Some of the crazier, angrier people on the internet believe that there is a vast conspiracy afoot among lawyers and judges to cover up our failings, to conceal our wrongdoing. Sadly, these crazy, angry people are lawyers.
In a post plumbing the depths of incompetence by lawyers that still satisfy Strickland’s test for ineffective assistance of counsel (essentially limited to maintaining a post and occasional respiration), Gideon at A Public Defender included video number 4 of a drunk lawyer in Las Vegas.
While the video is quite interesting, the relevant portion here is the first ten seconds, where the judge says, “I have no desire to ruin your reputation.” The lawyer is defending a human being facing life in prison, not that a lesser punishment should make a difference, and yet the concern is for the reputation of the lawyer. If he appeared in court for trial drunk, or stoned, or in any way incapable of performing his duty to his client, his reputation deserves to reflect it.
The public has awfully good reason to hold lawyers in contempt, even though it’s often for the wrong reasons. Regardless of whether people think we’re overpaid, underworked or merely incapable of accomplishing magic upon demand, within the legal community, we understand what our responsibility is and when we fail to live up to it. If we sold women’s dresses, our failings would be cured by exchanges and refunds. But we’ve chosen a life that requires us to put the welfare of another ahead of our own, and we damn well deserve to have our reputations at stake every time we fail to fulfill our duty.
Why is this controversial? Because our very own brothers and sisters, at the bar or on the bench, assume a position that’s indistinguishable from one of the things we hate the most, the Blue Wall of Silence. We have the pinstripe wall of silence, where we ignore or conceal the failings of other lawyers.
Some rationalize this by claiming that it diminishes the legal profession to reveal, or worse still, affirmatively disclose, other lawyers doing wrong. We all look better if we sweep the ugly lawyers under the carpet, they say. It’s utter nonsense. We can certainly do our utmost to help those who fail to show either the competence or integrity to be a lawyer, but we lie to ourselves when we turn a blind eye and believe that it’s for the common good. The next client to lose his freedom, his fortune, even his life, to the lawyer rests on our shoulders because we were too cowardly to say or do something.
Over the years that I’ve written Simple Justice, I’ve named names and called out lawyers, generating no shortage of animosity from those who didn’t want anyone to know. My flank is more exposed than most, and there have plenty of lawyers who have disagreed with me, whether in specific instances or in general, for having broken the silent pledge of the brotherhood and revealed the secret underbelly of lawyering. For the most part, I leave it to others to decide whether my calls are right or wrong.
Yesterday, I was again called a bully and threatened with a lawsuit for defamation by a lawyer who is quickly becoming a caricature of Rakofsky-esque stature, Arthur Alan Wolk. It seems pretty likely that he’ll follow through on his threat, as he’s demonstrated his litigiousness if not his sanity in his latest, most bizarre complaint against the vast right-wing conspiracy he believes is out to destroy him.
Even frivolous suits are a pain in the butt, but that’s a risk one assumes when one undertakes to write about the law and do so without fear or favor. The choice becomes clear, to write the things that need to be written or hide from the challenge.
Over at Solicitor Brian Inkster’s The Time Blawg, he’s run a trio of posts testing the nature of blawging, rationalizing its virtue as a business development method without being overtly scumming and self-promoting in the process. The second post, I thought the Blawgosphere was a friendly place 
, reflects his belief that we can write about the law in a way that is interesting and informative, but without speaking ill of anyone or creating controversy that might impair our brother lawyers. Whether the purpose of getting clients is primary or secondary, Brian would have us keep our mitts off others so that we can all write, be happy, be fruitful.
Along with a few other lawyers, like Brian Tannebaum and Mark Bennett, who have been doing this for as long (if not longer) than I have, we seem like terribly mean, maybe even cruel, people. We keep writing things that impair the ability of others to earn money. When a lawyer shows up drunk for trial, our concern isn’t to protect his reputation. When a lawyer files an idiotic complaint, our concern isn’t to fear being sued. When a lawyer lies through his teeth, our concern isn’t to hold hands with him in the happysphere.
