Is The Legal Profession Having A Meltdown?

Remember as kids when we would whine to our parents, teachers, or whomever that “Sally [or Tommy] did the same thing” as we did and we’d be caught and they weren’t? Surely all of us used that line at one time or another. And some of us still use it now. Lawyers are so good at crafting reasons to excuse their behavior, putting a new spin on the term “creative lawyering.”

I have absolutely no idea how much of this still goes on behind closed doors, but every once in a while, an attorney gets a well-deserved “gotcha.”  Since I practice in the self-absorbed awards capital of the country, perhaps there should be a “Gotcha” award, given to the lawyer most deserving and symbolized with a tarnished shovel for shoveling the most you know what when trying to make a “straight face” argument to a bar disciplinary board.

And this time it couldn’t have gone to a more deserving lawyer, who has been suspended indefinitely(!) for his shenanigans. This Cleveland lawyer’s client recorded a conversation that led to the suspension. Oops.

Lessons here: don’t consider discovery just a game, don’t ignore legitimate discovery demands, don’t disparage your opposing counsel and make her fly in for a deposition that doesn’t take place. In summary, don’t be a jerk and jerk opposing counsel around.

What was the attorney’s excuse? He was trying to balance all the demands of moving from a brick-and-mortar office to a virtual one. Please. Another excuse: he was only “puffing” to build up his client’s confidence in both the case and him as counsel. Really?  That turnip truck on the turnpike must be the same one that the attorney thought the Board of Professional Conduct of the Supreme Court must have fallen off of.

The Board delivered a well-deserved benchslap to this lawyer. “Given that Moody had neglected his client’s affairs, intentionally frustrated the discovery process, made misrepresentations to the court and opposing counsel, advised his client to lie, disparaged opposing counsel, and forged a defense to the resulting disciplinary matter that was simply not credible, the board determined that an indefinite suspension was necessary to protect the public from future harm.” Schadenfreude never felt so good.

Another lesson: in these days of ubiquitous recording devices, not to mention social media platforms, be careful. If any doubt, don’t say anything you’ll regret later. Stifle yourself.

Ohio seems to be a popular state right now for lawyers going rogue. Yes, LeBron James is gone, but get over it. So, here’s another Ohio lawyer, this one from Columbus, who was suspended for stomping on a witness’s cellphone as he recorded a road rage incident involving the lawyer and a bicyclist. The lawyer only received a one-year suspension.

Another lesson: don’t stomp on someone else’s cellphone and claim that you were only trying to collect evidence. Huh? In my experience, stomping on evidence does not equate with collecting it.

But wait, there’s more. How about disorder in the court? One New York lawyer’s pleading antics got him suspended for three months. Do you think that’s enough time? His excuse?  The conduct of the judges he appeared before. No sale. The court found that “Respondent has evinced a flagrant disrespect for the judiciary and a fundamental disregard for the judicial process which he has been sworn to uphold. Far from expressing genuine remorse for his disrespectful conduct, respondent has consistently sought to justify his improper conduct by blaming the Justices before whom he was trying cases.”

Just one example of his rants should suffice: ““THIS IS LA LA LAND ON STEROIDS…. I CAN NOT COMPREHEND THE #%*%#$^%* THAT IS THIS DECISION…. This is so bizzaro land that it is hard to type.”  His caps, not mine.

What’s going on? Is the profession having a meltdown?

I mediated a case last week where both attorneys and I were dinosaurs. Both lawyers are solo practitioners of many years — both understood that the purpose of going to mediation is to resolve the case, not prolong it, and both prepared their respective clients so that they understood what was at stake and what would be the best outcome. What a pleasure to work with them to resolve the matter.

However, both grumbled about law practice today and how it is practiced, or not. Both complained about the lack of courtesy and cooperation among counsel, the game playing (see first example above) and how the profession has suffered in their eyes as a result. I think that they would be the first to admit that some changes have been beneficial, especially technological improvements that allow one of the attorneys to still practice and litigate full time despite having gone totally blind more than a decade ago.

I don’t think it’s technology by itself that has accelerated the lack of courtesy and cooperation and civility, but I do think the pressures of law practice today have contributed to the problem and technology has definitely played a role.

What worries me is that lawyers now think that it’s okay to play games with opposing counsel and their clients, running up fees, using provocative and unnecessary language to advance their cases, insulting the integrity of the court. Is this kind of conduct the “new normal,” rather than a deviation from the norm? There’s a huge difference between aggressive advocacy and being a shithead.  Unfortunately, too many lawyers don’t know and appreciate the difference.

I’m old school and so I hate to see the profession go down a rudeness road from which there may be no return. When we see cordiality, professionalism, and respect for the courts as weaknesses, we’re doomed.

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Jill Switzer has been an active member of the State Bar of California for more than 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 [email protected].