CTLA asks to join Jacoby & Meyers v. Judges of the Superior Court: Argues that lawyer self regulation is at risk

CTLA’s principal argument against  Jacoby & Meyers’ bid to have a federal court judge enjoin enforcement of the state court rule barring non-lawyer investment in law firms is that allowing non-lawyers to own law firms would spell the end of lawyer self-regulation ” by creating a class of persons [non-lawyer investors / owners]  who would be in a position to control legal practices and yet would not fall under the authority of the Rules.”  In other words,  non-lawyer investors / owners would “incentivize” “their” lawyers to bring in money to the firm never mind the Rules. (Sound familiar?)   CTLA argues that the grievance process currently protects PI clients (one hopes this argument is off the mark; and that what protects PI clients is lawyer self-regulation), but that the grievance process would be of no use against unscrupulous non-lawyer investors / owners.  (But the grievance process would  still provide “protection” against lawyer misconduct. And then there might be malpractice insurance.  How would insurance companies underwrite malpractice risks for firms owned by non-lawyers?)  If allowed to join the case as an amici, CTLA will surely develop their arguments, which are important.

For CTLA’s Memorandum In Support of its Motion for Permission to Join as Amicus Curiae click here.

Lawyers Behaving Badly – Are there any lessons to be learned?

Jeremy Pitock, a former partner in charge of the IP department at Kasowitz Benson Torres and Friedman, is suing his former firm for wrongful termination.  As reported by the WSJ Law Blog and at Above the Law the firm is defending itself in part by filing a separate lawsuit against Pitock alleging that Pitock was a serial harasser. You can find a copy of the firm’s complaint at Above The Law by clicking here. Also at Above The Law  a statement about the lawsuit by Pitock’s lawyers – click here for a post that includes the statement.

For background information about the Kasowitz Benson v. Pitock mud wrestling contest, see posts at the WSJ Law Blog here and here.

One could put the whole saga down as an example of a turbo-charged, male, in-your-face, egotistical, expensive food fight that is now and for the foreseeable future will be a matter of public record, which ought to be and will be for the most part ignored.  But perhaps there are lessons to be learned that might be of general application.

First, the firm alleges that Pitock harassed 12 female associates over a period of a year and but that the firm had no clue because the women were afraid to come forward.  Obviously I have no idea what happened.  But is the allegation by the firm that 12 women were harassed and were too scared to complain an indirect admission by the firm that something is (or was) wrong with the firm culture.  How can it be that a partner could harass 12 female associates over the course of a year and (a) the women be afraid to report and (b) the firm leadership have no clue what’s going on?  

Second, if, as has been suggested, Pitock had a drinking problem, one option (which, for all I know, may have been tried) might have been an anonymous referral to lawyers concerned for lawyers.  As it is, the impression one gets – or at least the impression I get – from reading the news articles and complaint is of lawyers not being concerned about lawyers at all.  The lack of regard for others, and the  breakdown in basic civil behavior reflected in the news accounts and allegations are actually depressing.  

Third, why didn’t someone say something sooner?  Surely people at the firm knew what was going on, people other than the “victims.”  I put “victims” in quotes because in this day and age do women have a choice not to be victims of this kind of conduct?  They ought to.  As difficult as it surely can be to talk about inappropriate behavior, there ought to be a way for everyone to do it that is fair, that is private and that works.  Of course maybe someone did say something.  Maybe there was a system in place.  But if so, it seems fair to conclude it didn’t work.

