For Laypeople Reading this Blog

September 11, 2014 § 4 Comments

I get comments and even emails from non-lawyers asking legal advice and even questioning the actions of lawyers and judges in cases. Lately there have been plenty. There are several reasons why I don’t respond.

First, and most importantly, MCA 9-1-25 specifically prohibits judges from practicing law. Giving legal advice is the practice of law. Ergo, I can’t do it.

Second, even if I could give legal advice, I would not do it via this vehicle. No lawyer who is competent would give legal advice based on a person’s recitation of facts without asking questions to fill in the gaps, to rule out alternative scenarios, and to test the accuracy of the scenario.

Third, the law is a nuanced thing, with many subtleties. Often there are multiple approaches to take, each with its own risks and advantages. Those variations should be teased out in a thoughtful conversation between attorney and client where the exchange of information and feedback results in a concensus on how to proceed. You can’t do that on a blog.

This blog is designed for lawyers and judges in the hope that it will improve the practice of law in Mississippi’s chancery courts. Lawyers and judges who read this blog know that the information is a mere starting point for research in a given case. It points a direction and suggests an approach.

There is no legitimate substitute for competent legal advice when one is confronted with a legal problem. And, quite often, what appears to be a simple matter can be fraught with unapparent implications that only a lawyer can spell out.

Laypersons are always welcome to read this blog, for what it is worth, but it is not a substitute for the services of a lawyer.

 

WHAT IS THE FUTURE FOR LAWYERS?

May 17, 2013 § 4 Comments

If you haven’t noticed, the legal profession is at a pivot-point. The big firms have been downsizing for years, finding it more and more difficult to payroll armies of lawyers as damage caps and other litigation-discouraging measures have eroded the caseloads of both defense and plaintiffs’ firms. Corporate clients in a bad economy are relying more and more on in-house counsel and alternate dispute resolution as ways to cut legal costs.

Here in Mayberry, the everyday folk simply don’t have the money to pay big fees when a divorce or custody war looms. They look for cheaper ways, and the internet beckons with the alluring promise of bright success via fill-in-the-blank forms.

Against this backdrop, law school grads are finding more and more that there simply are no jobs. Those student loan repayments loom large as unanswered resumes and rejections pile up.

Richard Susskind, a UK lawyer who has studied the British and American legal systems, has been probing these and other developments to discern the future of the law and the legal profession as society moves inexorably deeper into the technological age. In his book, The End of Lawyers?, he raised the question whether lawyers had not become an anachronism, to be replaced by legal technicians handling routine legal matters, a handful of litigation specialists doing courtroom work, and platoons of document-analysis specialists, financial advisors, legal counselors, and others performing at greatly reduced cost the components of what lawyers do now for $300-$500 an hour. His point is that delivery of legal services will yield to the forces of economics and technology until it offers cheaper, more efficient ways to serve the public.

SusskindSusskind’s latest book, Tomorrow’s Lawyers: An Introduction to Your future, condenses all of the foregoing into a concise, quick read, readily accessible to any busy practitioner. The pocket-size book is only 164 pages of text, but it is crammed with provocative ideas. Susskind not only talks about the forces that are reshaping law and the practice, but also how they impact the courts and delivery of legal services.

This is a brilliant book. I commend it to all lawyers and judges, particularly those who will be involved in the legal system over the next 15-20 years. The forces of change that Susskind highlights will be either a sweeping tide of change or a sweeping tide that carries many away. We can ride it and adapt to it, or we can drown in it. We get to choose.

In my opinion, many of the ways we do business in our courts are straight from the nineteenth century. There have been some intrusions of technology, but for the most part Abe Lincoln and his contemporaries would likely find themselves right at home in our courts. We should not be afraid to examine the ways we plead, offer proof, take testimony and otherwise carry out due process in trials and hearings with a view toward streamlining the processes, making them less costly, and trimming months — if not years — off them.

I encourage you to read Mr. Susskind’s book and give this some thought. It’s your future.

 

PUBLIC PERCEPTION AND PROFESSIONAL RESPONSIBILITY

July 9, 2012 § 2 Comments

Philip Thomas has an interesting post about a poll conducted by PR Newswire for Common Good, a nonpartisan group interested in government reform. The poll results are here.

