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Washington Lawyer

Legal Spectator: An Exclusive Club:

From Washington Lawyer, December 2006

By Jacob A. Stein

spectator A prospective client is in the office. He has an interesting case. He needs a lawyer. Without good legal advice he will be in real trouble. He cannot afford legal fees. The lawyer listens. He repeats to himself his personal resolution not to take on another no-pay case. But he makes the fatal mistake of continuing to listen to the facts. He peruses the documents. He asks more questions. He knows the scheme and he knows the swindlers. He shuffles the documents into chronological order. It is likely that this poor fellow will lose the little he has. The lawyer is hooked. Vanity enters the picture. The lawyer thinks (and says) he can outsmart the swindlers.

There is an exclusive lawyers’ club whose members cannot turn away an interesting case just because the client has no money to spend on legal fees. I am told that a lawyer seeking admission into this club must satisfy application requirements that far exceed those of Harvard, Yale, Georgetown, and Stanford. Here they are:

• The applicant must have lost a respectable number of civil and criminal cases. He must know where the courthouse is. He must know all the litigation tricks. He must believe that occasionally right defeats wrong.

• He must have a roving commission that gives him the freedom to do as he pleases concerning what cases he decides to take. He is not subject to an approval committee appointed by the executive committee, which itself has been appointed by the management board, which has final authority over what he can do.

• He must not keep hourly billing records to prove he is pro bono virtuous.

• He must have read William Wordsworth’s poem “Character of the Happy Warrior.”

• He must see the futility in much of what he does. He must pray for the end of the sentencing guidelines. He must be willing to listen to disturbed people oppressed by those with temporary power, people misused by the judicial system. People ready to give up.

•He must know that the initial enthusiasm that arrives with a new case will be tested by well-funded opposition lawyers. He must know about the law’s delay and the likelihood that he will not have the time to give the case what it needs. He must know that the Club’s work involves bad people. He must keep his emotions under control.

• He must refresh himself by reading what the Roman emperor Marcus Aurelius noted in his diary. Marcus begins each day by saying, “I will meet the corrupt, the greedy, the arrogant, the deceitful, the envious, and the boastful. Therefore I shall not be unreasonably disturbed by it all, no more than I am disturbed by changes in the weather.” (Stein translation from the original Latin.) Club members add to this such things as injustice, economic oppression, bureaucratic arrogance, harsh judges, and assorted bad acts identified in Rule 404(b) of the Federal Rules of Evidence.

• He understands he must occasionally tell the truth to a claims adjuster. He must be lucky enough to get a continuance when he is unprepared to try the case.

• He must believe that the meaning of things does not lie in the things themselves but in the judgments he makes about them.

The clientele of the Club includes people caught in a minor violation of the law and who are being pursued by a mean-spirited relentless prosecutor needlessly spending the government’s money just to ruin a small life.

It defends good lawyers who happen to be in trouble mostly because they cannot afford to pay for all the checks and balances required to meet the criminal rules, the civil rules, the local rules, the judge’s rules, and the professional rules of this and that.

It defends good lawyers in cases that may involve a complaint by a hardened criminal asserting that the lawyer (underpaid of course) did not get an acquittal. The guilty defendant asserts in his complaint that there would have been an acquittal but for the fact that the lawyer did not find and subpoena an alibi witness. In one case of this kind when the so-called alibi witness eventually was found, he was in jail looking for his own alibi witness.

Club lawyers do not take no-pay cases of people who, although wronged, seek vengeance. Such people are dissatisfied with a reasonable settlement. They must get everything they want and then some. They must inflict injury on their adversary. When they have power they are as bad as the people they despise. Club members will not help those who live for litigation.

The reward that comes to a Club member is not in terms of money or fame. It is in the form of an approach to life, best described as optimistic disenchantment that survives injustice, bad acts, special prosecutors with press agents, deadlines, and all the other slings and arrows.

Club members secretly aspire to the aristocracy E. M. Forster described: “Not an aristocracy of power, based upon rank and influence, but an aristocracy of the sensitive, the considerate and the plucky.”

I am told the Club’s meetings are unscheduled. Members meet by chance while out taking a walk. They reflect on how much self-delusion and good luck contribute to a successful career.

They agree that in their line of work they often have to give bad news to their clients. A member brings up the names of lawyers who charge big fees, really big fees, for consultations containing nothing but bad news. These legal pallbearers look the well-heeled client in the eye and announce that all is lost. Not only that, things will get worse. A Club member says, “What an interesting specialty. How does one get into that club?” Meeting adjourned.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.