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.”