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Washington Lawyer

Legal Spectator: Hours in a Library

From Washington Lawyer, December 2012

By Jacob A. Stein

Legal Spectator

The papers report that law firms are having internal problems. Rather than read the papers, I thought it better to get the opinion of an acquaintance of mine. He is close by in the park at Rhode Island and Massachusetts avenues. You know who he is. He is Daniel Webster, standing tall as he did when he was addressing the Court, standing tall with two law books in his right hand.

I took my usual seat next to him. I asked for his opinion on all this fighting among lawyers that is so destructive. Here is what he told me. There were two things causing the trouble. First, the lawyers themselves made the mistake of converting the general partnership into an LLP. That P is a trick shot of a partnership. It really should read LL Corp.

About 20 years ago, some Texas lawyers were sued for bad advice they gave the banks. The lawyers drafted that donkey called the Limited Liability Partnership. The Texans said they needed the corporate shield so their personal finances were protected, just like stockholders’. But they still liked the warm word partner. So they kept it. Other states adopted it. They liked that badge, LLP.

In times gone by, the word partner meant something different than it does today. Lawyers, real lawyers, would have been ashamed to hide behind the corporate shield. They were partners just as Justice Cardozo described what a real partnership is:

Joint adventurers, like co-partners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions. . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.[1]

It was all for one and one for all and agents for each other. As an aside, law schools do not require students to pay much attention to courses of partnership and agency.

That was Webster’s first comment.

The second thing Webster wished to talk about was that it was wrong for courthouses to close their law libraries, libraries that were needed. A good lawyer surrounds him– or herself with law books sitting there as friends. A lawyer does not get wisdom from a computer screen instead of a book. An impressive law book is like a good painting, but even a good painting needs a frame. Law is the same. The law should be in a frame called a book. Its frame is the binding of the book, the color, the type, the quality of the paper, and its general warmth.

Webster said that when a law library is in place, something happens for the good. It is the place where lawyers meet and discuss their problems, their expectations, their personal problems, and their law practice.

Just sitting in a library is a comfortable feeling of safety. The library is a lawyer’s home away from home. You can hide out. You can tell the librarian you cannot be reached.

Webster continued. He said this setting attracts Madam Fortuna, the goddess of good luck. If you try cases, you need luck. You need Madam Fortuna close by. She likes to be surrounded by law books. It would offend her if she used a computer screen. With that comment, Daniel Webster said he wished to end the conversation.

However, he asked me to do him a favor. He would like me to polish the brass plaque on the little office building at 5th and D streets across from the courthouse.

As I walked back to my office, I thought about the courthouse law library that closed down in the 1980s. It was the place to be, open all the time, holidays and weekends.

It was on the third floor with big windows to see the snow, to be used to get a continuance, as needed.

As you entered, there was a telephone and a sign saying “No long distance calls and no more than 10 minutes at a time.” Next to that, the Xerox copier, five cents a page.

The library filled up around three in the afternoon when the courts wound down. Jerry Collins and Henry Berger in the corner drafting releases in the case they settled. Al Ahern and Curtis Mitchell pleased with the fact that their murder trial ended in a mistrial.

One day I saw John Wilson, a leader of the Bar, piling up law books to be taken to court where one of his big cases was to be heard the next day. I saw him in action with the books. He put the law books, one on top of the other, on the rostrum, a big stack, each with a marker. Everyone thought they would topple to the floor with a big bang. As he spoke to the judge, Wilson picked up the book on the top, turned to the marker, read a few sentences. He then put the book on the other side of the rostrum. When he concluded with this theatrical presentation, he had moved all the books from one side to the other.

There is much more to be said, but I must now turn out the lights, as I am the only one left in the courtroom.

[1] Meinhard v. Salmon, 249 N.Y. 458, 463–64, 164 N.E. 545 (1928).

Reach Jacob A. Stein at [email protected].