You can read the poll result summary for yourself, but it should come as no surprise that it found that most people distrust the civil litigation system, find it cumbersome, and think it takes too long to resolve disputes. They also feel that too many frivolous lawsuits are filed. They fear the financial burden of litigation. Their perception is negative.

As members of the legal profession, we need to recognize that for most citizens perception is reality when it comes to the courts and the law. In part that’s because the knowledge that most people have of the legal system is shaped by tv and movies that distort reality for entertainment value, and by media with an agenda, and by gossip, because they have no first-hand experience of their own. For those laypeople who have had first-hand experience, I would guess that most of them have come away with an unpleasant taste. We can quibble with their conclusions, but that does not make the negative general perception go away.

Former Colorado Supreme Court Justice Rebecca Love Kourlis proposes five measures in an article in Atlantic online that would go a long way to fixing the civil justice system. She would give judges more tools to manage and triage cases, remove the majority of divorce cases from the adversary system, limit and streamline discovery, adequately fund courts and train judges, and speed up proceedings.

I have long advocated for swifter resolution of chancery matters, and I try to push cases along, both contested domestic cases and probate matters. I already place an expiration date on temporary judgments, enter a scheduling order in every contested case, and require a pre-trial conference and order. I think chancery judges have tools available to move cases along, but I would be open to more measures, such as mandatory disclosures in divorce cases and more flexibility to dismiss unmeritorious cases and probate matters that have been left for dead. If we can improve the efficiency of the system, it should improve the public perception.

Lawyers and judges have an important role in educating the public about the legal system and how it operates, especially since the subject of Civics in our schools has been de-emphasized by being lumped under the heading of Social Studies, along with geography, health and personal hygiene, etiquette, and how to balance a checkbook. Randall T. Shepherd, former Chief Justice of the Indiana Supreme Court, penned an article you should read about the necessity for civic education, the role of legal professionals, and how some are going about it in other states. 

In his article, Judge Shepherd says that “Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government.” That may be true over the past 40 or so years, but I remember a time when lawyers were looked to by the community as a source of knowledge and wisdom about the law. It’s a role that has been eroded over time by media’s talking heads, politician-critics, and our own passivity.

People do not understand how the courts work, why they rule the way they do, what the law requires in given situations, and what is behind a particular outcome, and they assume the worst or rely on commentators who make their living by dramatizing and exagerrating things.

As a legal professional, you are in a position to uphold the integrity of the syetem. You should speak up when you hear people repeating misstatements about our legal system. You can do a lot of good for your profession and for the court system where you work by setting the record straight. It’s a function of your professionalism, as well as your citizenship.

DISMISSED FOR LACK OF EVIDENCE

April 12, 2012 § 12 Comments

Evidence is no longer a required course of study at either of the law schools in Mississippi.

That may be old news to you, but I heard of it for the first time only last week. You can click on either or both law school links over there on the right and check for yourself. You’ll have to do a lot of digging to find the info; I recommend you go straight to the school catalogs in .pdf format.

I am sure the academicians have a good reason for this development. I’m guessing – I haven’t “interviewed” any deans or anyone else – that it has something to do with the bar exam, and not law school itself, being what they consider the real certification of skills.

Still, when I think of subjects at the core of being a lawyer, evidence certainly ranks right up there in the top few. A good grasp of the law of evidence requires one to bring to bear the very analytical legal skills that distinguish the legal profession from other fields of endeavor.

Moreover, the law of evidence informs much of what a lawyer does in the everyday practice of law, regardless whether that lawyer ever personally sets foot in the court room. A lawyer’s advice about the drafting of a contract is shaped by the distinct possibility that it may have to be in evidence at trial some day. Advice to clients about how to make a proper paper trail and document activities is based on evidentiary considerations. When a client asks advice about what his or her liability might be if sued, the lawyer has to evaluate the evidence, taking into account what may or may not be admissible in evidence.

As I see it, law school has three primary functions: (1) to teach the law; (2) to teach how to find the law when one is not sure what the applicable law might be; (3) and to analyze the problem like a lawyer so as to bring (1) and (2) to bear.

