A Brain Not Even A Zombie Could Love

// People often ask where I get my column ideas. My editor, Staci Zaretsky, cites the late Nora Ephron for the sentence “Everything is copy.” Never has that been truer than reading the story in the Los Angeles Times about how the City of Los Angeles will have to cough up a million bucks to a former veteran deputy city attorney because of disparaging emails about him among colleagues in the Los Angeles City Attorney’s Office. I am not making this up.

Haven’t we all told clients not to send any emails that could end up in print or elsewhere? Haven’t we all preached the issue of discoverability and what could and does happen? Just about everything is discoverable these days and apparently neither work product or attorney-client privileges were available. I wonder what these lawyers learned in law school about discovery.

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Moral of this story: don’t badmouth a co-worker. And for crying out loud, if you absolutely must badmouth a co-worker (never a good idea), don’t do it in writing.

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Let’s stipulate that we are all stupid, all of us, from time to time, and for some people, more often than they’d like. We lawyers make all kinds of stupid mistakes, from screwing up on court filing deadlines, forgetting to calendar something, or trying to put the blame on support staff (don’t ever do that). We all have stupid moments, judges and lawyers alike.

I don’t know why judges think that they can get a pass on being stupid. Judges can and do make stupid rulings, which is why there are appellate courts to tell them when they have been stupid, and higher appellate courts to tell the intermediate appellate courts when they have been stupid. But right now, I’m not talking about legal issues, I am talking about judgment, or lack thereof, and how judges get themselves into trouble when they “ready, fire, aim.” The same holds true for lawyers. We think we should know better, but we don’t. We open mouth and insert foot; we tweet without thinking.

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Why is there any difficulty in understanding what the N-word means? A judge in Washington state said she used the word because she thought that court employees in a Zoom meeting might have been confused as to what she was referring to. Really? How could there be any confusion by any sentient person about the meaning of that word? And yes, she’s still on the bench, but it’s not clear whether she will run for re-election. She did have the decency to resign her position as chief presiding judge.

In fairness, it’s not just judges who are stupid when they open their mouths, it’s lawyers, too. A lawyer who called a judge an a-hole at a holiday party is being disciplined for what amounts to “conduct unbecoming.” The woman lawyer was intoxicated, a polite work for “drunk as a skunk.” Apologies to all the skunks out there. Is there any First Amendment issue being chilled by the discipline? Nope, not according to the majority opinion by the Ohio Supreme Court which meted out a stayed six-month suspension with some terms and conditions attached.

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Moral here: if you are going to use such descriptive language about a judge, and we all have been either tempted to do so or have done so, do it privately. No PDOD, no public displays of derision.

A “seasoned” lawyer in the 7th Circuit failed to convince the court to set aside $17,000 in sanctions against him for arguing baseless personal jurisdiction claims and for discovery jerking around (I just made up that term, but I like it) by providing evasive answers to what the court considered reasonable discovery requests.

The attorney claimed that the sanction was demeaning and too harsh. If he’s that “seasoned,” then he should have known that his conduct would have consequences.

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The public often sees lawyers as “gunslingers,” duking it out at the O.K. Corral, aka the courthouse. That may become a reality for lawyers in Kentucky, as Kentucky lawmakers have approved a bill that would allow lawyers licensed in the state and who have concealed carry permits to carry guns in court. Swell. Just what we need. A Kentucky state senator said that lawyers should have the same right to protect themselves as prosecutors and judges. Will rulings on evidence be greeted by pistol brandishing or worse?

And while some corporate clients remain joined at the hip to their Biglaw lawyers, that may not always be the case going forward, and, as a result, the reluctance of clients to sue their Biglaw firm lawyers may be dwindling. A partner at a Biglaw firm pointed out that it’s not just a matter of less loyalty, but more client expectations, even unreasonable ones, especially in transactional matters. If there’s no long-term relationship, then clients may well be willing to roll the dice in a malpractice matter.

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The old advice still holds true. The lawyer-client relationship is a relationship, but it’s our job as lawyers to temper expectations with realities. And the reality is that today, loyalty doesn’t pay the malpractice insurance premium.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

Biglaw, Jill Switzer, Lawyers