Ethical Issues- No Time to Start Thinking About Them Like the Present

03/13/2010

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Since the publication of "Law School  Labyrinth- A Guide to Making the Most of Your Legal Education" (Kaplan Publishing/ Simon and Schuster, 2009) I have been asked: "What are the differences between law school and law practice?"  Of course, there are numerous differences, but probably the biggest thing that comes to mind is that the stakes in practice are so much higher.

It's easy to dissect a legal opinion and come to conclusions in the abstract.  But when you begin to realize that the parties involved are real people with real problems, the stakes become infinitely higher.  In law school, much of the work you do is abstract and theoretical.  And I found it very stimulating and even fun to engage in the collegial debate and analysis common to law school and law students.  But in law practice, you are representing real clients.  The advice that you provide will have real consequences.  In law school, about the only measure of accountability is your grade point average.  In law practice the measure is the effect that you have on people's lives.

Which brings me to the point of this blog post.  The law school curriculum spends a great deal of time teaching students how to "think like a lawyer."  And by the way, this is a critically important skill for lawyers.  You will take numerous courses that test your ability to adapt your thinking skills to different situations, different laws and regulations.  If you decide on a specialty in law school, you may take numerous courses that fine-tune your skills in that particular specialty.

But when it comes to ethical issues, in general, you will probably only take one course.  In my own education, I actually had two courses; the basic ethics course that all law students take (generally in their second or third year), and a corporate practice ethics course.  The basic ethics rules for most jurisdictions are very similar.  You should visit the ABA website, at http://www.abanet.org/cpr/mrpc/mrpc_toc.html which provides an outline and the model ethical rules.

By the way, this is not intended as a criticism of law schools.  The ethics rules are pretty straightforward.  And in many cases, you probably already have a good idea of what they look like.  We all bring with us to law school and law practice personal ethics which generally translate well.  Further, in order to obtain your license to practice  law, you are required to pass an ethics exam, called the Multistate Professional Responsibility Exam, which is comprehensive and covers the landscape of legal ethical issues.  (see http://www.ncbex.org/multistate-tests/mpre/).

But the purpose of this blog post is to encourage you to begin thinking about ethical issues now.  This is because the dilemma with ethical issues is that they can often  be so subtle, that we find ourselves in the middle of them with no warning.  In the case of other legal issues, generally the firt thing a lawyer tries to do is spot the issue.  Once you determine the contractual issue or the tort issue, or whatever it is, you review the rules, apply the facts at hand to these rules and begin to solve the problem.

But with ethical issues, you may be in the middle of something in which an ethical issue is raised before you even realize it.  There are all kinds of ethics issues that arise, from conflicts in representation, to conflicts in interest, to attorney communications, and  numerous other issues.  Some of these issues are intuitive, but others are more complicated and require deeper thought.

This means that your basic ethical framework must be well in place long before the issue arises.  Think of ethical training and preparation as a sort of vaccination against ethical illness.  By understanding the ethical rules and working through ethical problems in the safety of the classroom (or your own theoretical mind), you will go a long way to avoid finding yourself in the middle of an ethics problem.

I am convinced that many people get into trouble not because they intended to, but because they simply didn't think enough the situation before they acted.  In the case of ethical issues, there is often not a great deal of time for aforethought.  This is why developing your ethical framework long before a situation arises is so critical.  You will be able to navigate your way through treacherous waters, guided by this framework.

A good way to get an idea as to the kinds of ethics issues that lawyers face in the real world is to read a bar journal.  I subscribe to the Texas Bar Journal (http://www.texasbar.com/Content/NavigationMenu/Publications/Texas_Bar_Journal1/Texas_Bar_Journal.htm) which is published on a monthly basis.  The TBJ includes a section on attorney discipline.  Ironically, it's right next to the obitiuary section.  Regardless, this section describes sanctions imposed upon lawyers who are charged with ethics violations.

I suggest that you begin to develop your own ethical frame today, alongside the rest of your legal studies.  Familiarize yourself now with the ethics rules.  Begin to think about the cases you read and issues you work on, in terms of the lawyer  ethics involved, in addition to the "black letter" law and IRAC (issue, rule, analysis, conclusion).  Whether the professor ever brings up the ethics issues and regardless of whether you are ever tested on them, you need to begin thinking about them now.  It will pay dividends in terms of stress avoidance when you are licensed and in practice.

I wish you much success in your legal career.  Whether you are planning to take the LSAT, or the bar exam, and everything in between, I know that you will  make it.  You will become a lawyer.  You just will.
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Hang In There- Better Days Are Coming

01/23/2010

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When I was beginning my preparation for the Texas bar exam a number of years ago, one of my classmates made a comment that became the genesis of the idea for my book "Law School Labyrinth."  She said, "You know, all it really takes to become a lawyer is patience."  Naturally, I was curious about her comment and asked her what she meant.  She replied, "From law school applications to passing the bar and everything in between, if you're willing to just keep at it, you can become a lawyer.  There are so many gateposts to the process if you just hang in there, you eventually  will cross the goal."

