Let's Stop Picking On David

Okay, I'll admit I got bristly and oversimplified David Giacalone's innocent enough query whether financial irresponsibility among lawyers should concern the profession. See comments to this post, and see David's discussion and pleas for help on his own site. Of course it should. It's not cool for lawyers to steal money from clients. The lawyers who will do that are the lawyers who cross lines they shouldn't cross with money, and there may well be indicators for this pattern of behavior. Bankruptcy could be one. So, yes, David, it's relevant.

BUT.

I got bristly quickly for two reasons. One is I'm a bankruptcy lawyer and as such see how many good and honest folks file bankruptcy. So it seems only marginally relevant, at best. And I see the stigma and the shame that people bring into my office and don't like to perpetuate that at all. Which doesn't mean that I or my clients are proud or feel entitled to break their contracts. Nobody I've met does that lightly. But sometimes life makes that the best choice you've got. And in those circumstances, thank goodness for bankruptcy. I would hate to see bankruptcy used as a PRESUMPTION of irresponsibility or unethicalness. It would be a false positive in way too many cases. But I think David and I agree about this, and to the extent my earlier comments suggested that he held a different position I apologize.

Anyway. The second reason is bigger, and it's what made me react so viscerally to David question. I tend to react pretty strongly against people who sit in judgment of others and determine whether or not they are "worthy enough" for something or other. I find that that is rarely done with sensitivity or depth. I find that the people who gravitate to that kind of culling and screening of others are self-selecting, and often have a narrow and self-serving idea of what it means to be "worthy". I find that lawyers are already more heirarchical than other professions I know and I don't want to provide more tools and more barriers to keeping out people who have worked hard and want to enter the profession. So I object to the whole part of the profession that is about making it harder for people to become lawyers. A post on the ridiculousness of the bar exam is coming one of these days. And in Maine at least the background checking and the recommending and the mandatory hassling of applicants by the Board of Bar Overseers seems far far removed from what is admittedly a good goal (protection of clients).

I guess not everyone who wants to be a lawyer should be allowed to be a lawyer. And I guess it's a worthwhile aspiration of the profession to do something to try to identify those individuals who might cause harm to innocent clients. But I must have FAR FAR FAR less faith than David does in the purity of the motives, not to mention the discernment and ability of the "guardians" who volunteer to sit in judgment of applicants and keep the riffraff out. I don't know how you can tell who the riffraff is ahead of time. And I see DANGER CRUELTY HYPOCRISY AND CONTINUED HOSTILITY TO PEOPLE WITH DIFFERENT BACKGROUNDS when I see people announcing that they've come up with some criteria for making such decisions about how to exclude others.

Now, to be clear, I don't see these things in David. Instead I see in him a deep concern about the dirtbags in our profession and protecting clients from getting swindled. The difference in focus reminds me of the natural shake-out I noticed 1L year -- some of our class were natural prosecutors, ready to sacrifice due process to nail the guys we knew were guilty. Others were defense attorneys, shrugging our shoulders and saying, I'm okay letting a guilty guy go free because I don't want to live in a world where the prosecutors and the police get to overlook the protections of the system. David is vehement in his desire to protect clients. I'm vehement in wanting our profession to eliminate its narrowmindedness and to eliminate the barriers facing people who want to get in and get ahead. There's a tension between those worldviews, even though both goals are noble.

Comments

[David Giacalone]

Thanks for calling a truce and explaining your position more fully, Sherry. As you suggest, we agree far more than we disagree. My TrackBack didn't work earlier today, when I proposed an approach we might both agree on back at ethicalEsq.

I'm trying to post on a different topic tonight (which has been nagging at me for days), but I'm easily distracted and would like to make a few points on your second reason for being a little touchy about the bankruptcy/admission question.

1) People who know me from my FTC days would tell you that I'm not a natural prosecutor-type, because I don't just want a winnable case and don't see the other side as purely evil -- I want to win cases that are based on laws/rules that are fair and actually serve the public interest (so, I labored to make per se rules make sense, and refused to apply them when the conduct appeared to actually be competitive). Also, if you want the rules broken to win your case, don't ask me to be your lawyer.

2) My pro-client position is based in large part on the belief that the legal profession should either live up to its slogan of putting the client's interests first or stop saying it and stop asking for protection from competition and regulation. I truly believe that lawyers are special -- we promise competence and diligence, and swear to put the client's interests above our own financial interests. If that pledge means nothing, we might as well go into politics.

3) I have no interest in expending my own limited energies to help clients who are out to cheat their lawyers or the legal system.

4) As you have surely noticed, I am very skeptical about the hierarchy of the legal profession and the bona fides of a good portion of its "leadership." But, if we aren't going to let everybody practice law who wants to do so (and we shouldn't, given its core relation of trust and the stamp of approval that the public thinks comes with admission), we need some standards and they have to be applied by human beings.

More and more, our society has shied away from making tough judgments, and the results have been ridiculous black-letter rules (e.g., no guns in school, including paper guns drawn by a 5-year-old) or no rules at all.

"I could see myself or my friends doing that and wouldn't want me/them to be penalized" is not a good enough reason for not having needed rules. Neither is a desire (often expressed by the young and those who have not been adults for long) not to have consequences for unacceptable conduct.

5) Maybe the morals cops are more apparent in Maine than in more populous areas, but I don't see much tough scrutiny anywhere I've looked. You might have a higher quotient of blue-bloods and puritans who hate having the riff-raff ruin the image of their clubby profession.

Finally, two personal thoughts: (a) I once told a significant other, when she jumped to conclusions about my motives and meaning: "It's very unlikely either that I think your position is totally without merit, or that my position is totally irrational, insensitive, or extreme. So, please give me the benefit of the doubt and ask for an explanation or clarification before you decide to unload on me."

(b) Please spell my last name correctly:Giacalone.

I'm happy that our "conversation" helped warm a frigid weekend, but I promise not to hog your web space so much in the future. I, too, am amazed that human being can have such low EQs, but invent wonderful things like heating systems that work almost all the time.