The Mindful Lawyer

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.

Look to ABA for Discipline Standards Reform

The strange tango between the State Bar of California and the California Supreme Court involving the return of 24 discipline cases to the Bar has focused some attention on one of more problematical areas of discipline law, the Standards for Attorney Sanctions for Professional Misconduct.   These written guidelines, currently lodged in Title IV of the Rules of Procedure of the State Bar, were formulated and approved by the State Bar Board of Governors in  the mid-1980s.  State Bar Executive Director Joseph Dunn is quoted as telling the current Board of Trustees last week that that it may be time to review those standards.

The Standards got off to an uneven start.  Originally, their purpose was to the achieve some consistency in the decision making  of  the voluntary “referees” the adjudicated discipline cases at the hearing stage prior to the birth of our current professional State Bar Court in 1989.  They were approved by the Board but apparently never formally approved by the California Supreme Court (although I was told otherwise by a former Chief Trial Counsel, who promised documentation that never materialized.)   It is not even clear that the Supreme Court was even consulted in their drafting, as incredible as that seems in today’s discipline world.   The Supreme Court didn’t waste much in time proclaiming the Standards as “mere guidelines” that did not bind them (Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550.)  A subsequent decision described a particular Standard, Standard 2.2(a) regarding misappropriation as  “not faithful to the teachings of this court’s decisions. ” (Edwards v. State Bar (1990) 52 Cal.3d 28, 38.)  While the Court did embrace the Standards as the beginning of the analysis of the appropriate discipline, not the end, it found the Standards singularly unhelpful in In Re Brown (1995) 12 Cal.4th 205, 220.  Brown is one of the cases cited in the State Bar’s motion filed July 3 seeking to clawback another 24 discipline cases from the Supreme Court.  In the end, the Supreme Court looked to its own case law to determine the appropriate discipline for a tax related criminal conviction.

The Supreme Court’s criticism of the Standards in Brown was heeded.  In late 1990s, a senior attorney in the Office of Chief Trial Counsel worked on re-writing the Standards to provide more specific guidance.  No one was happy with the first draft.
The project was abandoned even before the State Bar was shutdown on 1998 after Governor Wilson’s veto of the State Bar dues bill.

After the shutdown and subsequent resurrection of the discipline system after the Supreme Court ordered special assessment, the priority was resolving the large number of cases that had accumulated during the hiatus.   Settling cases was viewed as a way to keep the cost of the discipline system down, an important consideration because of the inability of the State Bar to raise dues and increasing labor costs;  in the June 2005 California Bar Journal, State Bar of California President John Van De Camp lauded retiring Chief Trial Counsel Mike Nisperos 41% increase in stipulated decisions while boasting ” bar money is being spent carefully.”  President Van De Camp also predicted that the tenure of incoming Chief Trial Counsel would see “continuing improvements in the discipline system.”

Three weeks later, the Supreme Court issued its decision in In Re Silverton (2005) 36 Cal. 4th 81, the other decision cited in the State Bar’s “clawback” motion .   Silverton was misread by the Office of Chief Trial Counsel (OCTC) as endorsement of the Standards as binding guidelines.

The odyssey of the Van Sickle matter shows that Supreme Court intended no such message (In the Matter of Van  Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. ___, 2006 WL 2465633.)  Mr. Van Sickle was found culpable of violating Cal. Rule Prof. Conduct 4-200, charging an unconscionable fee.  The hearing judge recommended six months actual suspension, consistent with the mandatory language of Standard 2.4, which says that a violation of this rule “shall result in at least a six-month actual suspension from the practice of law, irrespective of mitigating circumstances.”  He appealed to the Review Department, which reduced the recommended discipline to 30 days actual suspension, citing several mitigating circumstances.  OCTC petitioned the Supreme Court for review and it remanded the case back to the State Bar for reconsideration in light of Standard 1.7 and Silverton.   On remand, the Review Department explained in some detail why it wasn’t bound by the seemingly mandatory language of Standard 2.7.  It increased the recommended discipline to 3 months actual suspension, still less than the minimum prescribed in the Standard.  OCTC again petitioned the Supreme Court, arguing that the State Bar Court was bound by Silverton to follow the Standard.  The Supreme Court denied the petition, tacitly endorsing the Review Department’s analysis which firmly established that the Standards do not dictate the result, no matter what the seemingly mandatory language of the Standards may say.

