Legal Ethics Forum

Empathy and clothing

After my post on the NYT column on lawyers’ dress, there was an interesting discussion of the “minefield” it presents.  Since that time, there’s also been an interesting discussion of the value of empathy on the site, which got me to thinking about the point I was trying to make in the clothes comments (which is narrower than my original post) but not making that well.  I think it has some broader significance and so I'm posting on it one more time.

To start my point, here’s 3 quotes from the original NYT article on clothes:     

“she said one lawyer had shown up for a jury trial in a velour outfit that looked     for all the world as if she was “on her way home from the gym.””

“he had seen participants wearing “skirts so short that there’s no way they can sit down, and blouses so short there’s no way the judges wouldn’t look.””

“titillating attire was “a huge problem” and a distraction in the courtroom and that “you don’t dress in court as if it’s Saturday night and you’re going out to a party.” In the spirit of sexual equity, Judge Goldgar added that he was also unhappy with lawyers who sported loud ties, some with designs like smiley faces.”

When you read these quotes I think there are two points inherent in each speaker’s comments.  First, the lawyer in question appears to have clearly and significantly violated (to borrow Patrick’s terminology) social sartorial norms.  Second, the lawyer in question is deserving of some sanction or consequence for that choice, at the very least the subtle, or not so subtle, social condemnation of peers.  The former appears from the examples, which are set up to make the violations appear obvious – who, after all, would think it a good idea to work out and then go to court, or look like she had?  The second appears from the comments themselves – they are that form of subtle or not so subtle social pressure at work.

In a convocation address in 2005 at Kenyon College, which has recently been in the news because being published in a book, David Foster Wallace talked about a particular sort of empathy, although describing it as a matter of living a thoughtful life. And in doing so he talks about how hard empathy – which he describes largely as a matter of being able to overcome the innate human tendency to be the star of our own stories – is to do. 

Mercer Symposium on Ethics in Digital Issues Posted on Line

Monroe Freedman, Andy Perlman, and a slew of others participated at Mercer Law School's symposium on ethical issues in the digital age, and the transcript is available on line, here.  I urge you to read especially Professor Freedman's opening remarks, "Whatever happened to the search for the truth?"

The Current State of PR Courses at American Law Schools

I've been working with Professor Laurel Terry (Penn St.), the current chair of the AALS PR section, and Professor Margaret Raymond (Iowa), one the section's executive committee members, to learn more about the inner workings of a typical PR class in American law schools. We developed this survey to give us some answers.

If you teach PR, we invite you to complete the survey, which shouldn't take more than five minutes.  We plan to post the results on the AALS PR Section's website in a few weeks.  Directions for accessing the site, along with a lot of other good PR section news, can be found here.  (The PR section's site itself is here.)  If you are not a member of the AALS and would like to know the results of the survey, please contact me in July here.

The Future of BigLaw Economics

Here is a link to a forthcoming Suffolk Law Review article by Northwestern Professor John P. Heinz, the widely cited legal profession scholar.  His entry in the Suffolk Law Review is entitled "When Law Firms Fail," and it has an abstract that is as compelling as its title:

Large firms had, until last year, been advised to grow, enter new markets, and concentrate on "high value" work, especially in structured finance.  Now, those firms have terminated thousands of lawyers and other employees, and some well-established firms have gone out of business.  The firms that expanded most aggressively are now in the most trouble.  Those firms competed for high stakes cases, for which they could charge premium fees, and the resulting "winner-take-all" market incentivized risky strategies.  The firms hired large numbers of associates to exploit the human capital of the partners, but when the credit bubble burst in 2008 and transactional work declined sharply, corporate lawyers became underemployed and associates were then the most readily terminated.  As assets held by the firms declined and lawyers left, voluntarily or involuntarily, banks that had extended credit to the firms began to demand repayment, forcing some firms into insolvency.  Corporate inside counsel sought to take advantage of the buyers' market by pressuring the law firms to restructure billing practices, especially advocating or demanding fixed fees and reduced rates for the time of junior associates.  These pressures, together with other developments in the international market for corporate legal services, promise fundamental change in the business practices of the firms.

