Der Process
Rotten From the Head Down
The new age of digital communication has opened up all kinds of possibilities. Many of them involve questions of security and trust. Not only does digital information lack the context that we have come to rely on in making judgments about reliability, but the nature and content (“user name”) of digital media itself can deceive the user into thinking that they are anonymous and their speech consequence free. It seems all should have learned this by now but some Federal prosecutors in New Orleans did not. As the Fifth Circuit put it:
First, the government argues that anonymity diminishes the cloak of authority that would otherwise surround the prosecutor’s pronouncements. Because the online community does not know that a prosecutor is speaking, it cannot be adversely influenced by his inflammatory opinions. Second, the extent of the publicity surrounding the anonymous comments is uncertain because no one knows how many people read online comments to the newspaper of record. Third, these comments amounted to no more than voices in a chorus of public opinion on the Danziger Bridge trial and were no more likely to exert an influence than those of any other chorister. These arguments are not insubstantial, but they are outweighed by the insidious nature of prosecutorial anonymity, the growing influence of online communications to mold public opinion in our society, and the danger of mob reactions.
Anonymity provokes irresponsibility in the speaker. A prosecutor may attempt to comment anonymously in a pending case, whether in a bar, on a talk radio show, or online. It is hard to cloak one’s experiences, however, and listeners can easily infer, as a number of readers within the New Orleans USAO evidently did, that someone with “insider knowledge” is making thecomments. The speaker thus trades on his air of self-importance and his special knowledge, while imparting a biased and dramatic flair to his anonymous commentary.
At pages 33-34. Perhaps, the most troubling aspect is not that a Federal criminal prosecutor was posting anonymous comments trading on inside information but that we still don’t know exactly how many were. The Court found the government’s zeal to get the bottom of the matter somewhat lacking. Which seems to be consistent with the “everybody’s doing it” spirit which seems to pervaded the US Attorney’s office in New Orleans from top to bottom.
Someone once said the organization is always more primitive than the individual. Institutional ethics presents many intractable challenges because they shape the perceptions of the individuals who belong to the institution in ways that favor the institution. “Circling the wagons” is an emotional response that cannot be unlearned, no matter how sophisticated the wagon drivers are. Digital media are highly adept at reinforcing these same sorts of biases. You may think that you are searching Google but Google (and all the rest) are really searching you. To figure out how to cater to your biases, to elicit an emotional reaction, to get you to pull the trigger on some decision to part with something dear to you. The Fifth Circuit’s warning about the danger of mob reactions is well taken, as a certain dentist might agree. The prosecutor’s delusion that they were acting in the public interest is frightening: they were actually juggling a form of dynamite whose explosive power we are only now starting to glimpse.
Legal ethics has traditionally focused on the indivdual. Discipline is meted out to individual lawyers who violate rules largely written to guide individual, not insitutional behavior. An insitutional failure of the type presented here just isn’t contemplated by the rules. We have talked about discipline of law firms for many years, at least since Ted Schneyer’s 1991 Cornell law review article but only two United States jurisdictions, New York and New Jersey, have rules providing for law firm discipline. The concept of “ethical infrastructure” remains largely an academic discusion. When was the last time you saw a continuing education class devoted to creating a law firm’s ethical infrastructure? We are still treating the profession as if we were all solo practitioners?
United States v. Bowen, et al., isn’t an outlier but a symptom of the biggest problem in legal ethics today: complacency.
The Two Deweys
When I took legal writing my first year of law school, our instructor would use exemplars from the fictional firm and comic trope “Dewey Cheatam and Howe” to teach how to write legal papers. Everybody seemed to think that this was mildly amusing.
Lawyers from a different Dewey firm went on trial last week, accused of cheating ’em and how! Nobody thinks this is funny.
Even in law school, the use of the Dewey Cheatam name made me a feel a little uncomfortable. Up until that time, I had not really thought of the profession as a whole as being seen in bad light by anybody. Having no life experience of lawyers, my image of lawyers had been shaped by media, not so much Perry Mason but The Defenders.
E.G. Marshall, Lawrence Preston in “The Defenders”
Maybe it made us all a little uncomfortable, which is why we proto-lawyers laughed at it. Lawyers, after all, are supposed to be smart people that you could trust. The idea that we might be cheating people while pretending to be trustworthy, reduced to the very name of the law firm used to teach law students, even then suggested an unstudied, perhaps an almost unconscious, cynicism about the profession. Of course, that was only a first taste. The prevailing feeling among most of my law school peers was that you either had to be in top 10% of the class and obtain a position with a large law firm, make partner in seven years and relax, or that you were doomed to lifetime of drudgery.
My introduction to Dewey Cheatam in 1982 was about the time that Findley Kumble was on its way to becoming the first mega firm, a process of accretion based on a number of mergers and acquisitions that would eventually unravel as partners and clients moved on to greener pastures. At the time it seemed an outlier, a situation largely wrought by the egos of the lawyers involved. The rising tide of Golden Age revenue was lifting all boats. But later, other firms, many other firms followed the same route as the tide began to go out. Part of the reason the tide went out is that the value proposition presented by large law firms and the lawyers in general increasingly had less appeal, first to consumer clients and then to corporate clients.