Of the many areas of study that might be required, I nominate evidence as one that may be unparalleled in its ability to teach law students how to think like a lawyer. Now, I am not an academician. I am a mere trial court judge toiling away in an obscure corner of Mississippi, so my opinion, I am sure, carries little weight on this subject. But based on 33 years of practicing law and 5 years on the bench, I have to say from a purely nuts-and-bolts standpoint that a solid grasp of evidence would be in my top 3 of essential subjects to have if you expect to succeed as a lawyer (FYI, I nominate contracts, civil procedure and evidence).

And yet, by making evidence an elective, the subject has been assigned the same academic weight as other elective courses, which include Venture Capital, Law and Literature, and Legislation at MC; and Gaming Law, Bioethics, and Legal History of Slavery at OM. Not to say that any of those courses are not worthy of being included in a proper curriculum, but are they as essential to the core function of a lawyer as is Evidence?

It seems that the function of law schools has shifted from my era, when we were admitted to practice by diploma privilege after completing a rigorous, mostly required curriculum, to the current, when completion of law school is merely the gateway to admission to the bar exam, and it is up to the students to select (with a few exceptions) what he or she prefers to study.

In 1980, or thereabouts, Mississippi abolished “reading for the bar,” under which an aspiring lawyer would study the law on his or her own under the tutelage and supervision of a lawyer in good standing. After the prescribed period of study, with a certificate of the tutorial lawyer in hand, one applied to take the bar exam. Wisely, under that system, the experienced lawyer directed his tutee’s attention to the things that mattered, which included a hefty dose of Wigmore.

Now one must pay a law school – handsomely – for the same experience, sans the same dose of practicality.

I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.

But, you say, prospective lawyers still have to pass evidence on the bar exam. Yes, but I would be more comfortable knowing that the student who was certified by the law school as being ready to take the bar exam had actually studied and passed evidence courses rather than merely mastered enough of an outline to pass the bar exam.

In the UK there is a two-tiered system: solicitors, who sit in their offices, advise clients, draft wills and other papers, do property work; and barristers, who are certified to have the skills to do litigation.

Maybe we could adopt a similar dichotomy here. I propose that our two-tiered system would be divided along the lines of who has not studied evidence and who has. Those who have not, we could call “shopkeepers” or “legal retailers.” And those who have studied evidence we would call “Lawyers.”

WHAT SETS YOU APART?

November 29, 2011 § 3 Comments

Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”

His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”

Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.

But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.

Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.

My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.

Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.

What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?

THE LAWYER’S MISSION IN LIFE

July 13, 2011 § Leave a comment

The Mississippi Bar Association annual meeting commences today in faraway, sunny Florida.  I thought this would be a propitious time to look back more than a hundred years at the proceedings of the association in its earliest days.

On May 5-7, 1908, the Mississipi State Bar Association held its third annual meeting in Meridian.

Various papers were presented, among them “Railroads and the People,” Suggestions of Error, Legal and Otherwise,” “Reminiscences of a Few Mississippi Lawyers,” and “The Power of the Courts.”

The convention even adopted a resolution that, because their presence would “lend grace and dignity to its annual meeting and wisdom of its deliberations,” members in future were “invited to attend sessions accompanied by their wives, daughters, sisters and sweethearts as the condition may then exist.”  That language of that resolution sounds patronizing to us more than a century later, but we need to keep in mind that lawyers in those days were, if not exclusively male, almost exclusively male, and their language reflected not only that reality but also the more patriarchal usages of the day, which used the masculine gender to denote the general, as the text below shows.

