{"id":4413,"date":"2006-03-04T21:10:28","date_gmt":"2006-03-05T01:10:28","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2006\/03\/04\/trust-germs-depression-and-ot"},"modified":"2011-08-05T14:54:07","modified_gmt":"2011-08-05T18:54:07","slug":"trust-germs-depression-and-other-lawyerly-issues","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2006\/03\/04\/trust-germs-depression-and-other-lawyerly-issues\/","title":{"rendered":"trust, germs, depression, and other lawyerly issues"},"content":{"rendered":"

<\/a><\/p>\n

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<\/div>\n

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There are a number of stories and ideas that I\u00a0want to discuss<\/span><\/div>\n
here, <\/span>before they become stale or misplaced. <\/span><\/div>\n
<\/div>\n
“fiveDollarBill”<\/span><\/div>\n
<\/div>\n
\"tiny Making Economists Behave<\/em>: How often have you been annoyed or <\/span><\/span><\/div>\n
bemused by economic purists, who\u00a0praise or pan a\u00a0proposed idea <\/span><\/div>\n
based on whether it fits their model of economic logic, no matter what <\/span><\/div>\n
appears to be happening in real life (e.g.<\/em>, our <\/span>trivializing economics<\/span><\/a>). <\/span><\/div>\n
Well, the brand new edition of Harvard Magazine<\/em> has some ammunition <\/span><\/div>\n
(or solace) for those of us who prefer to deal with the real world and real <\/span><\/div>\n
people, instead of homo economis<\/em>. <\/span><\/div>\n
<\/div>\n
In “The Marketplace of Perceptions<\/a>” Behavioral economics explains why <\/span><\/div>\n
we procrastinate, buy, borrow, and grab chocolate on the spur of the <\/span><\/div>\n
moment,” (Harvard Magazine<\/em>, by Craig Lambert,\u00a0March-April 2006), we <\/span><\/div>\n
get a brief history of the rise of behavioral economics and its arguments <\/span><\/div>\n
against Economic Man — the human actor who “makes logical, rational, <\/span><\/div>\n
self-interested decisions that weigh costs against benefits and maximize <\/span><\/div>\n
value and profit to himself.,” and who simply does not exist outside classi-<\/span><\/div>\n
cal <\/span>economic theory. <\/span><\/div>\n
<\/div>\n
\"honest<\/span><\/div>\n
<\/div>\n
The article explains that human being\u00a0are in actuality quite vulnerable <\/span><\/div>\n
to <\/span>how the decision-maker describes the choices to himself\u00a0and, therefore, <\/span><\/div>\n
to how\u00a0they are<\/span> framed by\u00a0the presenter.\u00a0 Noting that “persuasion is not edu-<\/span><\/div>\n
cation,” it asks what the framing concept means in the consumer <\/span>marketplace <\/span><\/div>\n
and in politics.\u00a0 It ends with the hope that “The models of behavioral econ-<\/span><\/div>\n
omics could help design a society with more compassion for creatures <\/span><\/div>\n
whose strengths and weaknesses evolved in much simpler conditions.”<\/span><\/div>\n
\n
“tinyredcheck” I found the Sidebar Games of Trust and Betrayal<\/span><\/em><\/a> especially <\/span><\/div>\n
interesting.\u00a0 In it, associate professor of public policy Iris Bohnet, <\/span><\/div>\n
of the Kennedy School of Government, explains that humans are <\/span><\/div>\n
not merely risk averse, they are trust averse<\/em> — and, therefore, very <\/span><\/div>\n
vulnerable to betrayal<\/em>.\u00a0 Because of this,\u00a0people tend to be\u00a0more <\/span><\/div>\n
willing to take a risk when the agent of uncertainty is nature <\/em>than <\/span><\/div>\n
when the agent is another person.<\/em> Feeling betrayed is a deeper <\/span><\/div>\n
hurt than suffering an economic loss. <\/span><\/div>\n
\"wolf<\/span><\/div>\n
<\/div>\n
The piece left me wondering if this fear of trusting and <\/span>betrayal <\/span><\/div>\n
might help explain why so many nonlawyers have such neg<\/span>ative <\/span><\/div>\n
feelings about lawyers.\u00a0 When you loudly proclaim yourself to be a <\/span><\/div>\n
trusted <\/span>agent and protector, your failure to meet expectations and <\/span><\/div>\n
keep <\/span>promises becomes a\u00a0matter of personal betrayal, not merely<\/span><\/div>\n
an <\/span>incidence of\u00a0a customer dissatisfaction.<\/span> <\/span><\/div>\n<\/blockquote>\n
<\/div>\n
\"spiltBucketG\" <\/span><\/div>\n
<\/span><\/div>\n