Lawyers have no qualms about calling out cops, prosecutors and judges for doing what we perceive to be wrong, but they are the agreed-upon targets and there’s no risk in attacking the mutually agreed-upon perpetrators of evil. In fact, it’s damn good business, since potential clients similarly despise those whom they perceive to be the sources of their misery. It’s not bold. It’s not brave. It may well be called for, but it’s not enough.
The second we shy away from saying what we believe must be said, we become the enablers and apologists for all that has gone terribly wrong with the legal profession and system. One recurring question about our system, that most of us feel has failed miserably to live up to its platitudes, is how do we fix it. While I have no magic bullet answer, there is one thing we can do in the meantime. Expose what’s wrong with the system, including the failings of our own, and face the consequences of being the most unpleasant person in the blawgosphere.
Or say nothing of consequence and never fear being called a bully by a litigious fool. This isn’t the way to win popularity contests or become wealthy and successful on the internet. You will have to go elsewhere to learn those tricks. But I’m a lawyer and I cannot ignore or conceal the wrongs done by other lawyers. You will have to decide for yourself who you are.
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Mr. Wolk puts me in mind of the Oregon disability attorney Daniel Bernath who was feuding with a local Social Security ALJ leading to a “wrestling” match at the Portland SSA District Office elevators. The late-blawg Bad Lawyer covered Bernath’s descent into the reputational trash can. I suspect that it’s Bernath who is leaving extended rants in the comments at that blawg’s post on the story. Bernath may well have had a legitimate beef with the Administrative Law Judge that ticked him off in the first place but his reaction was so dysfunctional that he ended up in front of a federal magistrate. It just never got any better for Mr. Bernath who at last check was still ranting and raving about his perceived-nemesis and the injustices inflicted upon him.
The problem with having a guy like Bernath on your case is that they just go on-and-on and cause ridiculous and expensive distractions if not actual injury. Several years ago an associate at my wife’s law firm (which was in the midst of a difficult firm break-up) called the local police on me ( a tenant in the suite of offices) for “trespass” and “theft” because at my wife’s telephone request I went into her office and removed a large can of popcorn sent to her by a client at the holidays. The responding officers were not amused when they discovered the circumstances relating to the alleged criminal activity. And yet, the crusade pursued by this associate continued at considerable financial and professional cost to us over several years.
Lawyers are a pugnacious bunch, disinclined to take a hurt and walk away. But in persisting in the fight to recapture lost dignity, lawyers tend to go on a downward spiral. Whether Wolk deserved the criticism that began his descent is no longer relevant; it’s how he’s handled himself since that has become the problem for him, and he’s hellbent on making it worse.
He’s not alone, as demonstrated by Daniel Bernath and many others. What they never seem to understand is that no one wins in this misguided quest for vindication, and that the harder they fight, the worse it becomes.
Excellent post. Deserves to be mandatory reading for every lawyer, and aspiring lawyer.
I am surprised that people can form such solid opinions of me and events from what a newspaper reporter writes.
I have had judge Hyatt tell me that he will continue my hearings five times “if I want to.”
Hyatt, “I have trouble with interracial marriages” as he denies a dying black man married to a white women his disability benefits.
Lies on his bankruptcy petition.
Lies in Court about 3 dozen times, under oath.
And yet, you for your opinion based on one newspaper article in a newspaper.
I never understood lawyers who betray their current client in the hopes that the judge won’t screw their future clients when they come before him.
There are other lawyers who actually do their job and fight for their client regardless of the cost to the lawyer.
Other lawyers have tried to deal with the out of control Hyatt-attorney L, sued to have Hyatt recused and fought all the way to the 9th Circuit. Another lawyer, attorney W has had Hyatt tell him, “in close cases I rule against a claimant if his lawyer is an asshole (like you are.)”
I’d rather honor my oath and without fear honor my profession by actually acting like a lawyer in front of tyrannical and mentally ill judges.
You apparently have taken a different course and the reputation of lawyers only being “in it for themselves” might have found another example.