During oral argument before the New York Court of Appeals this week, I contended that lawyers sometimes do things for other than mercenary motives. The reaction broke my heart. After a chuckle all around, the chorus was, “No, seriously.” It was dismissed out of hand and never considered again.
While not a critical component of my argument, it mattered to me. My position was the lawyers write about the law for reasons having nothing to do with marketing. For those of you who have seen some of my anti-marketing posts, this will come as no shock. That it was considered an outlandish position by the judges of New York’s highest court does. At least to me.
In preparation, I had a list of reasons why a lawyer might write for reasons other than marketing. I also had a list of comparables, like judges who write about the law though they certainly aren’t looking for more business, and public defenders who do so even though more business is the last thing they need. Law professors would fall into that category, but only after they’ve gotten tenure. The newer ones need to prove themselves by writing, so they don’t count.
I never had the chance to go to my list. I tried. I started to recite my reasons, but was immediately cut off. To the extent that any play was given the notion at all, it was to suggest that sheer, monumental ego might push a lawyer to write something without visions of a cash register on the other end. It was still pejorative, as if the flip side of crass, mercenary motives was crass, overblown ego, with absolutely nothing in between.
With regularity, lawyers approach the blawgosphere in exactly the way that marketers tell them. The framework of their efforts is guided by SEO and potential client palatability. When I’ve done panel discussions on “how to blog,” the questions are rigid and silly, such as, “How many posts a week do I need to do to get clients?” I want to tell them to post as frequently as they beat their wife, but I know they won’t see the irony in my retort.
It would be one thing for the lawyer cabal conspiracy theorists to posit that we are all about money, since they see nothing beneficial to come from our existence. But these are judges. Judges! And they think no better of lawyers than rug salesmen. Maybe even worse.
There are some lawyers who write for the primary purpose of self-expression, because they have thoughts every day and feel compelled to put them into words because that’s how they express themselves. They enjoy the conversation, at least when it doesn’t get too stupid. There are some lawyers who feel distinctly dissatisfied with the limitations imposed on their efforts by courts and clients, and look for a more efficacious means of fulfilling the purposes that drove them toward the practice of law. They have things to say, and their ability to say them within the framework of a law practice is unfulfilling. And so they write.
There are some lawyers who do their writing on a blawg. If one was to read the blawg, the inescapable conclusion is that they aren’t writing for the purpose of marketing themselves. If anything, as my buddy Norm once noted, the blawg would scare clients away if anything. Clearly, marketing could not be their purpose. But if not marketing, then what?
The reaction by the judges of the New York Court of Appeals is my nightmare. What I do cannot be, from their perspective. Or at least, is so very far from the norm that it would require special dispensation from the rules that find our profession. If the judges, men and women who have no horse in the race, are so jaded as to the motives of lawyers that they believe it ridiculous to suggest that some of us might actually have “pure hearts,” a characterization offered as an assumption during the argument, then we have realized the worst fears of our critics.
And I, for one, find myself wholly disconnected with my profession, for I refuse to accept that there is no possibility that any of us have “pure hearts.” And I will continue to fight those who push lawyers to serve their lowest instincts.
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Hmm … I know you have a policy here about getting too far in to the details of cases you handle, but any chance you could let us know what this case is about, and/or how the issue of lawyerly motives arose in it?
To the extent I will get into it here, it was a lawyer free speech issue, and a position taken by my adversary was that no lawyer could publish non-anonymous speech on the law that was not, by definition, commercial, and hence a restriction thereon was subject to only intermediate scrutiny rather than strict scrutiny as applied to fully protected, non-commercial speech.
Yes, it’s a great irony I’ve observed before — that by becoming learned in the law and obtaining a license to practice law, lawyers (in the arguably official view) become less free than those unlearned in the law to speak about the law.
Sounds like an extremely interesting and important issue.
Amen. Just like not every corporate exec or dentist who blogs is trying to get more customers, not every lawyer who blogs is doing it for commercial reasons. In fact, as it stands now, I would bet that the majority of lawyers who blog aren’t doing it for (mainly) commercial reasons because my experience has been that people who blog just to get ahead don’t have the fortitude to actually continue blogging.
I started blogging because I realized how much I think about things every day that I don’t share with anyone. I get less then 5 readers per day (usually), but I keep going week after week because I love to write and I love to think about the law.
Here’s hoping that the mere fact that a person is licensed to practice law doesn’t relegate them to a status of lesser freedom with what they choose to say online.
Who is in the best position to know about corrupt and incompetent judges? Lawyers of course. Who will lose their ability to earn a living in their chosen profession if they share this information with the public?
Calling a judge corrupt if, of course, uncivil. Even when it’s true. Thus, it cannot be uttered.
I’m reminded of that case out of Pennsylvania. Every lawyer who appeared before a certain judge knew he was corrupt. No one could (or would) say anything. It’s a good way to lose your law license.
It’s easy for members of the public to say, “I’d speak out.” Really? How often do people speak out on an issue knowing they will be fired?
With lawyers, you don’t get fired from just one job. Open your big mouth and you’ll be fired from every law job – the practical result of disbarment or suspension.
So what incentive is there for lawyers to be anything other than mercenaries? Playing ball keeps food on the table. “Caring” can cost you your career.
Whether we are the majority or minority, I don’t know. That we exist is a certainty, but I suspect that we will always be tarred by the lowest common denominator.
There are many lawyers out there/out here who often act professionally for altrustic reasons. Certainly a minority of our profession, but an important minority.