept your escrow or even personal check as good money because they know you are a lawyer and lawyers don’t bounce checks.  Conversely, judges will remember whose representations in court match up with reality and whose do not.  Opposing counsel will remember, and spread the news, when they get double-crossed through a deception.  Do not trust the integrity of your clients; instead, when you don’t know (not believe, KNOW) something is true, state that client ______________ informs you of X.  Above all – above ALL – do not even think about doing any act with escrow money or other client funds (which almost always need to be escrow money unless waived validly with informed consent) that is not absolutely protected by state bar rules; such mishandling of other peoples’ money is the express train to disbarment.

6)  You are not a salesman, but a fiduciary.  You are more like a bank than like a used car salesman; the latter is a legitimate way to make a living but if you hold and use a law license, that isn’t the business you have chosen.  You do need to have good business sense to maintain your job or your practice, and if the IRS says a law practice is a business, it’s a business since the IRS more or less runs this country.  But the practice of law is only partially a business; it is also an exceptionally great public trust.  There are lots of marketing professionals or coaches online or elsewhere who may suggest business models to you that are perfectly fine for commercial businesses, but radically destructive to you.  If you need a few minutes to get sober on this point, go to the website of the Attorney Grievance Commission of Maryland and read the examples of attorneys who received discipline in Maryland.

7)  The practice of law is in the practice, i.e. the doing.  You are, in the end, what you can and are willing to do, which requires first knowing what to do.  The issues of “experience” and “expertise” for a young attorney are tricky.  On the one hand, you need to get the experience and expertise (words derived from the same Latin root) to get the work and should immediately be attempting to develop that expertise.  On the other hand, you cannot get most of the experience and expertise without already having it, nor may you deceive clients or potential clients regarding your experience.  The best solution may be to request and obtain clients’ permission to share the work and share the fee with experienced attorneys, though many attorneys may be willing to serve as a sounding board without a fee split in some cases.  The fact that you may not have much experience does not relieve you of the moral and professional duty to amass the experience and knowledge that you can amass, consistently with honesty and due diligence.  Mentors are particularly helpful on this point.  Another choice is to focus on low-risk endeavors at first, so that if there’s a failure you simply need to redo the work at minimal cost or risk (e.g. a name change that “fails” just needs a refiling, etc.)  Get your mentors on your side to help you develop expertise more rapidly, and to borrow the expertise that you don’t possess.

8)  Forget that career services at your law school or their marketing hacks ever existed.  They lied to you?  Sure they did.  Of course they did, and will do so in the future.  They will spend substantial amounts of students’ tuition to lie to them, to you and the general public in advertising and mailings.  Quit being angry about those ridiculous liars, who may or may not get theirs for commercial fraud in current class-action law suits, and focus on building your own future.  They lied to you, and others will lie to you in the future; it’s just a fact.  Instead, think about your clients and your future, not the hired hacks on your law school’s payroll.

9)  Mentors – you probably need 5-10 for each area of practice that you have.  Does that sound like a lot?  It shouldn’t.   If you do for example criminal defense, you should have half a dozen lawyers with at least 5, arguably 10, years of experience ahead of you whom you can call or email.  It doesn’t mean that you have to have day-long sessions with each one; just an email or a 4-minute call can sometimes help you a lot.  I am willing to be a mentor to any Maryland licensee who does unemployment appeals for workers, traffic court or misdemeanor criminal court.  Often with my mentees, just an email suffices.  I have been practicing 17 years, and I am fortunate to have mentors and sages to consult on some topics even today just as I serve as a mentor to others.

10) Free help – there is a lot of free help out there.  The Maryland Volunteer Lawyers Service pairs attorneys who want to learn with good instructional programs, a first pro bono client or two and a mentor (and malpractice insurance.)  If you look at the pro bono client as a burden, it’s a fail; if you look at the client as a sparring gym with a mentor and insurance in case you screw up, you feel like Rocky training by punching the frozen side of beef.  In criminal cases, public defenders are almost always willing to share advice or an encouraging word in a criminal case.  Most local Bar Associations put on informal CLE for cheap or for free.  The MSBA list-serv for solo and small firm attorneys is great, as may be the speaking calendars of preemininent attorneys in your practice areas.  Many of the specialty bar associations have similar list-servs for free or as part of the price of annual dues.  Some resources even publish calendar feeds so that their events show up on your Google or other calendar if you set them up that way.  In short, free help is more abundant than you may realize.

11)  Finally, if you screw something up (or are accused of screwing something up), do not despair but address it like a professional.  Contact your support resources, including your mentors, the MSBA ethics hotline, your malpractice carrier if necessary.  If you have screwed something up and it’s beyond repair, you may need to notify the client.  Sometimes, the sheer honesty of admitting a screw-up and offering a refund will so shock and stun a client that they will accept your apology, forgive you and move on, and maybe even refer you other work in the future, with your character trumping the mistake.  I have personally witnessed clients bursting out laughing with surprise and open-heartedness when I have told them that I screwed something up and take full responsibility; those clients have referred me paying work thereafter.

In some cases, if you screw up you may have to offer to withdraw, or in fact withdraw whether the client wants it or not.  Sometimes you may have to advise the client to consult independent counsel.  Screw-ups happen, though we must take responsibility for them as professionals; that’s why even the most respected, preeminent “SuperLawyer” attorneys in this state carry malpractice insurance.  Some screw-ups rise to the level of ethics issues, but it’s far better to “get in front” of the issue like a professional early – because it’s good business and because it’s the professionally required and ethical thing to do.  If you believe you have a “red ball” problem, do not hide; contact your mentors and other resources soonest and do the right thing.

Good luck, new colleagues; if I can help, call me and I will try to help or get you to someone who can, if I am able.

Bruce Godfrey, Attorney (MD/DC)
Owings Mills, MD
410-561-6061

New Mentee of the Law Office: Sharnae Smith, Esquire

The Law Office is pleased to announce that the Law Office has a new mentee in solo practice. Sharnae L. Smith, Esquire, a 2010 admittee to the Court of Appeals of Maryland and the proprietor of Smith Legal Services, LLC in Bowie, Maryland, will be training periodically with the Law Office of Bruce Godfrey on issues involving labor law including assisting on certain pro bono matters handled by the Law Office.

Ms. Smith and Bruce Godfrey became acquainted through the Maryland State Bar Association’s Solo and Small Firm list-serv; the two attorneys will begin cooperating on certain labor law projects beginning December 22, 2011. The Law Office is looking forward to successful cooperation on unemployment appeals and other matters germane to both attorneys’ practices.

Bruce Godfrey joins The Black Law Network on invitation

August 18, 2011: On the invitation of Columbia, Maryland-based family law practitioner Dondi West, Esquire of DonWest Legal, LLC, Owings Mills-based practitioner Bruce Godfrey joined The Black Law Network.

The Black Law Network is “the first social networking site exclusively for members of the African American legal community. BLN was created out of necessity by a group of African American law students and attorneys.” While Bruce Godfrey is not African-American by heritage, the Law Office of Bruce Godfrey is grateful for the professional invitation and supports the goals of promoting the advancement of African-American attorneys in all aspects of the Bar and Bench. Bruce Godfrey’s profile on The Black Law Network discloses the foregoing personal facts and professional support for the Network.