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I first learned about the Clorox Co. study comparing professions to <\/span><\/span><\/div>\n


\n<\/span><\/p>\n

determine the “germiest jobs” from BenefitsCounsel<\/a><\/em>.\u00a0\u00a0 It has been <\/span><\/span><\/div>\n


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duly noted elsewhere.\u00a0 Although no one could be surprised that <\/span><\/span><\/div>\n


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teachers have the germiest workplaces, many were surprised <\/span><\/span><\/div>\n


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that Accountants were the next germiest, but lawyers were the <\/span><\/span><\/div>\n


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least germy out of the ten jobs studied.\u00a0 I want to raise two points:<\/span><\/span><\/div>\n


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– First, why would it be that the “desks and pens of lawyers <\/span><\/span><\/div>\n


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had the lowest levels of germs”?\u00a0 Assuming that germs come <\/span><\/span><\/div>\n


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from handling things, contact with humans, and food, can we <\/span><\/span><\/div>\n


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conclude that: lawyers don’t use their pens much (or keep more <\/span><\/span><\/div>\n


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than they need on their desk)?\u00a0 that they don’t often touch <\/span><\/span><\/div>\n


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or interact with other humans?\u00a0 that they eat at their desks a <\/span><\/span><\/div>\n


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lot less than other professionals?<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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– Second, I went to the Clorox press page for the study and <\/span><\/span><\/div>\n


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found only this <\/span>dyspeptic disclaimer<\/span><\/a>: <\/strong>“Disclaimer<\/strong> The inf-<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

ormation contained in this document reflected management’s <\/span><\/span><\/div>\n


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estimates, assumptions and projections when it was published. <\/span><\/span><\/div>\n


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However, Clorox has not updated it since then and makes no <\/span><\/span><\/div>\n


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representation, express or implied, that the information is still <\/span><\/span><\/div>\n


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current or complete. The company is under no obligation to up-<\/span><\/span><\/div>\n


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date any part of this document.”\u00a0 That sure makes me feel <\/span><\/span><\/div>\n


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warm and fuzzy as a consumer.\u00a0\u00a0Even more, it makes me so <\/span><\/span><\/div>\n


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happy that I never had to think about or write such drivel as <\/span><\/span><\/div>\n


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part of my law practice.<\/span><\/span><\/div>\n


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<\/span><\/div>\n<\/blockquote>\n


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\"jailbird<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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David Tarvin at <\/span>Omaha Law<\/span><\/em><\/a> and Stan Sipple at <\/span>Huskerblawgs<\/span><\/em><\/a> raised some <\/span><\/span><\/div>\n


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good questions last month, after 56-year-old lawyer Attorney <\/span>Tom Gleason<\/span><\/a> <\/span><\/span><\/div>\n


\n<\/span><\/p>\n

was charged with stealing as much as <\/span>$60,000 from clients<\/span><\/a> (ketvNews, Feb. <\/span><\/span><\/div>\n


\n<\/span><\/p>\n

2, 2006).\u00a0 Gleason’s lawyer\u00a0has stated\u00a0that his client suffers from psychiatric <\/span><\/span><\/div>\n


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problems, including acute depression and will voluntarily surrender his license. <\/span><\/span><\/div>\n


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<\/span><\/div>\n


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What makes the case\u00a0more than a typical lawyer-thief matter is the fact that <\/span><\/span><\/div>\n


