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Addiction, Ethics, And Bravery

Kudos to those who are confronting various mental health issues. It’s not easy being in the spotlight and discussing such personal matters.

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Simone Biles (Photo by Fernando Frazão/Agência Brasil)

Well, yahoo (and I don’t mean THAT Yahoo). Finally, there’s conversation about the “addiction,” that the federal bench seems to have for Yale and Harvard graduates. These peeps are not the only fish in the sea for judicial appointments, and it’s well past time to look beyond these two elite law schools for federal judicial candidates who can do the jobs just as well if not better than those from the two schools. In many cases, regional and local candidates are way closer to the communities that they hail from and are better able to understand them. How about some academic diversity on the federal bench? Sounds like a plan to me.

Diversity, equity, and inclusion require that judicial appointments are more than just rubber stamps from those elite schools that seem to have the lock on appointments to the federal bench. Not everyone has the academic credentials, the recommendations, the scholarships, or the deep pockets to go to these schools. And I wonder how many graduates of those schools, along with other elite schools, who go on to Biglaw careers, find themselves miserable and ditch those careers for something else. I can think of more than just a few, but I’m not saying.

Not everyone can afford to go to an elite law school. Not everyone can juggle the three years with a job to pay the bills. Not everyone can balance the needs of law school studying with family responsibilities. But those who attend nonelite law schools are just as qualified as those who have that pedigree from Harvard or Yale. I’ve always thought that pedigree is for dogs. Isn’t there a dog food by that name?

Bravo to United States District Judge Michael McShane of the District of Oregon who testified before the House Judiciary Committee and used the term “addicted” to refer to the preference toward Harvard and Yale lawyers for bench appointments. So, how to withdraw from that “addiction?” Begin at the beginning: “making law school admissions less homogeneous, helping students from regional law schools get clerkships and making the [judicial] nomination process accessible to nontraditional candidates.” However, we all know how hard it is to overcome addiction. Withdrawal takes time, but it’s vital if the federal bench is to look at all like the population it is supposed to serve. Speaking publicly about the addiction is a good place to start. Now, where to go for rehab?

Just more evidence that an attorney responds on social media to an unhappy client at his peril. The scenario is all too familiar: unhappy client complains online about his attorney. Attorney responds (let the pissing contest begin) and reveals details about the client, including information in public records. The Oregon Supreme Court said that it’s not just privileged information that an attorney cannot disclose, but also information that would be embarrassing and detrimental to the client, even though such information is public record. No matter that such complaint may be embarrassing and detrimental to the lawyer. Rather than impose a suspension, the Oregon Supreme Court publicly reprimanded him.

To me, engaging in a war of words online is a waste of time. I don’t think a lawyer ever wins. Trying to defend himself or herself on social media runs up against the Streisand effect, which just further imprints the issue and makes it last longer. It’s like that mosquito bite. Leave it alone and it will go away, but if you scratch it, the itch lasts longer and so does the bite. It’s mosquito season, need I say more?

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There is always something going on in Tinsel Town litigation. Most recently, the Second District Court of Appeal (note, the name of the court is not pluralized) here in Los Angeles disqualified a private retired judge from continuing to preside over custody issues between Angelina Jolie and Brad Pitt involving their six children. Essentially the appellate court benchslapped the private judge for not disqualifying himself due to a conflict of interest for work done on other matters involving Pitt’s lawyers. (Full disclosure: he and I are both on the same panel of neutrals here in Los Angeles, although I don’t think we have ever met.)

The appellate court chastised the retired judge for not disclosing the fact of his work on other cases involving Pitt’s counsel. I don’t know anything about the circumstances except what’s in the opinion. It’s worth reading to remind all of us, whether sitting judges, retired judges, attorneys, or neutrals, that it’s always better to overdisclose than not. You don’t get into trouble by doing that. The court said that the duty to disclose is an affirmative one, to be volunteered without prompting and not disclosed only in response to a question. The test, said the Court of Appeal, is the assessment of “how a reasonable person would view … [the private judge’s] ability to be impartial.”

Disclosure was the temporary judge’s responsibility, and that duty cannot be offloaded onto the provider or its staff, which is what he tried to do. Just as a lawyer cannot blame support staff for his error, the court said that the temporary judge must accept the responsibility for the ethical lapse.

And finally, kudos to Simone Biles, Naomi Osaka, and all the others who are confronting various mental health issues. It’s not easy being in the spotlight and discussing such personal matters. The more discussion, the less stigma. If Olympic athletes are courageous enough to step up, then why can’t lawyers? The profession would do well to model their bravery.

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Jill Switzer has been an active member of the State Bar of California for over 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.

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