Attorney Misconduct, In-House Counsel, Legal Ethics

House Rules: Blind Leading the Blind

When we were inducted as lawyers, and when we were in ethics class, our reporting obligations were hammered into us -- yet, nothing is ever done. Why?

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Blind item: which fairly powerful, yet overly fey — and we’re talking Dana Carvey “Gay?? That’s ridiculous!!” fey — and married Biglaw partner with top school credentials, regularly double and triple bills clients?

Blind item: which Biglaw firm, when faced with a lawyer deponent from a small shop who was clearly mentally unstable, chose to do nothing, ignoring its reporting obligations?

I mention the above anecdotes because they are all true, and because they all include reportable ethical breaches. When we were inducted into the Second Department in Brooklyn, and in ethics class, our reporting obligations were hammered into us — yet, nothing is ever done. Why?

I am not one for ruining careers, or lives, because of indiscretions. But, all of the stories above indicate something “very wrong here.” And we wonder to each other why the profession gets such a bad rap. I believe that one reason is we don’t do enough to eradicate the bad seeds, and are terrified of notifying the reporting authorities about lawyers who might really be in trouble. Things are taken care of hush hush, people are paid off, and things continue on as before. The substance abuser is sent to rehab on the firm’s dime to avoid publicity, the lawyer with mental health issues is ignored because she might sue. And so goes our system.

Believe me, the stories above are true, and colleagues close enough to me will know immediately about whom I am speaking. And that goes to the crux of the matter. Everybody knows! We all “know” and yet, we allow the behavior to continue. The sexual harasser down the hall gets a pass because of his tenure, until he actually forcibly touches or propositions a female associate with enough moxie to say something. She gets enough money to retire early, and the harasser quietly retires. It’s utterly ridiculous!

The profession has noble underpinnings and a seamy underbelly. (See what I did there?) And I will be the first to admit that I said nothing out of fear. Fear for my career, for my family’s well-being, and so on. “Hey, they’re paying me six figures, who am I to rock the boat?” In fact, it could be argued to be cowardly of me to write of these ethics issues so far after the fact. Point taken; none of these folks are in a position to “hurt” me, they probably won’t read this post, and they might not even recognize themselves if they do. And if someone does inform them, so what? Shame on them for abusing young lawyers, and shame on the young lawyers for not following through on what they know to be correct ethical steps.

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The fey partner should have been blown in when the associate realized what was going on. If nothing happened internally, well, that’s what Grievance Committees are for. And believe me, when you get an inquiry from the Grievance Committee, it stops you cold. A former brother-in-law reported me in for the heinous act of taking sides in an ugly divorce. The issue was promptly thrown out, but I’ll never forget opening that letter.

The second attorney needs real help. She is not necessarily a malicious person, but she is unhinged. No, I am not a psychologist, but trust me when I say she needs help. The reasons for her instability are not important, her instability is what matters. The overarching point is this: by doing nothing, I became complicit in these ethical issues. They became my issues, instead of the issues of others. And I live with that guilt.

It is interesting that in my current role in-house, I would not hesitate to stop unethical behavior, by a fellow attorney or someone in the field. Maybe I have matured, or maybe I just don’t care about personal ramifications anymore. “If you see something say something” is a joke to subway riders in NYC. But ethical obligations, especially obligations that can assist a colleague in need, should be heeded, for the sake of the attorney, and for the sake of the profession.

After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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