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Gleason\u00a0— contrary to the Nebraska Supreme Court’s policy of automatic dis-<\/span><\/span><\/div>\n


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barment over misappropriated funds — had\u00a0been merely suspended\u00a0from practice<\/span><\/span><\/div>\n


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back in 1995, when\u00a0he was also charged with misappropriating client funds.\u00a0 The <\/span><\/span><\/div>\n


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Court found special mitigating factors, because Gleason\u00a0was suffering from depres-<\/span><\/span><\/div>\n


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sion, had sought treatment prior to having charges brought against him, was coop-<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

erating fully, and was deemed to be unlikely to repeat his\u00a0unethical behavior.<\/span><\/span><\/div>\n


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\"tiny Tarvin says this will now make it harder for other lawyers to show mitigating <\/span><\/span><\/div>\n


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circumstances\u00a0in disciplinary hearings.\u00a0 Sipple says the case shows the <\/span><\/span><\/div>\n


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Court can’t\u00a0adequately regulate lawyers and \u00a0“It’s time an outside state <\/span><\/span><\/div>\n


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agency starts disciplining attorneys, one subject to the greater priority the <\/span><\/span><\/div>\n


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Courts should have of protecting the public” [rather than protecting the <\/span><\/span><\/div>\n


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image of lawyers].<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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\"HouseCards\"<\/span><\/div>\n<\/blockquote>\n


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Of course, one case of recidivism does not prove self-regulation doesn’t work. <\/span><\/span><\/span><\/span><\/div>\n


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None<\/span><\/span>theless, what we said<\/a> three years ago is still true (if you add three years):<\/span><\/span><\/span><\/span><\/div>\n


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Thirty-three years after a blue ribbon panel of the American Bar <\/span><\/span><\/span><\/span><\/div>\n


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Association declared the lawyer discipline system to be in a <\/span><\/span><\/span><\/span><\/div>\n


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“scandalous situation,” and over a decade after a follow-up ABA <\/span><\/span><\/span><\/span><\/div>\n


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r<\/span><\/span>eport in 1992 found that the system was still “too slow, too secret, <\/span><\/span><\/span><\/span><\/div>\n


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too soft, and too self-regulated” there is very little improvement. <\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n


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ethicalEsq<\/em> has consistently <\/span>supported<\/span><\/a> establishing the reforms urged by the<\/span><\/span><\/span><\/span><\/div>\n


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group <\/span>HALT<\/span><\/a>, including “Replac[ing] the failed system of self-regulation<\/em> — <\/span><\/span><\/span><\/span><\/div>\n


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lawyers policing lawyers — with disciplinary panels on which non-lawyers have <\/span><\/span><\/span><\/span><\/div>\n


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a majority voice.”\u00a0 Or, as we discussed <\/span>here<\/span><\/a>, following the new structure in the<\/span><\/span><\/span><\/span><\/div>\n


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UK might be more effective.\u00a0\u00a0 It entails “the\u00a0establishment of a new Commis-<\/span><\/span><\/span><\/span><\/div>\n


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sioner for legal services complaints, stripping the Law Society of England and <\/span><\/span><\/span><\/span><\/div>\n


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Wales of its ancient right to regulate the profession.”<\/span><\/span><\/span><\/span><\/div>\n


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“tinyredcheck” HALT issued <\/span>Lawyer Discipline Report Cards<\/span><\/a> to each <\/span><\/span><\/span><\/span><\/div>\n


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state in 2002.\u00a0 Nebraska received a mediocre C-minus, ranking <\/span><\/span><\/span><\/span><\/div>\n


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it in the 28th spot.\u00a0 Nebraka’s system<\/a> got a D+ for Adequacy of<\/span><\/span><\/span><\/span><\/div>\n


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Discipline Imposed. <\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n


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<\/span><\/span><\/span> <\/span><\/div>\n


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\"less<\/span><\/span><\/span><\/span><\/div>\n


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<\/span><\/span><\/span> <\/span><\/div>\n


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When mitigating circumstances can justify (even more than the usual) leniency <\/span><\/span><\/span><\/span><\/div>\n


