What Were They Thinking?

More stupid lawyer tricks.

It’s Monday morning and I am staring at a blank page on my laptop, mulling over what I might write about. By the way and this is a definite “by the way,” if you ever have the chance to see the documentary movie California Typewriter, do so. (It’s only in theaters right now, but I guess it’ll be on VOD and streaming soon). I’m not saying this because it has “California” in the title, but because it’s a fascinating story of those who love and collect vintage typewriters and use them for writing, rather than word processing software. I’m sure that other lawyers of dinosaur vintage remember their first typewriters (usually they were manual, not electric). Mine was a Smith Corona, and then when I went to law school, I got another Smith Corona, this time splurging for an electric (and as a starving law student, that was a splurge).

I digress. I was going to hold off on writing another “stupid lawyer tricks” column, but I can’t resist. There is so much to choose from. Why? What is wrong with us? These kinds of escapades just reinforce the stereotype that so many non-lawyers have of us, and given the examples here, I don’t blame them for thinking that our profession has a high moron quotient. The vast majority of us, and I’m speaking of the “blue collar” lawyers in the trenches of what we do, look at these antics and are appalled, especially as some of them arise at Biglaw firms where pedigree from the pedestal seems to be a common thread. Those of us who don’t toil in those environments are often regarded from on high with disdain. I could use other terms, but even though this is not a family friendly website, I’ll refrain.

I am a huge fan of John LeCarre (no, I haven’t read his latest book yet). In one of his earlier novels, The Constant Gardener, subsequently made into a movie, a woman lawyer makes a remark that has stayed with me for years. I use it all the time because I think it embodies the utmost importance of client confidences. Tessa, an Oxbridge trained lawyer, says, “Compared with me, the grave is a chatterbox.” Amen. Spot on. Clients may not understand confidentiality in all its nuances, but no one doesn’t understand that reference. Neither should any lawyer.

Except in certain limited circumstances we carry client confidences to the grave and even beyond. We were all taught very early on in our legal careers that you don’t discuss client matters in elevators, hallways, in fact, any public places. Conversations should stop and not resume until in a place of privacy. Even more so today, when you never know who is listening and where. It’s not that difficult a concept for people to absorb and shouldn’t be for lawyers. However, I am amazed at the number of cell phone calls that lawyers have discussing confidential matters, including mentioning names, and usually at a conversational level just below a jet engine on takeoff.

I think most attorneys understand client confidentiality, with some notable exceptions, as Joe Patrice points out. 

This was not just any client the lawyers were talking about. So, if you don’t understand the sentence “The graveyard is a chatterbox compared to me,” let’s put it in simpler terms: STFU. I would imagine what gratifies a lot of us “blue collar” lawyers is that Biglaw lawyers are not immune from stupid lawyer tricks. Makes them almost human, right? Would the term “You’re fired” be appropriate here? 

Sponsored

This next one has nothing to do with client confidentiality but with criminality, as two California attorneys, husband and wife, got too pissy about a volunteer who allegedly didn’t do right by their child at their child’s school. They decided to wreak havoc on this poor volunteer’s life by planting drugs on her, kind of a “we’ll show her.” The husband? What was he thinking? He wasn’t. What was the wife thinking? She wasn’t, either. Both of them disbarred. Conduct beyond stupid.

So, here we have two lawyers, she a graduate of Berkeley Law, he a UCLA Law graduate, hardly schools in the lower tiers of law school academia and US News and World Report rankings. 

They either couldn’t or wouldn’t figure out when “conduct unbecoming” for a lawyer crosses the line between just plain tacky and criminal. Add in to that mix disbarment.

But wait! There’s more! How about this one? A Biglaw staff attorney who was stupid enough to use his Biglaw’s email address for extracurricular activities. Using your work email for this? Really? Didn’t this lawyer have a personal email account? How many times does a lawyer have to be told that work emails are not personal; that is, there’s no right of privacy in an employer’s email system? And if this lawyer didn’t get that, perhaps he needed to brush up on privacy law and criminal statutes on kiddie porn. 

As we used to say in the D.A.’s office years ago, “don’t do the crime if you can’t do the time.” All those years of law school, bar review, taking and passing the bar, climbing the various lawyer job ladders. Careers ruined, reputations ruined, licenses lifted, and for what? What were they thinking? I don’t know if I’ll ever understand.

Sponsored

I’ve commented a lot of times about judgment or lack thereof that we lawyers (and bench officers) demonstrate. It’s a skill like emotional intelligence and empathy that have traditionally been given short shrift both in law school and especially in once in practice and also on the bench. See Exhibit A, which comes from the “play nice” department. Just as there’s no “I” in “team,” is there any “judge” in “judgment?” 

The all-news radio station here in Los Angeles used to (I don’t know if it still does) run a sports feature in the weekday afternoons called “The Athlete Arrest of the Day.” I was always amazed that the sportscaster was able to find at least one every day, but he was.

I’m wondering if ATL ought to do something similar for lawyers and judges. For lawyers, it could be called the “Barrister Bust of the day.” That has a nice ring to it. I’ll leave it to ATL to name a similar feature for bench officers. Since “benchslap” is already taken, I’m sure the editors will name it appropriately.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.