That simple conversation really does sum up the process of becoming a lawyer. 

I certainly don't want to take anything away from anyone who has gone through this process.  There is no question that law school is one of the most demanding programs, the bar exam is one of the most difficult tests, and the practice of law is one of the most challenging professions.  And some of the lawyers  I have encountered along the way are simply some of the smartest people I have ever met.  I deal frequently with outside counsel (I am the general counsel of a corporation) and I am often amazed with their creativity and insight, and especially with their expertise in a particular field of law.

But there are different kinds of intelligence.  I believe that just about everyone has brilliance.  Maybe yours is rocket science.  Maybe it's cooking.  Or perhaps you can work Sudoku puzzles in record time.  I used to think that in order to become a lawyer, you had to be brilliant.  Starting with the percentile rankings of the LSAT, we are conditioned to rank ourselves in terms of performance against our peers.  In law school, the grading curve can be brutal, forcing law professors to make marginal distinctions between "A" exams and "C" exams.

And intelligence, without action is pretty much worthless.  Brilliant people who do not apply themselves can end up homeless.  And less than brilliant students can make "A"s if they work hard enough. 

The irony of law school is that hard work may or may not result in "A"s. Intelligence also does not ensure top grades.  As I discuss in "Law School Labyrinth-  A Guide to Making the Most of Your Legal Education" (Kaplan Publishing, 2009), success in law school certainly requires hard work.  It also requires at least a certain degree of intelligence.  But really successful students either intutively (or perhaps with some good guidance from Lawyer Mom or Dad) understand that law school simulates the practice of law.  So the succeed, the student has to be able to solve legal problems in a lawyerly way-  through cogent analysis, identifying and discussing all sides of the issue and law, and doing it in a clear and effective way.

But law school is only the beginning of the labyrinth.  You must also obtain your license to practice law-  from the character and fitness requirement, the Multistate Professional Responsibility Exam, and what will probably be the most demanding test you well ever take, the bar exam.

Which brings me to the point.  If you are facing the LSAT and struggling with Logic Games, the following applies to you.  If you are in your second semester following a mediocre performance in your first year of law school, the following applies to you.  If you are facing what appears to be the Herculean task of the bar exam, it applies to you.  And if you are a first year associate, intimidated by the thought of actually practicing law, listen up.

The study and practice of law are simply a labyrinth of sorts.  They are a winding journey of opening and closing passages, full of intimidation and discouragement.  But don't be discouraged.  In this labyrinth, if you want to find the Minotaur, simply look in the mirror.  You are your own worst enemy. 

If you had a bad LSAT, you have two choices.  You can either pick yourself up and go at it again, or you can give up on your dream of becoming a lawyer. 

If you don't get into Dream Law School, you have two choices.  You can go to Local U, or you can give up on your dream of becoming a lawyer. 

If you just graduated and can't find a job, you have two choices.  You can give up and go home, or you can keep sending out resumes, searching the net, and making calls to law firms.

Wherever you are in your journey through the Labyrinth, you have a choice.  You can keep pushing or give up.  But I am here to tell you that if you want to become a lawyer, you can.  A door closes, two windows open.  Climb through one.  But if you want to become a lawyer badly enough, you will.  You just will.

Best wishes in your legal career.

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Law Students and the \"Character and Fitness\" Requirement for Lawyers

09/04/2009

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In order to be admitted in a jurisdiction and obtain a license to practice law, candidates must demonstrate that they possess the requisite "character and fitness", as determined by the licensing authorities.  Since writing "The Law School Labyrinth-  A Guide to Making the Most of Your Legal Education"  I have been asked by law students about this requirement.  Because there is a fair amount of mystery inherent in the process, I imagine students who have pecadillos in their past (or worse) worry about a catastrophic result-  surviving three years of law school, only to be denied a law license.

At the outset, I want to make clear that I have no inside information regarding bar admissions, other than my own experience in the process.  As a threshold matter, I would encourage you to always honestly and candidly deal with any issues in this regard with the bar authorities.  Additionally, most have comprehensive websites, complete with the underlying statutory authority upon which the requirements are based, and that you should consult, in order to evaluate your particular situation. 

As part of your bar examination process, you will be required to fill out an incredibly comprehensive application (most likely, complete with a fingerprint card).  The application will take a fair amount of time to complete and require information that you may or may not have at your fingertips.  So, as will all things law school, be prepared to spend a fair amount of time on the application, and do not wait until the last minute to begin the process.  This application will become the basis by which the bar examining authorities will investigate whether you have the requisite character and fitness to practice law.

But you should also know that bar authorities are also understandably unwilling to prognosticate as to your ability to ultimately receive a license.  There are too many variables involved in the calculus and until the actual character and fitness investigation is completed, it would be extremely irresponsible to say, for example to a candidate that a particular incident in high school would not prevent them from obtaining a license.  That incident would be weighed against a variety of factors, which can only properly be weighed in the context of a variety of other factors-  age at the time of the incident, recency of the conduct, evidence of rehabilitation, other incidents, etc.

