Lawyers need to learn to say No to their clients

Massachusetts Lawyers Weekly

1997

Harvey Schwartz

Rodgers, Powers & Schwartz

18 Tremeont Street, Boston MA 02108

(617) 742-7010

Who else is tired of lawyer jokes? Why was it that the loudest cheer in the movie theater when I saw "Jurassic Park" was when the tyrannosaurus ate the lawyer in the outhouse? My kids know them all. They tell me the latest joke about lawyers crawling under snakes and I smile and moan but it really doesn't feel very good. I don't like my own kids putting down what I do with my life. I'm proud of being a lawyer. What is most frightening, though, is acknowledging that there may be some truth in lawyer jokes.

So here we are, lawyers feeling sorry for ourselves for being the butt of jokes. (Check out http://www.cartalk.com/About/Lawyers/index.html for a compendium) Maybe instead of marching in lock step with the victim mentality that is so au courant, maybe we should accept some of the blame for the general public conception that the first place to look for a sharp lawyer is under a damp rock.

Here's an example of how far things have gone astray:

Humpty Dumpty sat on a wall,

Humpty Dumpty had a great fall,

All the King's horses

And all the King's men

Couldn't put Humpty together again.

Take a moment to reflect on what your first thoughts would be were the Widow Dumpty to show up at your office and recite this tale of woe. Would any of these thoughts go through your mind:

"Must have been a problem with the design and construction of the wall that caused this great fall. We'll need an architectural expert to testify about negligent design and an engineer to testify about the poor quality of the mortar holding the bricks together."

"Great fall, huh? You can only have a great fall from a great wall. Just how great was this wall? Sounds like the wall owner is a deep pocket. How do we name him? Could that Great Wall be an attractive nuisance?"

"What's all this with the King? Might be a sovereign immunity problem. Can we name the King's men in their individual capacities? When is the deadline for notifying the King about the Widow's claim?"

"Horses?!? What were they doing using horses to put him together again? This could be a med-mal claim. Do we need a veterinary expert?"

"I wonder if Dumpty suffered before he fell to pieces. That could boost the value of this case."

"How much can I make on this case? Will I make more if I keep it or send it to somebody in Boston?"

Would it enter your mind to tell the grieving Mrs. Dumpty that she doesn't need a law suit at this time in her life, that she should stop looking to blame others and just admit that she was married to a guy with an eggshell skull who should have known better than to sit on high walls? How much business do you turn away because you think the case is silly even though there is money in it . . . or do you find those two concepts to be contradictory, that a case that can make you some money is by definition not silly?

Lawyers used to be considered counselors-at-law, wise persons to whom others turned for advice and guidance about difficult problems that faced them. Now we are seen as hired guns, sometimes little more than folks who have a license to threaten to do horrible and unpleasant things unless our target pays lots of money to the person who hired us to do this job. If we are not thought of as respected professionals perhaps it is because we aren't acting like professionals.

Professionals exercise discretion and judgment. A gas station doesn't hire a professional to pump gas. It hires a kid who'll pump the same gas into every car that stops at the pump. If we are to be professionals, we have to do something more than just pump out litigation for every person who shows up at our offices with a tale of woe, money in hand or a deep pocket defendant in his sights.

I had a long conversation the other day with a lawyer I respect greatly. She was referring a case to me, a man who had been fired by a large corporation. We discussed his situation and she and I concluded that he had no legitimate legal claim of any sort. And then this well respected attorney suggested that we write to the corporation's general counsel and propose negotiations about a settlement.

"They'll give him something to make him go away," she told me. "They'd rather pay him than pay their big law firm. Lets see what we can get for him."

I declined, but I'll freely admit that from time to time I've gotten settlements for clients on some pretty precarious claims. And I'll admit that she was probably right and I was probably wrong. We could have gotten some money for this poor fellow who'd lost his job and surely needed the money more than his former employer did. The corporation most likely would have paid something to make him go away, actually to make me go away. And it would have been a wise move for the corporation; it would have cost less to pay him than to pay its lawyers to defend a law suit. This sort of decision-making is bread and butter legal practice for lawyers on all sides of these issues.

Just for a moment let me be impertinent enough to inquire how this situation differs from extortion, differs from the gangster telling Mom-N-Pop grocers that for a little protection moolah they should buy fire insurance from him? It would make as much sense for Mom-N-Pop to simply pay up as it would for the corporation to settle a frivolous claim cheaply. Joe-the-Legbreaker made his demand in order to line his pockets, as do we attorneys. Of course, what we do is, by definition, legal, while what the gangster does is frowned upon, and because of that we run little personal risk in making our demands. But in theory -- just speaking theoretically for now -- is writing a demand letter "just to see if they'll pay something" a totally different creature from suggesting a payment of protection money to avoid something undeserved but awful happening to your business?

