What Were These Lawyers Thinking?!

Handing out awards to the lawyers who did some of the stupidest things in 2018.

Since this is the start of the self-congratulatory awards season in Tinsel Town, I thought I would hand out some awards of my own: the Running AFowl (sorry, I couldn’t resist) Awards, bestowed upon those in the legal profession who deserve shout-outs for some of the best “what were they thinking” moments of 2018. I could wait until 2019, but there’s just too much good stuff not to share now, and the symbolism of a turkey should not be overlooked. Besides, there will be plenty of awards to give out next year.

It’s not just lawyers who will receive Running AFowl Award, but also judges, law students, law schools, and faculty. What does the award look like? Imagine a completely plucked (or your choice of adjective that rhymes with plucked) large bird in his birthday suit.

Let’s start with a Running AFowl Award to Los Angeles Superior Court Judge Ernest Hiroshige, who likes to delegate his workload to staff. Isn’t that a nondelegable duty? The California Commission on Judicial Performance thought so and publicly admonished the judge for allowing his court clerk to handle case management conferences. Hiroshige didn’t think so, but the Commission begged to differ and did.

To add insult to injury, the judge had been disciplined in a private admonishment some years back for, among other things, similar conduct. Remember when our parents scolded us (and I’m speaking to you, dinosaurs) they would say words to the effect of “If I’ve told you once, I’ve told you a thousand times, [insert conduct being punished].”  So, the Commission has now told this judge twice, but somehow I don’t think the Commission will have much more patience with conduct like this. At least, it shouldn’t.

Not to leave law schools out, a Running AFowl Award goes to whoever thought up this derogatory title question for a conference at Indiana University Maurer School of Law: “Are You Smarter Than a Public Interest Lawyer?” Really? While the unidentified law student who came up with the name for the conference has done the obligatory apology, maybe the question should have been, “Are You Smarter Than the Turkey Who Named the Conference and All Those Who Agreed That the Name Was a Good Idea?”  How many morons does it take to name a conference and to insult your audience at the same time? However many it took, you’ll all have to share the one award, as ATL has no budget for turkey trophies.

Then there’s the lawyer who texted his nonpaying and noncooperating client to “have a nice time in prison.” Only problem with that little text was that it rightly got the lawyer in trouble with the New Jersey Bar Association, which censured the lawyer for conflict of interest and conduct prejudicial to the administration of justice. A Running AFowl Award has this attorney’s name on it.

As I have lectured clients over and over again, don’t put anything in writing that you wouldn’t want to appear anywhere.  Moral: no matter how pissed off you are that the client isn’t cooperating and that Mr. Green has not appeared (ask any criminal defense lawyer who Mr. Green is), don’t put it in writing or else risk discipline.

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Thinking more than once before sending is a good idea. Lawyers using social media do so at their professional (and personal) peril. So a Running AFowl Award goes to this Iowa lawyer who called his client “an idiot and a terrible criminal” on Facebook. If you have to explain, recant, reinterpret your words, or say “never mind,” you are a turkey for posting in the first place and then backtracking in the second place. Either you meant to say it or you didn’t, which I consider to be a corollary of the question “were you lying then or are you lying now?”

Which leads me to a philosophical question: why do lawyers post on Facebook anything having to do with clients? Is the risk worth the momentary pleasure of the rant? Do turkeys rant? Perhaps if they’re not the ones pardoned every Thanksgiving.

Continuing with the Awards, there’s a joint Running Afowl Award to two Ohio lawyers who violated two ethics rules: disclosure of client information without consent and just being plain stupid by trading information that they shouldn’t have.  Newbie lawyers: learn what the term “redaction” means. It’s very common for lawyers to share forms to avoid reinventing the wheel and to ostensibly reduce costs for the client (what a concept). However, if you going to share a form, then make sure all the identifying client information has been deleted. It’s not that difficult.

It should be elementary that you don’t bite the hand that feeds you and so a Running AFowl Award goes to Robin Haynes, the former president of the Washington State Bar Association, charged with stealing money from two law firms where she had worked. What was she thinking?

And last, but certainly not least, a Running AFowl Award (to be shared) to all those law school deans and faculty who thought that “this year will be different” in terms of bar results.  They were right, but not in a good way. Bar passage rates are down, including New York.

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Even worse, the July bar passage rate here in California sunk to a low not seen in almost 70 years (and that was even before I passed the bar). Nearly six in 10 bar test takers flunked the bar. Read that sentence again. Barely 40 percent passed. There will be stories about wringing hands and fingers pointing amid cries to lower the cut score resulting from this stinker. California has a reputation for cataclysmic natural disasters (think fires, mudslides, earthquakes), but this one was man-made.

This ongoing saga of whether to reduce the cut score will continue for the foreseeable future, especially since the California Supreme Court decided not to lower the cut score last year.  Everyone gives advice on how to carve the Thanksgiving turkey. I’m sure there will be lots of similar advice about how to carve our bar exam.


old lady lawyer elderly woman grandmother grandma laptop computerJill 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 oldladylawyer@gmail.com.