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Washington Lawyer

Legal Spectator: Envy on 5th Street

From Washington Lawyer, May 2009

By Jacob A. Stein

Legal Spectator

It has been said that envy is the one deadly sin to which no one readily confesses. …It seems be the nastiest, the most grim, the meanest. . . .
—Henry Fairlie

I wish to confess my own first pang of professional envy. It was a sunny spring day in 1949, and I was standing on 5th Street across from the courthouse, chatting with a few lawyers whose specialty was small-time criminal work.

The leader of the criminal bar in those days was Charlie Ford. He got the pick of the criminal cases, mostly made up of gambling, occasionally a murder case, and anything else that needed immediate attention.

As we stood there, we saw Charlie drive south on 5th Street in a white convertible Cadillac. Sitting in the front seat with Charlie, for all to see, was the chief of police.

For those of the criminal bar, a connection with the chief of police was the best advertisement there was. We were all envious. Charlie was obviously a man of influence.

The Oxford English Dictionary defines influence as “the capacity or faculty of producing effects by insensible or invisible means, without the employment of material force.” Charlie was within that definition.

Our envy was assuaged by the fact that Charlie was exceptionally good in the courtroom. He was quick to exploit a prosecutor’s blunder, and he turned in some clever, on-the-spot closing arguments. You cannot be too envious of someone who is just plain better than you are.

Allow me to distinguish envy from jealousy. As I understand it, jealousy is when someone takes something you think is yours. Envy, on the other hand, is wanting something that somebody else possesses. We wanted Charlie’s big white Cadillac, and we certainly would like to have been riding around with the chief of police.

Envy really took hold in the legal profession when lawyers were permitted to advertise in a big way.

The American Lawyer stirred up envy when it published what partners in the big firms were making. When the partners’ takes were first published, the partners did not like it. They were concerned that somebody in the firm had leaked the information. As time went by, the partners decided it would be a good idea to make public the shares, and overstate them a little. It would stir up envy and attract partners in other firms looking for a place to bring their business and reap a better reward.

The American Lawyer also published articles telling who was getting the clients, who was winning and who was losing, and who was leaving Firm A to go to Firm B. The legal journals in the big cities followed its lead.

Sideline industries sprang up proclaiming that this or that lawyer was the best. A plaque is offered for sale to the honoree to decorate his or her office, and the encomium is noted in the lawyer’s list of accomplishments.

Potential clients caught on to what the lawyers were doing and invited law firms to bid against each other for work. When a firm competes in this fashion, it may signal to the potential client that whatever the potential client wants done, the law firm will not stand in the way of getting it done. Advertising for business weakens a lawyer’s independence. It deprives the client of advice that it may need to keep it out of trouble.

Comparing one reasonably competent lawyer to another is imprecise and subjective. It is comparing one singer to another. It is different for athletes. In baseball, for instance, there are batting averages. In law, a contrived reputation serves as the batting average.

Years ago a partner in a firm knew that once he became a partner, he was with the firm for good, whether or not he brought in additional clients. Compensation increased in step with other partners at the same level. He did not compete with his partners. Nowadays there is competition among the partners. This stirs up envy. Why is she making more than I am when, in fact, I originated more business than she has? Why doesn’t the firm recognize who I am? Look at my academic background. Look at my skills as a lawyer. Doesn’t that count? Don’t I have a right to be envious?

Most of the lawyers I have known were and are not burdened with envy. They have a good sense of humor and a belief that whatever talent they have is a protection. One of these, Leo McGuire, took satisfaction in listening to a client’s problems and then trying to untangle them quickly. He graded himself on whether he could do it by a telephone call or by finding a helpful statute. He is not around anymore, I am sorry to say, to help people facing a foreclosure.

Another, Jean Boardman, was a divorce lawyer. He told me he held the record for not yawning (even once) while listening to a client, hour by hour, defaming his or her spouse. He took satisfaction in committing to memory all the divorce law. He enjoyed making lawyers envious of him.

Although my envy commenced with Charlie and the white Cadillac, I have had a number of pangs since then. Why didn’t I get the client that X got? Why didn’t I win that big case? Why was I overlooked for that assignment?

I have learned to put up with a pinch of envy, relying on the laws of induction. Good luck and bad luck run in streaks. Nobody has a permanent advantage over others. A cheerful cynicism is another protection. It fits into our worldly philosophy known as the practice of law. As Noel Annan put it: “Worldly in the best sense of the word. Casting a sagacious, penetrating but yet indulgent eye upon the frailties and follies of our friends.”

And of course, on ourselves.

Reach Jacob A. Stein at jstein@steinmitchell.com.