Last year, I took a just-licensed baby lawyer to breakfast. I applauded his fresh-faced enthusiasm. But I was taken aback by his wide-eyed eagerness to “not refuse any kind of case” and his resolve to “practice all areas of law.”
Unfortunately, I knew he’d tuned me out by the time I raised the potential pitfalls in trying to be all things to all people or when I mentioned his obligations under Rule 1.1: Duty of Competence.
Like many young lawyers who now find themselves unemployed and overwhelmed by unconscionable six-figure, non-dischargeable tuition debt, he was determined to do it his way and to hang his shingle as a solo.
Because I knew that his plans were as much about forced necessity as about foolish hubris, I bit my tongue, albeit with much difficulty. I didn’t offer up how hard it can be when you’re starting out and that too often, you don’t know what you don’t know. Or how when you run into your first difficult problem, it’ll seem as though you can’t “find your own ass with both hands and a flashlight.”
Not knowing what you don’t know.
This week, I thought of my breakfast with that brash young lawyer for a couple of reasons. First, there’s a blog post making the rounds authored by a young New York and New Jersey licensed lawyer. Her name is Rachel Rodgers and she describes her online law practice as “Business Lawyers for Generation Y Entrepreneurs.”
In her post, she posits that “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” She argues that “old dogs” need to learn new tricks and how they shouldn’t bark at young lawyer-trailblazers like herself. In particular, she chafes at criticisms from “more experienced” lawyers “because I practice law online or because I practice law in a state where I do not live or because I market my practice online.”
Instead of criticizing or ostracizing young lawyers or questioning their integrity by “using the word ‘ethics’ and all of its connotations,” Ms. Rodgers insists that more seasoned lawyers should instead “point out areas you think present an ethical hazard. . . .”
Developing “practice-ready” lawyers.
The second reason I thought of that young lawyer is because the same day that Ms. Rodgers posted her “angry” remarks, the ABA coincidentally adopted Resolution 10B, which “urges steps to assure that law schools, firms, CLE providers and others provide the knowledge, skills and values that are required of the successful modern lawyers; and urges legal education providers to implement curricular programs to develop practice-ready lawyers though enhanced clinical courses.” See “ABA Adopts Policy to Improve Legal Profession, Advance Justice.”
What’s clear from the confluence of these two unrelated events is that more needs to be done to make young lawyers “practice-ready.” I doubt, though, that the answer is more overpriced continuing legal education. Or in entrusting the solution to the very law schools that created the problem in the first place – – – of young lawyers running around in the dark trying to find all 4 cheeks with a broken flashlight.
38 years ago, Supreme Court Chief Justice Warren Burger said, “. . . in spite of all the bar examinations and better law schools, we are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians. The painful fact is that the courtrooms of America all too often have Piper Cub advocates trying to handle the controls of Boeing 747 litigation.” See “The Special Skills of Advocacy” – The Fordham Law Review. And also see, for example, “Why most continuing legal education sucks” and “Too Many Lawyers?” and “Bite me.” and “Law schools award a degree of “BS.”
The Model Rules of Professional Conduct: Preamble & Scope comprise 21 comprehensively substantive paragraphs. They broadly encompass much of what Ms. Rodgers confuses by interchangeably discussing “being ethical” with “basic morality” and “bar rules.” But then, as the Parisian lawyer/playwright Bernard-Joseph Saurin once said, “The law often permits what honor forbids.”
So I won’t wade into those deep waters here, especially since I’d have to navigate my jesuitical recollections and consult my worn-out copy of “First Philosophy” and St. Thomas Aquinas’ “Summa Theologica.” Perish the thought.
Suffice it to say, however, that ethics or more properly, the lawyer rules of professional conduct are more than what Ms. Rodgers oversimplifies as merely maintaining “the highest level of integrity” or of young lawyers “fully capable of being as ethical as their more experienced colleagues as they serve their clients.”
Longtime practitioners who are supposed to know better just as easily get themselves into ethical hot water – – – even after many years of practice. So it’s hardly criticism to stipulate that young lawyers can’t begin to conceive of the inadvertent ethical trouble that can sneak up on any lawyer. Take, for example, “exorbitant fees” or “conflicts” of interest or lawyers who fail to understand “When is a client a client?” or who don’t grasp the ethical hazards in “the intersection of online testimonials and ethics“ or that lapse into unsuspected “ethical breaches” as “Listserv lawyers” or solos who forget that “Size matters as long as you don’t lie about how big you are.”
And ironically enough for Ms. Rodgers, a licensed New Jersey lawyer, there’s the question posed by New Jersey’s state’s supreme court-appointed Advisory Committee on Professional Ethics, Committee on Attorney Advertising, “Are virtual law offices ethically impermissible?”
And along with that concern is the risk faced by Ms. Rodgers and any other lawyer with an online law practice. It is highlighted by the rule in New York, the other jurisdiction in which she is admitted, at NY DR 3-101(B), “A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.” On that score, see Matt Brown’s comments on her alleged “Unauthorized Practice” at Tempe Criminal Defense.
And finally, from her website, with a physical address in the west “Valley of the Sun” Arizona, it appears Ms. Rodgers may be a neighbor.
Hey, I do know a pretty good place for breakfast. . . .