Another of the papers delivered at that meeting was by Meridian’s own S. A. Witherspoon, who spoke on “The Lawyer’s Mission in Life.”  The language is perhaps too flowery for todays tastes, but the message is no less relevant and thoughtful now than it was 102 years ago.  It is too long to reproduce in its entirety, but here are some excerpts:

  • ” … if the exigencies of [the lawyer’s] professional duties do not lead him into the investigation of the truth and require the exercises of his powers in maintaining the cause of justice, and demand the aid of his influence in establishing the great law of love between man and man, then the lawyer’s life work is at war with his better nature, and deterioration instead of development must be his certain doom.”
  • “… in the solution of all political, social and religious problems that affect the happiness of humanity [lawyers] have been found in the front ranks, and the cause of freedom, justice and morality has found in them its most devoted and ablest advocates.”
  • “The strife, contention and never ending warfare of the lawyer’s life may conceal from the casual observer its logical relation and productive tendency toward the peace, goodwill and love among men, but it should be remembered that the legal battle which he constantly wages merely takes the place of violence and bloodshed of the barbarian, and that the lawyer in civilized life simply confines the fighting, which seems to be a necessity of humanity, within the ranks of his own profession, and this relieves his fellow men of the evils of human warfare.”
  • “But the prominent feature of the lawyer’s work is the problem of truth, and his greatest difficulty is measured by its laborious discovery.”
  • “And the light of his truth, streaming through all the walks of human life, as distinctly marks the lawyer’s mission as does the warmth and light that gives life and beauty to the flowers and defines the mission of the sunbeam.”
  • “The mission of the lawyer is not confined to the court room and does not end when the decree or judgment of the court is placed on the minutes, but it extends into all the affairs of men, and finds its last boundary at that point where his service is not needed for the betterment of humanity.”
  • “The professional duties of the lawyer develop in him a capacity for the ascertainment of truth, a power to explain and expound it to others, and the art and ability to advocate the cause of justice, and to win the triumph of right; and the possession of any power involves the duty of exercising it for the good of others.  He has no right to bury his talent, or to hide his candle under a bushel.  Whatever advantage and superiority he may enjoy over his fellow men is the result of his relation to society and the special privileges which it has granted him.  And, therefore, I say that in all the religious, moral, social, and industrial controversies that divide the people, the lawyer is obliged to take part, and to give them the benefit of whatever wisdom and virtue he may possess.”

Excerpted from “The Mississippi Bar’s Centennial: A Legacy of Service,” 2006 by the Mississippi Bar.

THERE ARE WORSE JOBS THAN BEING A LAWYER

January 14, 2011 § Leave a comment

CareerCast has rated 200 jobs for 2011, ranking them from best to worst.  You can read the complete ranking here, and their methodology is here.  The jobs are ranked and assigned an overall score using a combination of criteria, including salary, hiring outlook, stress, physical demands and work environment.

I’ve gone through the list and selected some jobs of interest to the legal profession, some directly law-related, and some purely for comparative purposes.  The number in parentheses before each job title is the job’s rank.  The number following each job title is the job’s stress factor, which I have included so that you can compare your profession’s to others.

The top three most desirable jobs are (1) Software Engineer 10.400, (2) Mathematician 12.780, and (3) Actuary 16.040.

The highest law-related job is (13) Paralegal 12.650.  Next comes Court Reporter at (31) 18.560. 

And another legal job does not show up until the 50’s, where Judge 21.390 pops up at (53). 

(82) Attorney 36.110 is the next and last job of the legal-judicial field. 

Some jobs rated above attorney are:

(10)  Dental Hygienist 12.070

(18)  Parole Officer 12.550

(32)  Chiropractor 13.580

(68) Clergy 21.26

Some jobs rated lower than Attorney are:

(83)  General Practitioner Physician 25.650

(92)  Psychiatrist 24.420

(94) Registered Nurse 30.140

(101)  Surgeon 16.32

(114) Senior Corporate Executive 47.4

(121) Commercial Airline Pilot 59.530

(140) Bartender 13.070

The worst three jobs are (198) Lumberjack 40.90, (199) Ironworker 31.270, and (200) Roustabout 26.430.

I did not find Chancery Clerk on the list.  Does that mean that that job is ranked lower than 200 (Roustabout)?

It was no surprise to me that the stress level for Attorney is as high as it is, even higher than a general practice physician.  But cleaning plaque from people’s gums and rooting around in their mouths is rated higher than any legal job?  Sheesh.

IT’S TIME FOR YOUR YEAR-END PROFESSIONALISM CHECK-UP

December 22, 2010 § 1 Comment

The Christmas lull, that blessedly quiet period in the few days before and after Christmas, is a perfect time to catch up on matters that you kept shoving to the back burner for the past few months.

