Michael Sean Quinn, Ph.D, J.D., Etc.
In any case it will take a little while to get to the story.
I give lectures at CLE programs and some others on two general topics: insurance matters and legal ethics matters. Both of these are broad topics, but the second is broad in a special way, viz, the Bar counts legal malpractice, similar civilly actionable lawyer foul ups, and even lawyer crime committed as lawyers as realms of legal ethics. Lawyers who commit many sort of crimes while not being lawyers are probably violating relevant ethical principles upon which the conduct of lawyers can be judged ordinary and even philosophical ethics also fit into the category of legal ethics, as does jurisprudence. In addition, “ordinary” ethical principles just by themselves can help examine the ethics of lawyer conduct. So much for theory. I will come back to it.
It must be kept in mind that lots of legal ethics is quite boring from the point of view of what to read and what to hear about. At least some of the disciplinary or professional rules are quite idealistic; others are quite obvious; a few are more than a shade unclear. As every one knows, there are not separate causes of action for violating ethical professional conduct rules. At the same time, it must be kept in mind that violations of those rules can be used as evidence in cases regarding other, more loosely conceived, ethics matters, to wit, malpractice, for example. What is most boring about lecturing on or reading about rules of professional ethics is that they are usually obviously linked to a known written and established professional rule and there are only a few categories that produce disciplinary violations. These are such things as stealing the client’s money, running a Ponzi scheme, representing parties with contrary interests somewhere close in both topics and tied to a given case, “screwing over” a law partner, having sex with a client who is unbalanced (or at all in some jurisdictions), and a few “so forth/s.”
There was a CLE once where I was appointed to provide a whole 45 minute presentation on ethical matters in order for those attending the conference to get most of their ethics studies required by the supreme court out of their way. I had decided to begin with 10 minutes or so on the ways various parts of legal ethics fit together. I was then going to present a discussion of a recent–that year–very important supreme court decision from another jurisdiction, but one that was sure to make ABA-type headlines, such as they are, and one that was sure to have a high impact everywhere, whether explicitly or otherwise. That case was going to be the centerpiece of the next piece of the presentation–15 minutes or so–after the first 10 minutes or so. As is often done, the case to be discussed was to be attached to the CLE essay that was to be inserted into the CLE-binder.
I had a very close friend (“Friend” who was also a lawyer.) He asked me to help his then lover–also a lawyer–to start a climb of the CLE speaker level. Of course, given the status of my friend, I agreed to help them both out. I shall call the man who was his lover, Lover.
I often help friend. Still, I am occasionally gullible. In this case, I did not check Lover out. (I’m not sure it would have done any good, since Friend recommended him and I would have taken Friend’s word for it.)
In any case, I divided up the presentation with Lover half and half. I had obtained Committee approval for the topic, and I did a good deal of the planning, although I included Lover some. He looked for cases.
I divided up the topics, made the decisions as to who would do what, and verbally outlined what the whole presentation would look like. All this was done with Lover’s apparent involvement. Following all this, I sent Lover a very brief email on the really important topics and divided them up again, just as I had before, this time ever-so briefly.
Out of love for my friend, and at his request, I suggested that Lover go first. We both thought that would get more attention from the audience than if I took the first start. The organizational plan changed. The pure ethics section would be transferred to the end; he would explicate the case, after having given a short “This case is important for the whole country and hence in this jurisdiction” in 2 minutes or less, and then go on to an explication of the case. I was then to link up the case to other sources, such as two different whole books of the RESTATEMENT and then set out a major criticism of the case that had several dimensions. Finally, the presentation was to end with 10 minutes on pure legal ethics.
The whole event was a complete disaster. Lover started with 5 minutes on legal ethics, turned to the case, briefly set forth what he took to mean the essence of the case, argued that the case would not fit into our jurisdiction, and denounced the legal decision-making practice in the case’s jurisdiction of origin. The time allocations were to be equal (22.5 minutes more or less) and time devoted to various subparts were specified in advance.
He got almost everything wrong to some degree or other. He never looked up, read the lecture from a script, and spoke in a very soft monotone, with a slight British accent that I had never heard before. In addition, everything went to fast. His 5 minutes on legal ethics focused on the wrong principle and entirely neglected to provide in passing what the Comments said. He entirely ignored the facts and reasoning of the case, set it forth as a highly abstract rule he created, and then treated the soundness of the case by a lengthy discussion of a complex hypothetical. Lover took 33 minutes.
As I realized that was happening, I became angry first, snuffed it out, since the show must go on. I then quasi-panicked (“My god, what the f–k will I do.”) I then turned to wondering how I could fix the situation. I concluded that I could not fix it but might be able to lessen the catastrophe. And so I did.
“I want to mention Lover’s involvement in setting up the the presentation’s organization and for the lecture he just gave. Plainly, he had agreed to what might be the most important part of it. I should also mention how important it is to put that kind of assignment in the right perspective, and he certainly addressed the central part of the topic. I’m sure we all agree that reflecting on his complex hypo will reveal important results that we all need to grasp.”
“For my part, I will focus on how some of the objections may conceive or misconceive both the facts set forth there and the court’s reasoning. We may have assigned ourselves too much material to cover in a single 45″ slot, so please remember to read the X v Y case attached and see for yourselves how far off the mark it really is.”
All this took less than 2 minutes. I then gave a detailed exposition of the case. I asserted that this decision had an uncertain future but that some scholars and some practitioners think that X v. Y may revolutionize a piece of the law, over time. Of course, I said, “they may be quite wrong, even about the essence of the case.” Therefore, I finished, “you must pay careful attention to Lover’s account of the matter since he may be quite right.”
That’s it. The presentation was over. The last act was over. Audience reaction was flat. Out of the audience, however, came a picture. Out of a cloudy day time sky (not a night sky), came a picture Pegasus hurling downward at a steep angle. The horse was pictured jet black, wings and all. There were two riders, one in front of the other, the rider in the rear hanging on, for dear life to the man in the front, who had a bright red beard. Obviously, the man in the rear was much better dressed than the man in the front.
I was so intrigued by this picture that I had it shown on the screen, over the objection of the chair person. The showing of the picture produced no reaction. However, both he and I got low scores on the evaluation forms.
Friend broke up with Lover a week or two later. I have never asked why, but I have a fantasy I prefer.
How many mistakes did I make?