Der Process

Amateur Hour: Should Anyone Be Able to Practice Law?

/ David Cameron Carr / Leave a comment

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?

Is Resistance Futile? The Trust Problem in the Legal Profession

/ David Cameron Carr / Leave a comment

Realizing that resistance was futile and that I would inevitably be assimilated, I chose to join the Borg Collective.

What I mean is that I embraced Facebook, Linked-In, blogging, Constant Contact and the digital paraphenalia that we are instructed are essential for marketing a law practice in the 21st Century.   The social media are part of an evolutionary process that will one day result in a “hive mind” where every being will share the same consciousness.  Scientists are already working on direct neural links between the wet computer inside your head and the dry computers outside your body.  Such interfaces will eventually be small enough in implant in your brain.  Individuality and privacy will cease to exist.  We will exist in a world of perfect connectivity only imagined in the fetishistic texting of many a teenager.

But in the meantime, we have to deal with our lingering notions of privacy and individuality in this new cyber world , the cyber world the our economy increasingly requires participation in (lawyers, too, of course.)  Because we cannot yet peer directly into the souls of those we transact business with, we have to rely on the information that they provide us.   In the past, people lived in communities where the information necessary to transact business was largely communicated face to face.   The amount of information that can be transmitted that way is relatively small but the reliability of that information is relatively high because this mode of communication has been evolving for millions of years.  That is one reason that important business (like trials, where credibility is at issue) is still conducted in person.  The problem with digitally mediated information is trust:  there is much more information than ever before but so much of it is unreliable that we don’t know how much of it we can trust.

The implications for legal ethics are huge.  If you can summarize the vast territory covered by that term in one word, it would have to be trust.  It’s hard to think of a legal ethics issue that doesn’t involve trust – confidentiality, marketing, conflicts, screening, non-attorney involvement in law practice, the duty of government lawyers to provide independent judgment, prosecutorial misconduct, you name it.

A good example of how the trust plays out in the new digital world of law business is presented in Carolyn Elefant’s excellent blog on solo practice My Shingle.  She writes about “the ill-conceived and misguided site, AttorneyFee.com.”   The intentions are good:  allowing consumers to comparison shop for lawyers based on price in the same way that they would for other kinds of services, like hotel rooms or airfare.   But the execution is flawed, first because an attorney’s services are not uniform in quality like hotel rooms or airfare and because an hourly or flat rates don’t really tell a consumer much about how much a particular legal problem will cost, and second because the hard information on the site seems to be widely inaccurate and composed by folks who don’t really understand law practice.  In fact, the site appears to be deceptively marketed to the lawyers who participate without being told that they are signing up for providing “free consultations.”

Another problem is presented by sites that purport to rate lawyers based on anonymous feedback, such as Avvo.  This week brought the arrival of a small turd on my doorstep, my first evaluation on Avvo, a highly negative one.   Avvo boats that it presents “unbiased” ratings  and only posts reviews that are “clearly” from clients but there is no way to check whether the review really comes from a client.   A perfect vehicle for anyone the lawyer might have pissed off to exact anonymous revenge.   I am completely certain that my Avvo review was not actually written by a former client, in part because they are all lawyers, articulate and not shy about expressing dissatisfaction face to face.  Avvo  bills itself as an attorney marketing service and the presence of a negative review naturally induces the lawyer to ask for positive reviews from his clients.  I have had clients who have participated in similar contests on other ratings sites, countering reviews posted by competitors purporting to be from clients with their own reviews purportedly from clients.  So much for unbiased ratings.  The fact that Avvo bills itself as a marketing solution for lawyers is telling.  The ratings thing is a gimmick; it gives legal consumers the illusion that being dealt with fairly, to establish a feeling of trust that is actually based on the deception that this is place to get the straight scoop on who is good and who isn’t.

The trust problem is a lot bigger than our profession,  It infects our sister realm of governance to such a degree that important work in our society is no longer getting done.  The legal profession is one of the institutions that is charged with maintaining the trust necessary to make both government and society work.  That vast territory might be summed up in one word as well:  “justice”.   My joke about the rules of professional conduct, essentially written in the mid-19th century to address a lack of trust in the legal profession, is that they were ideally suited for a town of 25,000 people with 25 lawyers.  Its not clear how we make rules work effectively now to address the trust problem while acknowledging that lawyers are actors in capitalistic system.

It is a vital question.  The last great wave of change triggered by Bates v. Arizona, the decision that extended commercial speech protection to lawyers, is about to be supplanted by the next great wave of change, non-lawyers involvement in financing of legal service providers.    This change, like the last one, is economics: like Bates, it will be sold, at least in part, in terms of making legal services affordable by encouraging price competition (see Bates at 377-378.)  Think we have a trust problem now?  A few decades from now, joining the Borg might seem quite attractive; at least you would know who to trust.

Is it OK for State Bar counsel to lie?