Of course, this doesn't apply to real claims, real harm, real violations of law, real cases where writing an initial demand letter is just being polite and you intend to go the full route if need be. Of course we should be pursuing those cases, vigorously. Hollywood stills loves lawyers who fight the good fight. We should still be creative, venturing onto what Prof. William Schwartz at Boston University Law School used to call "the idear frontier."

Those cases don't lead to lawyer jokes. I'm talking about the cases brought "to see what we can get." Extortion cases.

I've been doing a lot of thinking about this aspect of legal practice lately. Just because our licenses and skills enable us to get money for a client -- or to assist a client in avoiding paying money -- should we instead counsel the client to back off and not do what he proposes to do? If we are to be "counselors-at-law," one of my favorite letterhead phrases, shouldn't we be doing more counseling and less gun slinging?

There was a time, not too long ago, when this country was run by lawyers, lawyers as lawyers and judges and lawyers as legislators and mayors and governors, lawyers as business counselors and lawyers as the person you went to when you had a sticky problem in your life. Lawyers sold -- or gave away -- wisdom. Lawyers told businessmen when not to do something wrong, not how to do it and get away with it.

We need to do more counseling. We need to tell the people who come to us for our wisdom not to do something that we know is wrong instead of working our hardest to help them get away with it so long as there is some money in it for us, too.

I had a client once who told me my job was to tell him just where the line was . . . and then how thick it was because he wanted to shove his toes right up to the far edge of legal behavior. We used to laugh about that. Looking back, however, what I should have done was tell him to put his shoes back on, back off from the line and just be a good person. Maybe he wouldn't have made that last nickel, but he wouldn't worry about whether he'd danced over the line when I wasn't looking. I should have counseled him about doing good, not advised him about how he could be as bad as he could be without getting caught.

Most of what lawyers do is pretty noble. They can hate us and joke about us but society couldn't get by without us. People who complain the loudest about lawyers want representation by Ghengis Khan, Esquire when they get into trouble. We can be a great force for truth, justice and honesty in society. At least we are the bogeymen lurking in people's imagination when they wonder whether they can get away with something they know they shouldn't do.

But we should admit that the way law is practiced today contributes to much that is wrong with society. By empowering victims we support a victim mentality. By creating excuses for almost everything we absolve people of responsibility for anything. By taking money or making money to do whatever our clients ask us to do we prostitute our professionalism.

There's nothing wrong with saying no to a client. No, I won't file this suit just because it has some settlement value and you and I can make some money. No, I won't drag this plaintiff through years of humiliating discovery just to wear him out for settlement. No, I will not help you get around this law, which protects people but costs your business some money.

If we are to be considered as professionals once again we must act professionally. It means something that we are officers of the court. We are given powers and abilities far beyond those of mortal men. With a stroke of our pens we can compel people to drop what they are doing, come to our offices and answer our endless questions. We can force people to give us their most private records. We can command deputy sheriffs to go to peoples' doors and deliver threatening documents to them, demanding a response within twenty days. Our licenses empower us to extract huge sums of money from the wealthiest corporations. The most humble of us can compel the United States government itself to come to court and answer our allegations.

These are not things a plumber or dry cleaner can do.

Lawyers are made different by the power society gives us. Lawyers have been given these gifts, these powers, because historically lawyers have been wise in their use of power. Lawyers wrote the Constitution and formed this country. Lawyers sat in Congress, made up the presidents' cabinets, advised and counseled titans of industry. Lawyers earned the authority society gave them.

The system seems to be broken down now. Instead of being the Founding Fathers, lawyers are the butts of jokes. Lawyers are viewed by businessmen as gumming up the works, not lubricating the gears of commerce. We are like the archetypal hero who misuses the special powers bestowed upon him. We are viewed as having given in to the Dark Side.

We can work our way out of this hole. We can begin to advise our clients that they should obey the law even when they are not likely to get caught breaking it, as silly as that may sound. We can advise people to take responsibility for harm they have brought on themselves rather than blame everybody else for the poor hand life dealt them. If we are professionals with at least a modicum of responsibility to society as a whole then we can decline a few opportunities to make money just because they present themselves to us.

Respect for the legal profession - which translates into respect for us -- can be restored. We can put our own Humpty Dumpty back together again. But we won't do it by blaming the king's men and the king's horses. We'll do it by accepting the blame for what we've done to ourselves and changing our own behavior.