It is common to feel cheated when you realize you are paying for something you can get more cheaply. The Golden Age was extremely lucrative for lawyers, not so much for clients. Part of the cost of all that lucre for the profession was the acid bath of cynicism that it seemed to spawn. Lawyers are known for their pessimism; indeed, we are well paid for telling others exactly why the glass is only have full. We can see too clearly the ways much lawyering in the Golden Age was about acquiring that lucre and little else.
The link between the two Deweys should be largely of historical interest now. Dewey & LeBoeuf is a marker, an end of an epoch signpost, as the profession reinvents itself, as it reforms its value proposition. It’s value proposition not only its clients, but its value proposition to itself. The end of the Lawyer Bubble, the end of the Golden Age should mean the end of the idea that lawyering is the path to great wealth, affords us an opportunity to re-discover the true worth of our profession and leave cynicism behind. Let’s take it.
Orson Welles The Trial (1962)
Slippin Into Darkness
The saga of Slippin Jimmy aka James McGill, Esq,, aka Saul Goodman naturally attracted the attention of ethics lawyers. Ethically challenged lawyers are nothing new on television but they don’t come more ethically challenged than this character, who we first met in “Breaking Bad” where is served one of the chief catalysts for Walter White’s descent into depravity and death (?). Ethically challenged lawyers are also nothing new to ethics lawyers and one of the best, Nicole Hyland,has given us a great running commentary on a fairly breathtaking catalog of ethical violations that we “Breaking Bad” fans know is only the beginning of Jimmy’s descent into ….Omaha.
And with the conclusion of this season’s run, courtesy of a crane shot of the iconic double line, we know that Jimmy’s actions reflect his choice. We can understand some of the reasons he makes that choice. Perhaps he can attain some success as a lawyer, maybe even some status as an associate or partner with that Santa Fe law firm but he literally flees from that because it can only remind him of the thing that he desperately wants but can’t get: the respect of his brother. There is something broken inside him, something his obvious intelligence, quick wit and considerable charm can’t overcome. We are not really privy to the depth and intractability of his dysfunction until we see him with old and late friend Marco, seemingly his only other friend outside of Kim, the associate at the upper crust law firm HHM.
It’s a tribute to well crafted television that we can suspend our belief and think its real. Even knowing how it ends up, right up until the moment when Jimmy turns around and abruptly leaves the Courthouse, I was rooting for him, for his success with the Santa Fe law firm, for his happiness, for some balm for his soul, only to realize with horror solidified by the brief colloquy with Mike at the parking booth that it was not to be, that it could not be no matter how much I or Jimmy might want it to be.
The world of “Better Call Saul” is, so far, noticeably less bloody than that of “Breaking Bad” but it is bleaker in some ways. Walter White had the pleasures of family and his son, as well as the somewhat more mixed bag that was his brother in law Hank. Jimmy has his relationship with the distant and imperious Chuck, who lives alone and looks like he always has. Chuck’s family is the law firm HHM, as we saw when the staff turned out to applaud his return. Mike has only the debris of a family, his daughter in law, his granddaughter, and the boulder that carries in his soul, the ghost of his dead son, whom Mike killed even before his birth in his choice to become a dirty cop. The only other family we have seen are the Kettlemens, who seemingly normal existence covers up a profound level of denial. Kim, the HHM associate earnestly counting her steps to partnership, is the closest thing Jimmy has to relationship but both of them are so emotionally stunted that the weak hug is the most passion that they can summon. It is the lack of real connection that makes Slippin Jimmy who he is. The only thing that lifts him out of himself is the thrill of the con. While he cares about his clients, that just isn’t enough.
Legal ethics at the surface is about rules and statutes. Deep down it about what makes the human beings we call lawyers tick. All of us see lawyer behavior at all levels of the profession that makes ask “why would she do something so clearly at odds with the rules?” Once we descend below the surface, fiction may furnish us with better understanding of what lies beneath. There are absurdities in “Better Call Saul” that make no sense in terms of rules, chiefly that Slippin Jimmy would even be able to be admitted despite his background and correspondence school degree. But that darkness that is gradually enveloping Jimmy is not unlike the darkness that dwells in every human heart, even perhaps especially the stone hearts of lawyers. Not a real lawyer? As exaggerated as he may be, Slippin Jimmy is all too real.
Present at the Creative Destruction
Shiva is in the house…
Professor William Henderson’s latest article is “Letting Go of Old Ideas” (h/t to John Steele and the indispensible (as we were recently reminded) Legal Ethics Forum.) As usually, his work is full of insight and abundant cross-reference to any number of personal, cultural historical signposts that you might recognize.
For me, the reference to Finley Kumble was all three. Although I never worked at Continue reading
Kafkaesq 
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