In making reference to a process at a law firm to handle inappropriate behavior, I don’t mean to skip over step one.  Step One is that the people involved to talk to each other if at all possible about what happened. Very difficult to be sure, but perhaps more likely if both know that there is an effective alternative available.  Where appropriate, a private apology should be given.  Again, more likely if firm culture emphasizes civility and will not tolerate insults and threats especially from those in positions of relative authority.  Punishing social rejection or even just a polite, “please don’t” with an explicit work-related threat by a person in authority to a subordinate should be understood as unacceptable – as something that will not be swept under the rug.  Other people will know about it and they will disapprove of it.  Of course there will be questions about who is telling the truth, but the matter should be addressed even if the evidence is conflicting and insufficient to assign fault and formal consequence. Better to deal with a messy situation as honestly and fairly as possible under the circumstances even if the result is far from perfect and layered in uncertainty than to turn a blind eye to it.  In the absence of clear evidence about what happened the message might be simply this:  something happened that isn’t good for anyone.   Do better from now on.  

Civil behavior ought to be part of every firm culture (I can hear people scoffing or worse).  For an understanding of what civility is and why it is important to one’s physical, mental and emotional well being (and, therefore, to one’s profitability and to the firm’s profitability as well), see Choosing Civility by P.M. Forni available from Amazon here.  Once one has a basic understanding of all that civility encompasses and begins to put it into practice (a life long pursuit), then turn to Forni’s  The Civility Solution:  What To Do When People Are Rude available from Amazon here.  

I can hear some derisive laughter, but remember:  we are all imperfect, we can all do better and we do have choices.

 

 

 

Ethics Issues part of Conference on The Future of The Global Law Firm – Nonlawyer ownership

Excerpt from Conference Brochure:

2:15-3:45 Panel 3: Ethics and Professional Values
Non-lawyer ownership interests in law firms is prohibited in the United States by ethics rules in every jurisdiction, on the ground that such ownership will threaten lawyers’ ethics and professional values. This panel will discuss whether this is a realistic concern. It will explore the impact of nonlawyer ownership, and public ownership in particular, on the ideaof law practice as a profession with a distinctive set of responsibilities and aspirations. How are these changes likely to affect the ways that lawyers provide services and conceptualize their professional identifies and obligations? Are they likely to generate particular types of ethical issues and liability risks for law firms?
For more information about the conference, which is free and will be held on April 17 and 18, see post at The Legal Profession Blog.

Attention PI Lawyers: Do you ever advance living expenses to poor clients?

If not, and if you can afford it, what’s wrong with you? Don’t you care about your clients as people? Unfortunately things are not that simple.

Take a quick look at this post from the Legal Profession Blog about a Nebraska lawyer who was suspended for 60 days because he advanced expenses on “humanitarian grounds” to a poor client. Punishment seems harsh. On the other hand, all hell would break lose if lawyers were permitted to offer to subsidize clients until their cases were over. One can imagine the ads: “Room and Board provided until case settles!! Get what you need NOW and what you DESERVE after the case is over.”

Rumor has it that some lawyers in fact do offer “advances” to clients in order to lure them away from other lawyers. Have you ever heard of such a thing? Would you report it to SWG? But there’s always the fundamental question: do you “know” that a particular lawyer has done such a thing? Rumors are a dime a dozen and they are rotten.

Can Firm Culture Inadvertently Fail To Prevent If Not Actively Promote Unethical Conduct?

Yes.

See, for example, Eat What You Kill : The Fall of a Wall Street Lawyer by Milton Regan

A driven, talented and highly successful bankruptcy lawyer ends up in prison for making a false statement under oath in bankruptcy court. Big fees, a great deal of pressure within the firm, a bad decision that no one noticed (or did someone notice? should someone have noticed? it would have cost the firm a lot of money), did the lawyer believe that the statement he signed under oath was the truth or at least in the category of “no harm, no foul?”

In law firms perhaps no factor weighs more heavily than firm culture when it comes to ethical behavior. If firm leaders make clear by word and deed that ethics matter, other lawyers in the firm will follow suit. If firm leaders do not affirmatively set a high ethical standard, other lawyers in the firm will follow suit. This does not mean that law firm leaders are the proximate cause of either ethical or unethical conduct by other lawyers in the firm, but the example firm leaders set matters.