Van Sickleillustrates two fundamental problems with the Standards.  The first one is mandatory language that belies the true nature of the Standards as guidelines, a legacy of the Standards original purpose of guiding a large number of volunteer adjudicators.  The second is a rigid categorical approach the purports to dictate the result based on the statute or rule violated, not on assessment of the misconduct itself.  The  Supreme Court has said that consistency is important but the quest for consistency is in unavoidable tension with the case by case approach adopted in Supreme Court precedent (“As the final and independent arbiter of attorney discipline, we are permitted to temper the letter of the law with considerations peculiar to the offense and the offender” Howard v. State Bar (1990) 51 Cal.3d 215, 221-22.)

Prosecutors, naturally, like rigid categories.  Not only do they promote consistency, but they are easy to apply.  They remove discretion from those dangerous people we call judges.  Following Silverton,   Chief Trial Counsel  Scott Drexel issued a memo to his prosecutors in June 2006 setting forth the office’s policy on application of the Standards.  The practical consequences of this memorandum are set forth in the 2009 State Auditor’s report on the State Bar:

….in 2005 the California Supreme Court criticized the State Bar for failing to bring all possible charges against an attorney who was ultimately disbarred, and for failing to follow its own sanction standards—internal guidelines that delineate the appropriate actions that the State Bar should take against attorneys who have repeatedly violated professional or legal standards. In response, the State Bar’s former chief trial counsel [Drexel] issued a memo directing staff to apply sanction standards consistently and to be willing to take more disciplinary cases to trial if warranted. The trend in the number of cases that ultimately went to trial in the State Bar Court each year has increased from 65 in 2004 to 127 in 2008, a 95 percent increase and is consistent with the change in policy. [page 19]…Additionally, the former chief trial counsel provided staff further clarification in August 2007 with the State Bar’s Statement of Policies, Objectives, Procedures and Practices Governing the Determination of Level of Discipline. Before this policy shift, according to the former chief trial counsel, the State Bar settled before trial about 90 percent of cases in which the accused attorney articipated. However, he recently estimated that this percentage has decreased to about 75 percent. He also stated that in the past, the State Bar was more willing to offer settlements at lesser discipline levels to resolve cases, and he attributes the recent decline in settlements to the State Bar’s unwillingness to agree to dispositions that are not consistent with the sanction standards. [page 29]

These policies created the growth in investigation backlog and “notice open” backlog (discipline cases where the investigation was complete and charges ready to file) that become the object of the Herculean effort to eradicate the backlogs last year.   Cases were taking months and years to resolve;  I had one investigation matter that took three years to resolve.

Clearly application of these flawed  Standards in a mechanical way, the approach one favored by the Office of Chief Trial Counsel, is impractical.  Revision of the Standards, something everyone has recognized as necessary for most to the last two decades, should be moved to the front burner.  Its a daunting project;  work began on the current proposed new Rules of Professional Conduct , California’s version of the Model Rules, began in 2001 and their ultimate approval in nowhere in sight.  We can’t spend ten years re-drafting the Standards.

Fortunately, there is another set of disciplinary standards that have been in use by state disciplinary authorities and the Federal Court for some time now;  the ABA Standards for Imposing Lawyer Sanctions.   Unlike the California Standards, they have the singular virtue of keying the appropriate sanction to the nature of the misconduct rather than the particular rule of statute violated.  This avoids the Van Sickle problem.  It also echos the California Supreme Court’s decision In re Morse (1995) 11 Cal.4th 184.  In Morse, the Supreme Court, flummoxed by the broad, vague language of the Standards (Morse, at 206),  it was in Brown, examined the case law and turned to two key questions:

…our determination of the appropriate discipline ultimately depends on the answers to two key questions. First, what did Morse do wrong? Second, what is the discipline most  likely to protect the public, the courts, and the profession, or stated conversely, to deter Morse from future wrongdoing?