For most new lawyers, about the only other license they've had is a driver's license.  As with a law license, the ability to drive is a privilege and not a right.  In other words, the presumption is that you should not be allowed to drive; you must overcome this presumption by showing that you have the necessary qualities to operate an inherently dangerous 3000 pound machine at seventy miles per hour.  With a law license, you are entrusted with something of even greater risk-  people's lives, and you must show that you are capable of such trust.

Obviously, you must show that you possess the minimum competency to practice law.  You do this by passing an extremely lengthy and difficult bar exam.  But, as a threshold matter, before you are even allowed to sit for the exam, you must show that you have the fundamental character and fitness required of all lawyers.  You do this by submitting to what is essentially a comprehensive background check administered by the bar authorities and their designates.  This application is available in many jurisdictions online.

What is the requisite character and fitness to practice law?  Different jurisdictions define it in different ways, but the core of the definition is what you would expect it to be:  honesty, trustworthiness, diligent and reliable, in order that the lawyer in question can be entrusted with a clients affairs, as well as the operation of the legal system (see, e.g. the Minnesota Board of Law Examiners website, http://rly.cc/aFf7i).
 
Generally, the bar admissions authorities look at whether a candidate has a history of dishonesty, unlawful conduct, academic misconduct, neglect of financial responsibilities, misconduct in employment, violation of a court order, emotional instability or drug/alcohol dependence, in making the character and fitness determination (see, e.g. the Texas Board of Law Examiners website, http://rly.cc/ojWZL).

The single, best piece of advice I would offer is that you should be absolutely, painfully and completely candid and honest on the application.  As most bar examiner websites indicate, an "incident" that you disclose may or may not be evidence of insufficient character, however, a lie iwould be.  So the lie becomes worse than the incident itself.  Additionally, it behooves you to read the application very carefully, which after three years of law school, should not be a problem for you.  Make sure that you answer every question completely; one can lie not only by comission, but by omission.  As a lawyer, honesty is the cornerstone of everything that we do.

If you have concerns that something in your background could be problematic, refer to your state bar's website.  Review the rules and regulations regarding admissions.  If you think you have a big problem, there are lawyers who deal with these types of issues; consider consulting with one. 

Regardless, and at the risk of over-generalizing, probably the most important conduct is that which you engage in for the next three years (remember that the requirement is typically whether you posess the "present character and fitness" to practice law).  There really isn't much you can do about that pecadillo in your past, other than put as much temporal distance between you and it as possible.  Instead, you should focus on how, going-forward, you can be the best person you can be.

I offer the following suggestions for you to consider throughout your law studies, as "preventative" measures, and in the hopes that you will avoid the worst of all scenarios-  a problem that occurs while you are in law school, that either delays or prevents you from obtaining a license:

1.  Alcohol abuse-  Law school is stressful, and unfortuately, there is an abundance of opportunity to abuse alcohol.  Friday night "Blackacres" and the like, with low-cost beverages, which may seem benign (because "everyone's doing it") could  result in a law student's DUI and public intoxication charges.  Worse, repeated use of alcohol to deal with stress avoids the problem itself, and may set you up for progressively worse and perhaps even a lifetime of alcohol abuse.  This abuse can lead to a myriad of other problems- client neglect, marital problems, health problems, the inability to focus, in short, issues you do not need to be dealing with, while working in an extremely demanding field.

2.  Social Networking Websites-  Internet "anonymity" has created huge problems for an entire generation of bloggers, Facebookers, MySpacers and Twitterers.  Internet relationships create the illusion of anonymity and yet intimacy that tempts people to do and say things that they otherwise would not (say, for example, in a church study group).  As a result, people post things on the web that they later regret.  Unfortunately, the internet is forever.  Anything you post goes into a server somewhere, waiting to later come back and haunt you.  Regardless of what you may have posted in the past, consider cleaning up your blog, website and social networking sites.  Some jurisdictions such as Florida, have announced that they will consider social networking sites as part of their character and fitness analyses.

3.  Law School-  Don't cheat.  Don't plagarize.  As simple as it may seem, every year some promising law student does something stupid enough to get thrown out of law school.  Your law school probably has a Code of Conduct.  Make sure you understand it and honor it completely.

4.  Fiscal Fitness-  Pay your bills when due.  Don't overextend yourself financially.  Your credit history will likely be a part of the character and fitness examination.  As a lawyer, you may be entrusted with your client's money.  If you cannot manage your own, it is unlikely that you will be able to manage others' money.

5.  Obey the Law-  As a lawyer, you are expected to uphold the law; both the big laws and the little laws.  Now is not the time to get into fistfights, steal or do other similarly adolescent things, that to many are innocent pecadillos.

And if you want to maximize your law school experience, be sure and read my book, Law School Labyrinth- A Guide to Making the Most of Your Legal Education (Kaplan Publishing, March 31, 2009).




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