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Legal Ethics

People I Met Practicing Law Episode Two: Ethically Challenged

Patricia was a good lawyer.  She knew her law.  She worked hard.  She produced billings. She brought in clients.

We all have character flaws.  Even me.  However, Patricia had more than most of us. She was uber competitive.  She liked to win.  She hated to lose.  Patricia and others saw these attributes as positives. If she had been able to keep them under control, they might indeed have been assets.  She was not, so they were not.  

Patricia was also a narcissist.  It is hard to spin that as a positive.

One day a senior lawyer at Patricia’s firm (“Max”) got an irate call from his biggest client (“John”).  John demanded to know what the hell Max’s firm was doing providing advice to a company (“Wrong Inc.”) in a dispute with John’s company (“Angry Corp.”)

Max’s first thought was that perhaps the conflict system had broken down and one of the lawyers at his firm had mistakenly taken on a file for Wrong Inc. against Angry Corp.  Max vowed to get to the bottom of things.

John forwarded an email to Max that he had received from Wrong Inc.  The gist of the email was that Wrong Inc. had received advice from its lawyer that Wrong Inc. was right, and Angry Corp. was wrong.  Upon scrolling down, Max saw that the lawyer who had provided the advice was Patricia.

Further investigation revealed that no conflict search had been done and no file had been opened at Max’s firm.  Furthermore, Max’s client was pretty well known throughout his firm, and it seemed unlikely that Patricia would not have recognized that there was a conflict of interest.

Even more investigation determined that Patricia had instructed a student do research on the matter and had told the student not to docket his time and not to discuss the matter with anyone else.

It seemed pretty clear to Max that Patricia, who had a deep-seated psychological need to be a hero to all of her clients, had simply ignored the ethical rules and sought to advise her client ‘behind the scenes.’  (Why she had not been smart enough to keep the discussions oral to cover her tracks remains a mystery.)

One would have thought that Patricia would immediately have been booted from Max’s firm.  However, Patricia went into spin control and convinced enough of the partners that she had not intentionally done anything wrong to keep her job.  I believe that her strongest argument had something to do with how much she billed and how much business she brought in.

You may not find it surprising to hear that having failed to attract any significant penalty for her behaviour, Patricia’s behaviour did not improve, and her ethical slips continued and became more serious over time.

The vast majority of the lawyers who I met throughout my career conducted themselves in accordance with the highest ethical standards.  Patricia was not one of them.

I also met just a few too many people who, while always acting ethically themselves, were hesitant to call out others whose ethics were a bit more flexible and situational.  Somehow it often seemed that true outrage for unethical behaviour was reserved for those whose departure from their firms would cause minimal financial disruption.

Back when I was a kid, we used to be taught that ‘cheaters never prosper.’    In the real world that does not seem to be true. Often the cheaters seem to get ahead while those who play by the rules come in a distant second, or fifth, or dead last.

If that is true, it is likely for the reasons that John Stuart Mill set forward when he said: “Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing because they do not want to disrupt the firm’s billings.”  Okay, I admit that I added that last part.

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