Like reassessing your professionalism.  Where you are in your practice and where you want to go.  How you’re doing.  Your strong and weak points.  What can you do to do a better job?   

So set aside a few minutes and ponder your own professionalism.  Here are a few points to start from:

  • “I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi so long as I continue a citizen thereof.  So help me God.”  That’s the oath you took to practice law.  Ever stop to think why lawyers take an oath and folks in other lines of work do not?
  • I posted the Lawyer’s Creed and Aspirational Ideals here.  Re-read them and even keep a copy handy in the middle drawer of your desk.  Pull them out and read over them every now and again and assess how you’re measuring up.  You can find and print out or download them at the Mississippi Bar website
  • Re-Read the Rules of Professional Conduct from time to time.
  • Check out the bar’s resources for professionalism.
  • Take stock of where you are professionally.  Are you making your clients’ lives better, or are you just doing what it takes to get by?  Are you becoming the kind of lawyer you idealized when you decided to become a lawyer?  Are you adding something to your profession?  And are you treating your practice as a profession, or is it just another job?
  • If you have been practicing five years or less, have you found a mentor who is a competent attorney to rely on that attorney’s guidance and advice through thorny areas where you have doubts about how to do what you think needs to be done?
  • What are your ideals, and what are you doing to accompish them?

And here’s a thought for young lawyers:  Set aside an hour or so and thoughfully write the eulogy for your funeral.  Yes, the eulogy you’d like to have delivered at your funeral.  Include all the accomplishments and admirable traits you’d hope to have mentioned when your gone.  Stick it away in the back of a desk drawer and then set out to achieve those accomplishments and develop those admirable traits.  Why should you do this?  Because you are writing your own eulogy every day you live anyway, and you might as well be intentional about it.  Next year around this time, pull out that scrap of paper and reassess where you are.  Re-draft it if you like.   

And what about the day-to-day practice of law?

Lawyers are busy these days.  Too busy, maybe.  Today’s financial demands, compounded by spiraling overhead and household expenses, put tremendous pressure on attorneys to take on more and more work until they feel they can only succeed by adopting an assembly-line, boilerplate approach.

What concerns me about it, though, is that it seems to me that lawyers are less and less familiar with the law and the rules, relying on forms and old information to get by.  Sometimes I will call a rule to the attention of a lawyer and will find that the lawyer was not even aware of it.  Or I will point out a case and the lawyer is surprised that it exists.  There have been times that I am convinced that the lawyer knows nothing more about the procedure he or she is invoking than what is set out in the pleadings (that often are copied from someone else or are dredged up from the bowels of the lawyer’s own computer with little additional thought).  I know I’m painting with a broad brush here, but bear with me if you think this doesn’t really apply to you.  You may find a few nourishing morsels if you’ll take a few minutes out of your busy schedule to read the rest of this. 

Granted, the pressures of time for today’s practitioner are great.  Caseloads are far heavier, and the law has become more complex over time so that what used to be a “simple divorce” now requires much more attention.  Time has become more compressed for the family law practitioner.   The fourteen hour workdays and weekend work so common in my early career have given way to a more sane eight-to-ten hour day and fewer weekends that allow for time with and attention for spouses and children, but the compression of time means more concentrated demands. 

Have you noticed how many times on this blog that I mention the importance of reading and keeping up with changes to the code, case law and the rules?  I hammer away at it because it is not only essential to your success as an attorney, but also to the benefit of your client.  Too often we think of professionalism as ethics, but I challenge you to think of professionalism not only in ethical terms, but also in terms of competence and how you present yourself and represent clients.

