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Washington Lawyer

Legal Spectator: Thoughts in the Late Afternoon

From Washington Lawyer, February 2004

By Jacob A. Stein

spectator Should I take my book of business and join up with others who will let me keep more of what I bring in? Would I take a good governmental agency general counsel’s position if it were offered?

What is the future of the law practice? As law firms sign on for the business protections that a limited liability partnership gives and as law firms advertise, even using brand names, the practice in the public mind is indistinguishable from any other business. Is it likely that the government will take the game away from the courts and turn it all over to a government agency? Arthur Andersen, before it hit the iceberg, had more lawyers working for it than any law firm in the country. The Securities and Exchange Commission has taken control of the accountants and may branch out and pick up law firms. Or there may be another agency created just for law firms.

Is there a real difference between the mind of an accountant and the mind of a lawyer? Accountants believe everything can be made precise and be placed on a balance sheet. What is not in numbers positively does not exist. That leaves out most of what life is about. It is the territory in which Freud lost his way. Lawyers, when they are thinking straight, know that human conduct is not numerical. It is unpredictable, elusive, contradictory, and often funny.

How much business have I lost because of conflicts in this firm? The bigger we get, the more conflicts. There is talk around here of another merger with another big firm. If that happens, I will have more conflict problems.

What about putting all aside and try teaching? I have the impressive academic background. What could I teach? Would I be a good teacher? Teaching would require me to take three months off to bone up, and then I must make up my mind that I would be the best teacher the students ever had. That means throwing myself into it and putting on a two-hour show twice a week. I no longer have the energy it takes.

Are the differences between the types of law practice so well defined that the general designation of lawyer for us all is inapplicable? For instance, the big-firm practice—big transactions and big litigation in the millions have nothing to do with the small-time practice representing people in trouble (some criminal, some contingent cases, and some other things)— has nothing in common with what the big firms do. There should be different ethical rules for each. One size does not fit all. When a firm representing a big corporation makes a blunder, the big corporation does not complain to Bar Counsel as an individual does. The big corporation uses self-help. It fires the firm.

The billing committee wants me to improve my “realization rate.” What poet came up with those words realization rate, the difference between what I bill and what the client pays. The billing committee never gives me permission to cut a bill, so I have problems with my realization rate. They would not give me permission to cut a bill for work I did for my sick mother. They were once talking about suing one of my clients to collect a bill. I recall a law school teacher saying to the class, never sue a client because you’ll get a counterclaim for malpractice, and your bills will be scrutinized in such a way that there will be some embarrassing disclosures.

I am never so happy as when I get a new client. New people. New documents. New reasons to say to myself (but never to the client), how could he be so dumb? On that point I also say to myself that we have all been as dumb in our own way and we will be in the future. How to deal with people in trouble? It involves who I am and who the client is. I am five different people and so is the client.

The interesting part of practicing law is trying to fit our conduct to our precepts. In order to do that I must first identify my own precepts. Are they fixed or are they changing? I suppose I am like everyone else. I act according to my inclinations and say these are my precepts.

When I drift toward cynicism, as I am now doing, I reread what Piero Calamandrei said. He practiced law in Rome during the 1930s. The courts he practiced in were rumored to be corrupt, and litigation once commenced never ended. Calamandrei was undaunted. Let me read him again.

Who was it that invented that cowardly and temporizing proverb, Habent sua sidera lites? Though couched in decorous Latin it says in effect that justice is a game of chance, never to be taken seriously. Surely the expression was coined by some legal hireling without scruples or passion, hoping in some way to excuse his own incompetence, to overcome his remorse, and to lessen his toil. But you, young lawyer, cast aside this epigram of resignation, this enervating drug; burn the page where it is written, and when you take a case that seems just, work fervently with the conviction that by faith in justice you will succeed in changing the course of the stars, regardless of the astrologers.
     A client who has gotten himself in real trouble wants to test me to see whether I become judgmental once I know the real bad things he has done. It has been described by a chemistry class word—titration, where liquid is released drop by drop from a long tube. The client first discloses a minor infraction of the law. He watches to see if there is a reaction. I show no emotion. He tells me of another more serious infraction. Still testing.

I usually have a pretty good idea of what the last drop will be about. Before the next meeting I titrate over to 18 U.S.C. § 1001, the false statement statute, and 18 U.S.C. § 1512, the obstruction statute, both of which are beloved these days by prosecutors.

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