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is a difficult question.\u00a0 As our prior post, Mitigate This?<\/span><\/a>,\u00a0states, the policy<\/a> adop-<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/p>\n

ted in the District of Columbia seems about right. — “issues of disability and in-<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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capacity . . . can significantly affect the choice of an appropriate disciplinary <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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sanction”,\u00a0with proof of rehabilitation being very important.\u00a0 However, if the lawyer <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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fails to establish that the disability is substan<\/em><\/span><\/span><\/span><\/span>tially related<\/em> to the misconduct, the <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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lack of a “but for” nexus to the misconduct <\/span><\/span><\/span><\/span>makes the disability irrelevant.\u00a0[see <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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In re Lopes<\/em>, 770 A.2d 561, 2001]<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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\"tiny It is difficult for me to see how depression can\u00a0be said to <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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mitigate stealing from a client. The effects of depression, and <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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side effects from medication, can certainly lead to<\/span><\/span><\/span><\/span> missed dead-<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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lines and similar neglect of clients.\u00a0 But, depression does not cause <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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dishonesty and thievery, even if it does lead to lower income and <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n


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thus a greater temptation to misappopriate funds. [see Lopes<\/em>, supra<\/em>]<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n


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[thanks to Walter Olson<\/span><\/a> for telling me about the Nebraska story]<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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\"graph<\/span><\/div>\n


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<\/span><\/div>\n


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With the economy improving for college graduates, fewer <\/a><\/span>people are <\/a><\/span><\/span><\/div>\n


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applying to law schools<\/a>. (Columbia Daily Spectator<\/span><\/em>, March 1, 2006; <\/span><\/span><\/div>\n


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via <\/span>jd2b<\/span><\/a>)\u00a0 I believe our nation will be better-served if more of its best-<\/span><\/span><\/div>\n


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and-brightest seek careers outside the legal profession.\u00a0 Elite minds <\/span><\/span><\/div>\n


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are not needed to perform the vast majority of legal services. Although <\/span><\/span><\/div>\n


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there may be many reasons for the drop in law school applications<\/span><\/span><\/div>\n


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(4.6 percent last year and 9.5 percent this year), I like the one given <\/span><\/span><\/div>\n


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by Laura Rosner, Columbia College ’06.\u00a0 According to the Spectator:<\/span><\/span><\/span><\/div>\n


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“She said that she never wanted to practice law and realized <\/span><\/span><\/span><\/div>\n


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that her interest lay more in political economy and government. <\/span><\/span><\/span><\/div>\n


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Additionally, she said she was influenced by a group interview <\/span><\/span><\/span><\/div>\n


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session she attended for Georgetown Law School. <\/span><\/span><\/span><\/div>\n


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<\/span><\/div>\n


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” ‘Seeing the type of people there, these people are really ob-<\/span><\/span><\/span><\/div>\n


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noxious, I’m not enjoying this at all, and if this is what the core <\/span><\/span><\/span><\/div>\n


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classes of law school are going to be like … then forget it, this <\/span><\/span><\/span><\/div>\n


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is really not what I want,’ Rosner said.”<\/span><\/span><\/span><\/div>\n<\/blockquote>\n


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<\/span><\/div>\n<\/div>\n


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<\/span><\/div>\n


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“scrabbleE”<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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\"tiny Finally, I wish the <\/span>folks<\/span><\/a> at Blawgr<\/span><\/a><\/em> well with their new lawyer forum. <\/span><\/span><\/div>\n


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And,\u00a0I respect their decision\u00a0to keep the “blawg v. blog” debate off of <\/span><\/span><\/div>\n


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their website.\u00a0 However, I must say, here at my<\/em> website, that the de-<\/span><\/span><\/div>\n


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cision to spell their name without the “e” in the\u00a0“er” suffix — no matter <\/span><\/span><\/div>\n


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how\u00a0humorous or ironic their intent —\u00a0looks like a sad attempt to be <\/span><\/span><\/div>\n