Morse at 208-09.   The simple principle that it is the nature of misconduct, including the potential for future harm, that should determine the appropriate discipline.   This the approach that the ABA Standards take.

At the time, we in the Office of Chief Trial Counsel, regarded Morse as important guidance, more important the perfunctory statements about the Standards promoting consistency.  Consistency is important but less of an issue when decisions are made by a cadre of professional judges instead of a gaggle of several hundred volunteer referees (especially when assisted by a Supreme Court that consistently makes decisional law in the discipline context).   The hobgoblin of small minds that is the current Standards for Attorney Sanctions for Professional Misconduct has  made the work of discipline more complicated than it needs to be for everyone.   The ABA Standards, while not perfect, provide the starting point for drafting a set of California standards that can truly be helpful in reaching fair and timely sanctions.

corruption: the legal profession’s crisis of meaning

How are we to avoid those in office becoming deeply corrupt when everything is devoid of meaning?

Kafka, Der Process (also known as The Trial)

Larry Lessig’s commencement address to the Marshall Law School graduating class addressed the topic of corruption.  Not just the obvious, capital C Corruption of undue influence but the more subtle of corruption of a profession that has lost touch with a large part of what it means to be lawyer.

Instead my point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the people part. The person part. Or the real person part. The part that touches real people. With real problems.

The part that keeps a family in their home against an unjust demand for eviction. Or that enforces a simple contract with a bank, to supply the credit for a coffee shop. Or that protects a woman against her abusive husband. Or that forces an insurance company to pay on a claim they rightly owe. Or that defends a child in a foster home against the neglect of a distracted state.

This too is law. The law of Erin Brockovich, not the law of Cravath Swaine and Moore.

But here’s the thing about this law:

No one thinks it works well.

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

The law of real people doesn’t work, even if the law of corporations does.

This is a natural consequence if lawyers are viewed as hired guns, or a mere legal technicians, rather than as agents of justice.   Legal ethics is largely about how lawyers fulfill the role of agents of justice in a capitalist society.   Ethics is inseparable from ethos; when no one is quite sure what the meaning of our work is, our system and all the participants in it are corrupted.  Recognizing that corruption in ourselves is the first step toward changing it.

Amateur Hour: Should Anyone Be Able to Practice Law?

Removing all licensing requirements to practice law has long been a libertarian wet dream.  The dream has received new attention with the publication of First Thing We Do, Let’s Deregulate All the Lawyers, a book  by  Clifford Winston, Robert Crandall and Vikram Maheshri.   I confess that I have not read the book but I have read Winston’s op-ed piece in the New York Times  and Jordan Weissman’s less than flattering take on it from The Atlantic  (“a lot of it is…completely bunk.”)

One of the peculiar pieces of evidence cited by Winston in support of his argument that we need no standards for practicing law is the “fact” that:

the existing legal licensing system doesn’t even do a great job at protecting clients from exploitation. In 2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment…

There are lies, damned lies and then there are statistics.  Of all the complaints received in 2009, a significant percentage are probably still waiting final action, so I wonder where this statistic one comes from.  But let’s assume its true.  How does it lead to the conclusion that the current legal licensing system doesn’t do an adequate job of protecting clients? It ignores the fact (the real fact) that far more lawyers are disciplined than are disbarred.   The underlying assumption is that there are lots more lawyers that should be disbarred but are not.  This is an article of faith among the anti-lawyer crowd, a group that these economists are clearly sympatico with, but what is the evidence for it? Maybe I will have to read the book to find out but my guess is that I will find nothing there beyond the authors’ prejudices.  Nobody knows how good a job the discipline system does because there is no way to measure events that would certainly have happened but for the discipline’s systems intervention.   Logic tells us that removing one who has behaved badly in the past will prevent that person from behaving badly in the future but unless econometrics has moved beyond mathematics into mysticism, there is no way to quantify that.  The small number of lawyers who are disbarred is more likely to mean that the current licensing system does a very good job because the only a very small percentage of lawyers who meet its standards commit serious misconduct.