/ David Cameron Carr / Leave a comment

He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you.  Nietzsche, Beyond Good and Evil, Aphorism 146

When the President does it, that means that it is not illegal.   Richard M. Nixon

Consider the following facts:

A State Bar discipline prosecutor assigned to an investigation of attorney misconduct telephones the office of a target of the investigation.  Along with another discipline prosecutor, they represent themselves to be a married couple from another state who received a direct mail solicitation from the lawyer and that they are interested in employing the lawyer.  They speak to a non-lawyer who identifies herself as a member of lawyer’s staff.  She makes a number of statements to the State Bar prosecutors that are later alleged to constituted the unauthorized practice of law.

Consider the following black letter law regarding the duties of an attorney:

6068.  It is the duty of an attorney to do all of the following:… (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…

6106.  The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.

Finally, consider that State Bar discipline prosecutors are charged with upholding these very laws and routinely prosecute lawyers for violating them.

Similar fact patterns have come to known be known as “pretexting”  or “dissemblence”.  One ethics opinion quotes Black’s law dictionary as defining “dissemblance” as  “To give a false impression about something; to cover up something by deception (to dissemble the facts.”  NYCLA Committee on Professional Ethics formal opinion no. 737.  This is, without a doubt, dishonesty. Some courts have upheld the use of “dissemblance” by investigators working under the direction of attorneys; for instance, the decision in Apple Corps Limited v. International Collectors Society 15 F. Supp.2d 456, 475 (D.N.J.) which involved private attorneys attempting to enforce intellectual property rights.  They hired investigators who posed as consumers and telephoned direct marketers to investigate their sales activities.  And the use of undercover agents who dissemble in the investigation of criminal activity has long been recognized (see e.g. United States v. Parker 165 F. Supp.2d 431 (W.D.N.Y.)  The underlying rationale is that dissemblance is necessary to investigate some types of wrongdoing that cannot otherwise be penetrated.   Limited dishonesty can be tolerated to fight certain monsters.

The use of dissemblance by attorneys themselves, as opposed to non-attorney investigators working under the direction of attorneys,  has been met with different results.  In Re Paulter  47 P.3d 1175 (Colo. 2001) involved a deputy district attorney who told a criminal suspect holding a hostage that he was a public defender to induce him to surrender. The Colorado Supreme Court, noting that there was no exception to Colorado Rule of Prof. Conduct 8.4(c) (“It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and imposed discipline of probation with a stayed suspension of three months.   The Colorado Supreme Court upheld the disciplinary board’s finding that a secondary motive behind Pautler actions was to keep the suspect talking about his crimes without the benefit of requested legal counsel.

They said this about what honesty means to the profession:

The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living up to our obligation; but, they certainly do not signal that the obligation itself has eroded. For example, the profession itself is engaging in a nation-wide project designed to emphasize that “truthfulness, honesty and candor are the core of the core values of the legal profession.” Lawyers themselves are recognizing that the public perception that lawyers twist words to meet their own goals and pay little attention to the truth, strikes at the very heart of the profession – as well as at the heart of the system of justice. Lawyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the perception of it may diminish.

In Re Gatti 8 P.3d 966 (Ore.2000) involved a lawyer who misrepresented himself to be chiropractor in telephone conversations while investigating fraud on behalf of several clients.  The Oregon Supreme Court applied Oregon’s disciplinary rule DR 102(A)(3), almost identical to ABA Model Rule 8.4(c), and found that there was no exception to the rule.  The United States Attorney’s office for the District of Oregon appeared as amicus and, along with the Oregon Attorney General, argued that the court should recognize an exception to the honesty rule for government lawyers.  Amici for a number of consumer protection organizations also appeared an argued for an judicially created exception for their dissembling activities.  The Court declined to adopt those exceptions, finding that the rule requiring honesty is applicable to all lawyers and imposed a public reprimand.

Following Gatti, Oregon amended is disciplinary rules, adopting a version of the Model Rules with this exception:

(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. “Covert activity” may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

The exception is limited to supervising “lawful covert activity”.  Lawyers in Oregon are still directly bound by a duty of honesty.

There is no exception to the rules in California imposing on lawyers the duties to be honest in personal and professional life and to use only truthful means in the maintaining the causes confided in them.

Despite this, the position of the State Bar is that State Bar counsel are entitled to employ dissemblance (or in plan speak, lie) about their identities because the State Bar as an arm of the Supreme Court is involved regulatory work that is in nature of law enforcement and its attorneys are government attorneys.  The Bar sees no distinction between misrepresentations made by investigators and misrepresentations made directly by bar counsel themselves.  Like the US Attorney in Oregon, the State Bar sees an implied exception to the honesty rule simply because they work for the government.