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hip and timely.\u00a0 Instead, it will only result in a site that dates itself as <\/span><\/span><\/div>\n


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born in the\u00a0e-less malaise of\u00a0late 2005 and early 2006.\u00a0 (see our prior <\/span><\/span><\/div>\n


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post bummr: where did all those e’s go?<\/span><\/a>)<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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p.s.<\/span><\/strong><\/em> Yesterday, someone in Charleston, West Virginia,\u00a0Googled <\/span><\/span><\/div>\n


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billionaire plaintiff’s attorney Evan Schaeffer<\/em>>\u00a0and <\/span>ended up at <\/span><\/span><\/div>\n


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this weblog.\u00a0 Last August, I referred<\/span><\/a> to <\/span>Evan<\/span><\/a> as<\/span> a “Prospective (and
\n<\/span><\/span><\/p>\n
contingent) Vioxx billionaire plaintiff’s lawyer.”\u00a0 My apologies to any-<\/span><\/span><\/span><\/span><\/div>\n


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one whose expectations were raised recklessly. Of course, should <\/span><\/span><\/span><\/span><\/div>\n


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my optimism bring Evan some successful business opportunities, <\/span><\/span><\/div>\n


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I’ll expect him to remember his Schenectady friend in some appro-<\/span><\/span><\/div>\n


\n<\/span><\/span><\/p>\n

priate manner. <\/span><\/span><\/div>\n


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<\/span><\/div>\n<\/div>\n

<\/span><\/span><\/span><\/span><\/div>\n


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“lipsG”\u00a0\u00a0 Randy Brooks<\/a> never forgets his e’s, p’s or q’s,\u00a0and <\/span><\/span><\/div>\n


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always <\/span>writes with diligence and zeal.\u00a0 Here are two very <\/span><\/span><\/div>\n


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recent <\/span>poems <\/span>and two from his 1999 book School’s Out<\/em>:<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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tongue out<\/span><\/span><\/div>\n


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the boy guides a new airplane<\/span><\/span><\/div>\n


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round and round <\/span><\/span><\/div>\n<\/blockquote>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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I nibble <\/span><\/span><\/div>\n


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behind her ear. . .<\/span><\/span><\/div>\n


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she stirs the batter<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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all tongue<\/span><\/span><\/div>\n


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the clam in the fire’s<\/span><\/span><\/div>\n


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hiss<\/span><\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n


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<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n


\n<\/span><\/p>\n

sisters bent over<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

the heating vent<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

adult talk below<\/span><\/span><\/div>\n<\/blockquote>\n


\n<\/span><\/p>\n

<\/span><\/div>\n


\n<\/span><\/p>\n

Randy Brooks<\/strong><\/span><\/a> <\/em> <\/span><\/span><\/span><\/span><\/div>\n


\n<\/span><\/p>\n

“tongue out” – <\/span>The Heron’s Nest<\/span><\/em><\/a> (VIII: 1, <\/span>March 2006<\/span><\/a>)<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

“I nibble” – <\/span>frogpond<\/span><\/em><\/a> (XXIX: 1, Winter 2006)<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

“all tongue”\u00a0 & “sisters bent over” – <\/span>School’s Out<\/em><\/span><\/a> (1999) <\/span><\/span><\/span><\/div>\n


\n<\/span><\/p>\n

<\/span><\/div>\n


\n<\/span><\/p>\n

\"wolf<\/span><\/span><\/div>\n


\n<\/span><\/p>\n

<\/span><\/div>\n<\/blockquote>\n

<\/span><\/span><\/a><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

There are a number of stories and ideas that I\u00a0want to discuss here, before they become stale or misplaced. “fiveDollarBill” Making Economists Behave: How often have you been annoyed or bemused by economic purists, who\u00a0praise or pan a\u00a0proposed idea based on whether it fits their model of economic logic, no matter what appears to be […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926],"tags":[],"class_list":["post-4413","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-19b","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4413","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4413"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4413\/revisions"}],"predecessor-version":[{"id":12750,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4413\/revisions\/12750"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4413"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4413"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4413"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}