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f/k/a archives . . . real opinions & real haiku

March 17, 2004

Justice O’Connor Sitting In (Sorta)

Filed under: pre-06-2006 — David Giacalone @ 11:28 pm

Who needs ethicalEsq, when we’ve got Supreme Court Justice Sandra Day O’Connor saying all the right things about the condition of lawyers and lawyering in America today?  Justice O’Connor’s address to an audience at U. Wyoming School of Law is covered in an article in today’s Casper, WY, Star-Tribune (“O’Connor: Lawyers ‘unhappy lot’,” 03-17-04; thanks to Howard for the pointer.).

Here are a few telling excerpts from the article:

wrong way neg  “Job dissatisfaction among lawyers is widespread, profound and growing worse. . . I think the decline of professionalism is partly responsible for this state of things,” O’Connor said.

 “Lawyers have to do more than know the law and the arts of practicing it,” the justice said. “A great lawyer always remembers the moral and social aspects of an attorney’s power and position.”

“It has been said that a nation’s laws are an expression of its highest ideals,” said O’Connor, “while the conduct of some lawyers in the United States has sometimes been an expression of its lowest.”

 “A win-at-all costs mentality sometimes prevails,” she said. “Many attorneys believe that zealously representing their client means pushing all the rules of ethics and decency to the limit.”

Now, if we could just get the Justice to take over this weblog.   I wonder if she likes haiku?

The Hardest Part of the Watchdog Role

Filed under: pre-06-2006 — David Giacalone @ 5:58 pm

The most difficult thing about being an ethics gadfly-watchdog is not the feeling of futility, nor the enormity of the task.  For me, the hardest part about the ethicalEsq role is the knowledge that what I have to say will often offend perfectly decent men and women.  In fact, lawyers who are most atuned to practicing ethically may be the most offended.

you! . . me?


This recently happened after my discussion on March 4th of law firm branding.  In the post, I voiced concerns aboout applying the premium-brand technique to the provision of legal services, “no matter the decency and quality of a particular lawyer or firm using the marketing techniques.”   My analysis used statements by Matt Homann from his the [non]billable hour weblog as examples of the branding philosophy that concerns me.  Matt responded in a short and strong Comment:

Cheap shot, David. Get to know me better before calling my ethics into question.

Matt is correct to suggest that I do not know him very well.  [I had a long telephone call with him last year about promoting mediation, and I’ve been reading his weblog daily from the day it was launched a few months ago — and plugged it that first day on ethicalEsq.]   From what I do know, Matt appears to be exactly the kind of decent, conscientious lawyer we need more of, and the kind of ethically-atuned lawyer I especially dislike offending.

  • You can decide for yourself whether I took cheap shots at Matt.   Part of my position on marketing and branding by lawyers is that it concentrates on subjects that are rather superficial, and are thus quite amenable to spoofing

“question mark gray”  I do not believe that I have called Matt’s personal-professional ethics into question.   My readers will have to decide for themselves whether they think I have.  When writing a weblog, giving examples (with links, if possible) is very important.  Because Matt has an articulate forum at his weblog, and seems to be a man of integrity, using examples from his site is quite natural.  Also, there seems to be no way to advocate for bringing fiducial principles more fully into the lawyer-client relationship, or better informing the client on fee-related issues, or making lawyer services more affordable for the average consumer, without suggesting that the legal profession — and therefore individual lawyers — are falling short of what I believe should be the ethical duties or aspirations of the profession.  


However, saying a particular practice or business approach seems to have ethical pitfalls for lawyers or negative results for clients is not, in my mind, the same as questioning an individual lawyer’s ethics.  I cannot know his or her intentions, nor how each client is treated by the lawyer. 

  • For example, it’s been ten weeks since I first raised questions about the practice of “value billing” by lawyers.  I raised it in reaction to Matt Homann’s praise of value billing.  And, I have literally checked his site every day since then to see if Matt has more fully explained his approach to value billing.  Since I agree with him that hourly billing has many problems, I would love to find an approach to value billing that is fair to both lawyer and client.  I hope Matt will soon unveil a roadmap to achieving that goal.

I apologize if I have offended Matt Homann, or any lawyers who in good faith attempt to live up to their ethical duties.  It’s quite easy to tell when I believe particular conduct is straight out unethical — I say it.   However, I have no investigatory powers or magic ways to learn about any one lawyer’s behavior.   When I raise general concerns over particular types of conduct, only the individual lawyer knows if my concerns are applicable to his practice — or whether my concerns are valid ones that need full consideration.


boxer gray  Pulling my punches because I like, admire, or enjoy a particular attorney is not, in my view, an appropriate way to run this weblog.  Being an ethics watchdog is not fun — especially for someone who genuinely likes people and likes to please them.  If someone else is out there ably doing the legal watchdog role, or the profession already does a great job policing itself, please let me know, so ethicalEsq can retire and let haikuEsq run this website (perhaps with some help from the cuddly skepticalEsq). 

Abetting Deception

Filed under: pre-06-2006 — David Giacalone @ 11:46 am

As if there weren’t enough deception in the world, Inter Alia  has uncovered software that allows cell phone callers to “add a background sound to any incoming or outgoing call, giving the impression that you really are in the environment where the background sound is normally heard.”   This tawdry product uses the catchphrase “hide behind sound, make it your alibi.”  Their sales pitch says:

lawyer cellphone flip  You can pretend you have another phone call, or are in a traffic jam, at the dentist, in the park, on the street, caught in a thunderstorm, near heavy machinery or at a circus parade.  In fact, “The possibilities are endless!  You can even use your own prerecorded sounds or sounds downloaded from the Internet.”

hammock . .

I can already imagine cell phones equipped with the sound of church organs, or a crying baby, and can’t wait to hear background sounds that conjure up the modern workplace or library.

just say no You may have noticed that I haven’t mentioned the product, nor linked to it.  I have no intention to help my readers find it.  What I would like to do, however, is to remind lawyers of their duty to avoid conduct involving dishonesty, fraud, deceit or misrepresentation. (Model Rule 8.4DR 1-102)   In my opinion, the use of such “background falsifiers” in a professional context — e.g., to deceive a court, client or opposing counsel — should be grounds for discipline.

In a world where honesty and integrity is valued less and less — and where many lawyers (as well as politiicans, spouses and teenagers) engage in misleading word parsing and seem to be proud of it — we need to just say no to technology that makes deception easier than ever to accomplish.  And, sadly, we need to be on guard against falling victim to such deception.

  • Update (03-18-04):  (sigh) Nancy of The Stark County Law Library Blawg says that Inter Alia’s “Tom Mighell found a real gem!”  To paraphrase the recent great Parsedent of the USA, “I did not have phone sex with that Librarian.  I was at the dentist at the time.”

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