On a related note, legal process outsourcing guru Mark Ross is discussing another economic trend: the increasing use of third party litigation funding.  Mark offers his thoughts as to how the trend will accelerate the move to LPOs and alter the economics of litigation.

It's hard to know what the future holds for the legal industry, but I suspect that the next ten years will produce greater change than the last decade. That's a pretty easy prediction to make, given some of the shakeout currently underway.  The challenge, of course, is predicting what those changes will look like, and Professor Heinz and Mr. Ross offer some interesting food for thought. 

US Supremes overrule Michigan v. Jackson

In a 5-4 decision, in Montejo v. Louisiana (oral argument here), the US Supremes (urged on by the Obama administration, according to the NYT), over-ruled MIchigan v. Jackson.  Articles here and here.  Key graf:

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present

On Empathy in Judging

    President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law.  Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

    In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied.  “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says.  “It may also lead to a veritably religious veneration for the rules and their imagined author.  The sovereign and his command may be deified.”  When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law.  The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

    Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:           
    "To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence.  The question for the judge is:  'Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?'"

In short, a judicial judgment should not be simply, in Carol Gilligan’s phrase, “a math problem with humans.”

    Similarly, former N.Y. Chief Judge Judith Kaye has observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them....  [A] far greater danger exists that they do not.”

What not to wear?

The NYT has a story about lawyer fashion faux pas and the possible effect on a client's ability to obtain justice (here).  I have recently blogged about the Law Society of Alberta's requirement that students taking the bar admission course wear "business attire" at the risk of having a note placed in their law society file (something with potential consequences in later disciplinary matters) (here).  What's up with this?   I do think one would be foolish not to recognize that clothes may have an impact on different things - on a client's comfort level, on how authoritative one appears to a judge etc. etc.  And I don't have an issue with judges pointing that out.  But surely, surely, surely part of the excellence to which lawyers strive is not to judge people by appearances, to not feel a need to do something because it is viewed as conventionally good or desirable.  I am reminded of the discussion of democratic lawyering a few posts ago.  The best tradition of the bar in most countries includes pushing against authority in some way or another.  If that means wearing clothes that don't fit with mainstream conventions then good.  And let's not stifle that by directing people on clothes, and pushing lawyers towards conventionality.

Oh, and as I said to the local Cdn. newspaper that interviewed me about this, my own sartorial aims are "no visible dirt".

Interesting Piece on Firm Restrictions on Twitter/Face book

The article, and links to other articles, is here. 

In the academic area, I personally love facebook and the relationship building that it can achieve, but some people find it crosses student-professor boundary.

Prosecutor turned defense counsel turned (alleged) conspirator to murder witnesses

NYT has the story and a profile of Paul Bergin.  

Moral sensitivity - not quite...

The law governing lawyers and public officials is relatively extensive, but I've always thought that even when understood as a matter of legal compliance, keeping out of ethical difficulties does require some moral sensitivity, an ability to feel when something is not quite right and merits further investigation before acting.

The spectacle of Canada's former Prime Minister, the lawyer Brian Mulroney, testifying before a public inquiry the last six days confirms that idea (here) .  After he left office Mr. Mulroney met on 3 occasions with Karlheinz Schreiber, a German "businessman" who has subsequently been charged with numerous criminal offences in Germany related to bribery (!), but now spends his time primarily resisting extradition from Canada.  On each occasion Mr. Mulroney received $75,000 in cash in an envelope which he proceeded to put in a safety deposit box and/or safe, and did not pay tax on until the payments were going to become public knowledge, at which point he entered into a settlement with the Cdn. equivalent of the IRS.  In the course of his testimony Mr. Mulroney attempted to emphasize the legality of his conduct.

Hmmmm.  This claim seems dubious at best, on tax grounds alone.  And even if it turns out to be correct, surely even the dimmest PR student would be able to spot the issue that taking cash payments in an envelope, in a shady meeting a a hotel, for services not fully defined, is not the best plan, ethically speaking.

As an aside, a point of local pride is that the former Premier of Alberta, Peter Lougheed, also a lawyer, forbade his cabinet from meeting with Mr. Schreiber.  Much better moral sensitivity, or personal judgment, I think.