Month: August 2013

The Mindful Lawyer

/ David Cameron Carr / 1 Comment

I had a head full of ideas

That were driving me insane

— Bob Dylan “Maggie’s Farm”

A mind might be a terrible thing to waste but for lawyers overuse is the greater danger.  Most of what we do involves a degree of mental effort, even the more drudgerous tasks.  Legal research often involves hours of focusing on the driest of material, looking for an elusive thread of hope amid the dust of otherwise forgotten controversies, and document review can seem like living death.  Trial presents its own different Hell, not being able to think quickly enough to parry some thrust from opposing counsel, or to keep the judge or jury from going south.

We are used to sweating about the details.  And understand the consequences when we don’t sweat hard enough.   Pessimism is part of what we do;  figuring out worst case scenarios for people or institutions, helping them evaluate risks, guiding them toward choosing the best options.   It’s stressful but we eat stress for breakfast! Tiger Lawyer would understand.

There is no doubt that the combination of intense mental effort required and the stress involved in most areas of law practice is not healthy for the people we call lawyers.  Not healthy for mind, body or soul.   Part of what seems a new acceptance of this reality was apparent at the recent meeting of the Association of Professional Responsibility Lawyers in San Francisco.  Scott Rogers and Prof. Jan Jacobwitz of the University of Miami presented their work on teaching mindfulness to law students.  Mindfulness refers to the practice of living in the present moment, an ancient discipline that finds validation in modern neuroscience and psychology to an audience of ethics lawyers.

APRL members are somewhat notorious for sharing their views, sometimes quite vocally and there might have been a time when this presentation would have been a little too far, even for the Left Coast.  But the people in the room, the people who are the lawyers’ lawyers got it.  They see the problems first hand, in minds, bodies and souls of the people that make up the profession.

Lawyers as a group are cocksure, often to a fault.  The stereotype of lawyers as arrogant and self-absorbed is a staple of popular entertainment.  But the slow realization that the bubble years are over has shaken off some of that old attitude, and the next generation of entering lawyers will shake off a lot of the rest.  Lawyers will have to get used to living in a world where they aren’t so special any more.

Jacobwitz and Rogers understand that the next generation of lawyers will need a different mindset to succeed, a mindset built on the reality of risk.   Mindfulness, the ability to focus on the here and now, is a skill that can be taught, and it will be regarded as a natural part of a lawyer’s toolkit.  But the greater benefit will be to enable a younger generation of lawyers a better life.   Mindfulness can only help the repudiation of the dehumanized lawyer as a role model.

Mark of Cain Episode 3: The Empire Strikes Back!

/ David Cameron Carr / Leave a comment

At the conclusion of Episode 2 (Mark of Cain, Continued), the State Bar’s Chief Trial Counsel had asked the Regulation, Admissions and Discipline Oversight Committee (RADO) to approve an expansion of the “Consumer Alerts” policy to place a prominent badge proclaiming the lawyer to be a threat on the lawyer’s web page on the State Bar website when any notice of discipline charges is filed alleging any misconduct.  As Draconian as that policy clearly would be, the most alarming part might have been that the Chief asked for the sweeping policy change without asking RADO to put the proposal out for public comment.

In a State Bar rocked by allegations that it operates in something far less than a transparent matter, the kindling was set for a firestorm of critical e-mails to Chair and members of RADO, once discipline defense counsel spread the word through email and listservs.  It was conceded at the RADO meeting in May 913 that public comment was necessary and the Office of Chief Trial Counsel indicated that a revised proposal would be submitted in July 2013.

And so it has.  You can read all 14 pages of its dense prose here.

Transparency is evidently not the same as clarity because it took a few passes to figure out the proposed new policy.  It boils down to this:  you will badged with the Mark of Cain if you are accused of misconduct in at least 15 “cases” in State Bar Court, whether by notice of discipline charges or 6007(c) petition, or if the State Bar files a petition in Superior Court to assume jurisdiction over your practice.  15 “cases” is not defined but in State Bar usage is usually means 15 separate investigation case numbers, usually representing 15 complaints.  If you found culpable of any misconduct in State Bar Court, the badge stays put, even if it far less than what was alleged.

This makes the new proposal three things:  (1) consistent with the previously adopted policy making 15 or more “loan modification” cases a qualification for the threat badge; (2) still unfair in penalizing lawyers who might be exonerated of most charges or the most serious charges at trial; and (3) a massive retreat from the previous proposal’s blanket assumption that any conduct sufficient to warrant discipline creates a threat to the public.

The function of public comment worked here as it is supposed to work.  It helped to prevent over-reaching by the government by forcing it to go back to drawing board and articulate some rational basis for it.  The irony is that it may have worked better this time because there was no call for public comment.  Lawyers that I spoke to regarding the original proposal were outraged by the proposal but even more outraged that they were asked to comment on it.

This when matters affecting the discipline system that are put out for public comment often generate only a trickle of public comment.  Without a doubt this current proposal will less interest and less public comment.  Putting any proposal out in July is a good recipe for an indifferent reaction and many local bar associations are operating a half speed during vacation season.

And this looks like the proposal that should have been offered in the first place and might have if comment had been solicited from the discipline defense bar prior to the original proposal being floated and promptly sunk.  But that doesn’t happen anymore.