Given all of this, I contend that it’s time to consider a few changes to the way you do business that will make you a better lawyer and make your clients more pleased with your performance.  And if you are doing one or all of these, more power to you.  Here they are:

  • Before you file your next probate matter, read the rules and look over the applicable statutes.  You will be amazed what you will find.  If nothing else, you will be shocked to see what a heavy load of responsibility you are taking on by signing and filing those pleadings.
  • For that matter, look back at the code the next time you file some familiar pleadings and look for changes you might have missed or some other little twist in the law you may have always overlooked. 
  • Carefully read over every pleading before it’s filed.  Be honest: you let your secretary do most of your pleadings, don’t you?  Do you know that they’re right?  Are they up to date?  Remember that everything you produce is a portrait of yourself. 
  • Read the appellate court decisions each and every week without fail.  Court of Appeals hand downs are on Tuesdays after lunch, and Supreme Court’s are on Thursdays after lunch.  As you run across case law that will help you in pending cases, print out the decisions and put them in those files for use in court. 
  • Read the rules.  Lawyers who know and follow the rules generally impress judges as better lawyers because, quite frankly, they are better lawyers, and better lawyers can get better results. 
  • Read the statutes.  Before you file that habeas, read the law.  If you’re wondering how to sell a parcel of real property in an estate, look for a statute in the code.  The answer to how to record and enforce a judgment is in the code.
  • Use your brain.  It seems to me that too many young lawyers want to get by with a fill-in-the-blank practice.  No innovative approach, no novel arguments based on sound research, no extra effort.  It’s so refreshing as a judge to see lawyer come into court with a soundly-prepared approach to a legal problem that is well supported by authority.  
  • Advise your client.  If you simply do what the client says to do, you are not a lawyer, you are merely your client’s alter ego with a license; you are a tool.  Guide your client in the right way to go.  Influence what your client wishes to do with your judgment and knowledge.  If your client demands you to do something unethical or questionable, try to persuade him or her to take another course, and if they refuse, file a motion to withdraw.  Tell your client up front what the chances of success are.  Never take on the cause of a client who is seeking vendetta as opposed to legal redress; the former is malicious, and the latter is justice.

These are merely a starting point.  As a lawyer you have a duty not only to your client, but also to advance the profession.  It only takes a little time and devotion each day.  And if you are not devoted to your profession, perhaps you need to find something else to do.

Professionalism requires not only that you zealously represent your client, but also that you do it competently. 

Take advantage of this quiet time and take a look at yourself and your career.  It will be a rewarding investment of your time.

YET MORE ON MANDATORY PRO BONO

September 27, 2010 § 3 Comments

The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence.  You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.

Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration. 

Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude.  In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect.  The law is a profession and not a business.  Lawyers have a duty to the administration of justice. 

The Preamble to the Rules of Professional Conduct states:  “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”  [Emphasis added]  It goes on to say:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.  Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.”  [Emphasis added]     

Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner.  That practice persisted until counties began hiring public defenders to do the job.  Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it).  Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility. 

I also do not understand the significance of the point that no other state has MPB.  How does that matter?

As for the other arguments, I think they are sound and need to be considered.  I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar. 

It does seem to me that two things are necessary before a final decision is made on MPB:  First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard.  The silence on the subject is baffling to me.

REFLECTIONS ON THE CULTIVATED LAWYER

July 22, 2010 § Leave a comment

Tuesday I posted Felix Frankfurter’s advice to a young man who expressed an interest in preparing for a legal career.  What I find particularly interesting about it is the esteemed Justice’s view of what it takes to be a good lawyer. 

Here is what he said, paraphrased:

No one can be a truly competent lawyer without being a cultivated person. 

A good lawyer is a well-read person because that is the only way to acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking, skills that only a truly liberal education can give. 

No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great art and listening to great music. 

The truly competent lawyer stocks his or her mind with the deposit of much good reading, and widens and deepens his or her feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe. 

Early in my college career in Louisiana I announced my intention to go on to law school, and my father made an appointment for me to meet with a justice of that state’s Supreme Court for advice about the best course of study to prepare myself.  The judge’s counsel was to get the broadest liberal arts education I could get, and to take courses that required writing and expressing my thoughts.  He pointed out that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients.

The law is a great profession, but it requires not only a knowledge of and skill in its practice; it requires that lawyers use it ethically to influence and hopefully improve the lives of clients, whom they must represent “zealously within the bounds of the law,” and the larger society.  The lawyer who is well read and cultivated — to use Justice Frankfurter’s term — is the lawyer who is best equipped to meet the demands of the profession.

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