This despite a litany of discipline cases that speak of the importance of honesty as cornerstone value of the legal profession and the lack of any exception to the duty of honesty.  “The conduct of petitioner violates the fundamental rule of ethics—that of common honesty—without  which the profession is worse than valueless in the place it holds in the administration of justice.  Tatlow v. State Bar of Calfornia. (1936) 5 Cal.2d 520, 524. “Subdivision (d) of section 6068 obligates an attorney to “employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth.” The statute requires an attorney to refrain from misleading and deceptive acts without qualification. [citation].  It does not admit of any exceptions.”  Rodgers v. State Bar (1989) 48 Cal.3d 300, 315.  “The State Bar Act makes any act of dishonesty or misleading of a court to be disciplinable.”  In the Matter of Lais (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 112, 122.   “The commission of any act of dishonesty constitutes a violation of section 6106.” In the Matter of Farrell  (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 490, 497.

The State Bar it seems has lost sight of the truth eloquently stated by Colorado Supreme Court:  “if lawyers are dishonest, then there is a perception that the system, too, is dishonest.”  This despite the fact that it is exactly that truth that its Office of Chief Trial Counsel purports to serve.   Every California lawyer should now take notice of the the possibility that the next client that they talk to might not be a client at all.   Once unwritten and undefined exceptions to a fundamental value of the legal profession are condoned, the danger is that they will naturally expand.   Anyone who still takes the fantasy that the legal profession is still a self-governing body should take heed:  this marks the maturation of State Bar as an aggressive government law enforcement agency, a body more concerned with protecting consumers than protecting the values of the legal profession.

Some will naturally applaud this as long overdue and inevitable.

Others will wonder what new abyss  this will lead us to.

Truth, Proof and Truthiness

/ David Cameron Carr / Leave a comment

Don’t think I’m taken in

By stories that I’ve heard

I just read the Daily News

And swear by every word.

“Barrytown“  Steely Dan

Clients* think in terms of truth.

Lawyers think in terms of proof.

This thread runs through the news this week with the verdict in the Casey Anthony trial and the developments in the DSK case.   While  the process worked very much as it should work, from the lawyer’s perspective, these stories are big news because the exploitation of these cases by the mass media.    Everyone knew the truth that about Casey Anthony and Strauss-Kahn; Nancy Grace and the “perp walk” told it to us.  But when the proof was examined, in one case by a jury and the other by lawyers,  it was found wanting and flawed.  So the public perception is that justice was not served.

You don’t have to wade into the deep waters of epistemology to understand the limits of the legal process when it comes to “the search for the truth.”   Some parts of of that process, like privilege and confidentiality, are seemingly designed to hinder it, although they serve the rationale of the adversary system that the “truth” is better served by a contest between equals then an inquisition by an all-powerful magistrate.  But the view of many will be that, once again,  pettifoggery has allowed the guilty to remain unpunished.

Lawyers often lament that they are unloved and misunderstood by society and wonder how they can change that.  One  President of the State Bar of California even attacked that staple of Americana, the lawyer joke.  A majority of the Board of Governors wonders how anyone question their dedication to the protection of the public.  They look at the woefully weak  bill of particulars outlined by the Legislative analysis underlying the creation of Governance in the Public Interest Task Force, an analysis that includes such nonsense such the idea  that Scott Drexel was not reappointed because he was too tough on lawyer discipline,  and react with understandable anger.

Welcome to the 21st century, lawyers.  “Truthiness” has overtaken society, government and the State Bar of California as well.  The Drexel story line was a classic post hoc ergo propter hoc  fallacy: Drexel was tough on discipline, Drexel was not reappointed, therefore Drexel was not reappointed because he was tough on discipline.  As no one in the know would disclose the real reason why he was not reappointed, the legal press invented this explanation to fill the vacuum.   The fact that the discipline system began to grind to halt under his administration, as revealed by the backlog numbers, did not register;  math is hard, as Barbie once told us.  The possibility that Drexel wasn’t reappointed for reasons that could not be revealed never entered the popular imagination.  It made a good story that drew nourishment from popular stereotypes.  It felt right; it had Truthiness.

We lawyers live in a bubble where proof matters.  Increasingly, proof seems not to matter much outside of it.   Its part of the gap between us and the larger society that is large and growing;  it means trouble both for us and for them, because however much they despise us, they need us.   And we need them.   Flattering ourselves with this notion won’t help; if there ever was a time to jettison professional hubris, this would be it .  What might is re-establishing the ideal that society as a whole is our *client.   We are are not going to make it as mere “service providers.”

But they will never love us.  The compromises that our part of the process (Der Process) are necessary but hardly joyful.   They can be subtle to point of  incomprehensibility, even to us.   Process itself can take over, erasing substance to the point of absurdity (e.g. Jarndyce and Jarndyce from “Bleakhouse“).   The truth that ultimate justice in the real world sometimes means that the guilty go free is unpalatable and unacceptable to many.

But we have chosen to be part of that process, perhaps without fully realizing what we were getting ourselves into.