The Spice of An Experienced Lawyer

I stumbled across a thread on twitter the other day, apparently stemming from Neil Katyal’s representation of Epic Systems. The problem was Katyal was supposed to be on the good side, and here he was on the bad side, proven by Justice Gorsuch writing the majority opinion. Everyone knows Gorsuch is bad because he stole his seat from Merrick Garland. And Epic was the greedy capitalist employer, and downtrodden employees are the good team. Yeah, it was all that simple and obvious.

One of the twitterers took the progressive position, while the other was more conservative. The scope of the argument ranged from the acceptability of representing bad people because one had no choice versus never representing bad people under any circumstances, because morality. It wasn’t about duty or responsibility. Not about integrity or principle. The scope of the argument was over privilege.

You see, public defenders, junior associates and the ACLU could be forgiven their trespasses because they had no choice to refuse to represent horrible clients. But if you had the privilege of refusing representation, then the choice of representing a client tainted the lawyer with the awfulness of the client.

Ironically, the retort was that even the ACLU learned, as reflected in its post-Charlottesville disavowal of constitutional rights for bad people. I briefly considered jumping into the argument, but realized it was like trying to teach a pig to sing. It occurred to neither side that lawyers aren’t moral arbiters of their clients’ causes, but just law-talking guys. And this was about as diverse and deep as the thought got, common ground in condemning privilege.

The issue of morality isn’t new, but when someone who lacked the slightest grasp of what being a lawyer meant spewed such nonsense, more seasoned lawyers would explain that it had nothing to do with our job.

As an aspiring criminal defense attorney, the moral dilemmas that I will inevitably face trouble me. Especially in the arena of litigation, it seems to me all attorneys experience some degree of moral conflict at one point or another regardless of whether the trial involves a criminal or civil matter. And so the ultimate question is how does a criminal defense attorney in good conscience represent the guilty? And by the same token, how does a civil attorney in good conscience represent the wrong?

The underlying ignorance was swiftly, perhaps too harshly but swiftly, put to rest. But that was almost a decade ago, before the meek inherited the internet. Back then, the question was whether a young lawyer was worthy of the time of a mentor, whether they had the building blocks of a lawyer or should have been handed a dime. Many wanted validation, not mentoring. They couldn’t bear the possibility of being told they were wrong about something, or being told in a way that didn’t praise their worthiness for not dripping snot from their nose when they spoke.

Today, young lawyers have no need of experienced lawyers to mentor them. They already know everything, and demand that their opinions be respected. They have reddit and twitter, Instagram and Facebook, to gather the requisite likes to be certain that they’re clearly on the right side. Even Carolyn Elefant says so.

Why Today’s Seasoned Lawyers Shouldn’t Mentor Newbies

It’s possible you’re not as wise as you think you are.

Switzer took seasoned lawyers to task for their failure to mentor the next generation. But Switzer’s criticism presupposes that an experienced lawyers’ mentorship carries great value. Spoiler alert: it doesn’t. Over the past decade, technologic, economic and social forces have so transformed the legal profession that the worldview and wisdom of Boomer and GenX lawyers hold little relevance.

Now, I realize that every generation suffers from delusions of exceptionalism, believing themselves so utterly distinct from their elders as to render any advice meaningless. But today’s generational divide is different.

Carolyn goes on to explain that “seasoned” lawyers can’t tell newbies how to get followers on twitter, and she has a point. Why we’re not fans of unbundled services and don’t realize that the rules of professional conduct stifle innovations like ignoring jurisdictional limits or having a physical office. And, of course, lawyers discriminate against women and won’t give them special treatment to compensate for their issues.

She’s right, of course. There is a very good chance that we won’t tell young lawyers what they want to hear, about how they can use the internet to deceive potential clients, how ethics are used to keep young lawyers down or how to get likes on Instagram. No, we’ll talk about integrity, competence and hard work. We’ll speak to their duty to represent their client zealously, and to put their client ahead of their convenience. Maybe we’ll even explain why Neil Katyal shouldn’t be condemned for representing Epic, even though it’s literally Hitler so he must be too.

Who wants to hear that? Who needs to hear that?

Judge Kopf, in his inimitably humorous way, gave some advice to young lawyers. Many failed to grasp what he was saying, presumably because they have no clue what humor means if it doesn’t involve a kitten. I mentor a few young people, but I choose them cautiously. If they want to learn how to game Google, aspiring to the wisdom of Adrianos Faschetti,* I am not going to be the right old lawyer to mentor them. And they are not going to be the right n00b for me to mentor.

I’ve heard all the angry names shouted at me for my lack of sensitivity to the feelings of the new generation. I’m a mean, crusty curmudgeon. But making excuses is not a superpower and it’s the only thing most young lawyers seem to do well. There are smart, tough, principled young lawyers out there, but they are now part of an ever-decreasing minority. They don’t mind a spicy old lawyer telling them to work hard, think hard. The kids arguing about Neil Katyal’s morality may get more likes, but they will never be as good a lawyer as he is. Not even close.

*Faschetti, along with disbarred lawyer Grant Griffith, wrote at Blog For Profit, where he uttered the classic slackoisie advice, you are what Google says you are.”

 

8 thoughts on “The Spice of An Experienced Lawyer

  1. Richard Kopf

    SHG,

    News flash: Lawyers have to eat and life is nasty, brutish and short.

    Thus, the principle that “if you can’t afford justice you don’t deserve it” are words to live and practice law by. Once that notion is firmly established as an operating principle, and the lawyer is able to dine regularly, baby lawyers might be surprised to learn what old-fashioned lawyers like you, our mean-ass host, quietly do for those who can’t afford to help themselves.

    However, I don’t wish to be misunderstood. Neil Katyal is literally Hitler, Well, maybe more accurately, Stalin. Actually, now that I think about it, he may be the living embodiment of the Clinton Foundation. As I grow old, I get so confused sometimes.

    All the best.

    RGK

    1. SHG Post author

      I once did a highly-scientific survey of people who found me on the internet. I got one case per thousand calls. On the other hand, if I wanted to be the world’s busiest pro bono lawyer, I would be #winning. I went to the supermarket one day and tried to pay for food with the love and adoration of my twitter followers. It was at that moment that I wished the Clinton Foundation, or Soros, or the Koch Bros. were there to make up the difference. Any of them will do when you’re hungry.

      1. LocoYokel

        When is the last time you went to the supermarket rather than giving the maid a list and telling her to go?

  2. B. McLeod

    So, Carolyn is going to be shutting down her blog, then, as it would seem to have no point?

  3. Jim Tyre

    When I was with a firm and a baby lawyer was starting, a variation on this memo would be waiting for the noob on his/her/their first day. These days, I’m not so sure I could do that.

    MEMORANDUM

    TO: JAS

    FROM: JST

    DATE: JUNE 1, 1994

    CASE/MATTER:

    RE: Lesson Number One: Always Check Your Facts

    See Minasian v. Sapse (1978) 80 Cal.App.3d 823, 825:

    In July 1971, Minasian instituted a municipal court action against Sapse to recover $300 owed as attorney’s fees. On August 12, Minasian received the answer, counter-claims and cross-complaint filed by Sapse in which it was alleged that Minasian’s process server had acted in such a way that Sapse’s wife, who had recently undergone surgery, was agitated and emotionally shocked so as to cause her to be in a severe state of hypertension as a direct result of which she died. Sapse claimed damages for wrongful death in the amount of $50,000. Minasian was emotionally distressed by these allegations. On August 16, he received notice of motion for an order allowing amendment of Sapse’s pleadings to show that his wife had not died….

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