But let’s assume that this proposition is true:  the current discipline system does an inadequate job of weeding out bad actors.   How can you possibly leap from this to a conclusion that no system would be better?  Winston argues, like all good libertarians, that the magic of marketplace would take care of the substandard lawyers because ” Third-party providers of legal services information could do a service similar to that provided by Consumer Reports and Zagat Survey and effectively regulate the legal profession by monitoring the law firms’ performance and effectiveness.”   What planet are these guys living on?

Weissman does a good job of pointing out the absurdity of all this but then stumbles on an issue that is not just a libertarian fantasy but a real live possibility that is already happening in some parts of the world:  allowing public investment in law firms.   Weissman lauds this as the one area where the authors have a “point”.  As Winston puts it

if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.

Affordable legal services, coming to a computer screen near you,  provided by large corporations, maybe some of the same large corporations that have done such a great job providing financial and banking services in the last decades.   This may sound appealing, if you think of human beings as mere consumers of legal services, define them simply as actors in a macroeconomic matrix, homo economicus.   This is the modern way of thought,  after all.  Maybe we just can’t afford to have ideals anymore, including the ideal of an independent legal profession.

Winston cites Abraham Lincoln as an example of a lawyer who could not admitted to practice today. True but the the institution of legal ethics codes, education and admissions requirements and professional discipline  was the reaction against the poor state of the legal profession during the time that Lincoln practiced.

As their title, the authors play on one  of Shakespeare’s famous quotes,  one beloved by those who hate lawyers.  I would bet that the authors either don’t know or don’t care about the actually context of the quote.  It comes from Henry Sixth, Part 2 and uttered by Dick the Butcher, who is seeking approval from Jack Cade, who intends to seize power and install himself as an autocrat.  Killing all the lawyers, eliminating any independent opposition, is the first step toward Cade’s communist autocracy.   But there is more to Cade than a lust for power;  there is a contempt for learning and the law itself:

CADE
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny: the three-hooped pot; shall have ten hoops and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king, as king I will be,–

ALL
God save your majesty!

CADE
I thank you, good people: there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord.

DICK
The first thing we do, let’s kill all the lawyers.

CADE
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say the bee stings: but I say, ’tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since. How now! who’s there?

Enter some, bringing forward the Clerk of Chatham

SMITH
The clerk of Chatham: he can write and read and cast accompt.

CADE
O monstrous!

SMITH
We took him setting of boys’ copies.

CADE
Here’s a villain!

SMITH
Has a book in his pocket with red letters in’t.

CADE
Nay, then, he is a conjurer.

DICK
Nay, he can make obligations, and write court-hand.

CADE
I am sorry for’t: the man is a proper man, of mine honour; unless I find him guilty, he shall not die. Come hither, sirrah, I must examine thee: what is thy name?

Clerk
Emmanuel.

DICK
They use to write it on the top of letters: ’twill go hard with you.

CADE
Let me alone. Dost thou use to write thy name? or hast thou a mark to thyself, like an honest plain-dealing man?

CLERK
Sir, I thank God, I have been so well brought up that I can write my name.

ALL
He hath confessed: away with him! he’s a villain and a traitor.

CADE
Away with him, I say! hang him with his pen and ink-horn about his neck.

Perhaps homo economicus has no need for literature, learning or the law, except as commodities to be traded or consumed.    Or any understanding that the independent bar is a bulwark against a society dominated by economic despots.  Allowing anyone to practice law is a loony idea that hopefully won’t go anywhere anytime soon.  But a bar that is owned by large corporations is a very real possibility,  perhaps even a probability.   Without a doubt, it would lower the cost of legal services.  But what price would we pay for justice?