Michael Sean Quinn, Ph.D, J.D., Etc., Author
Law Office of Quinn and Quinn
2630 Exposition Blvd  #115
Austin, Texas 78703
(o) 512-296-2594
(c) 512-656-0503
(Resumes: www.michaelseanquinn.com)
This Preface is attached to each of the parts, oppressive though that may appear.This blog  is part (1/11th) of a collection called the ELEVEN COMMANDMENTS OF LEGAL ETHICS.  There are 11 separate mini-blogs; they need not be read in any particular order.  I have tried to keep them “together,” but cyber-success is not an inevitability when I am around. An early version* of it was published a decade or so ago.  Before that very short speech versions  were used as part of a day long CLE course ordered by the Supreme Court of Texas for new lawyers.  Later for several years it was used in other CE or CLE contexts.  All of this can be found on my Resume which is linked to (attached to) my website. www.michaelseanquinn.com. There are video versions somewhere in the cyber-sphere, and if not there in the cyber-world or in c-space and/or in the so-called “real world,” for sale.  As old as it is, the collection–whether in print, in the “blogus-sky,” on a something like a motion picture–is not really out of date, except there are not explicit references it to legal ethics and the cyber world.  At the same the obligations of the lawyers have not changed much, except now there is a new dimension to our confidentiality obligations and and out obligations to keep up to date. The “code numbers” are sometimes to the ABA Model Rules and sometimes to the Texas Rules of Professional Conduct.

Some of the Blogs will contain supplementary additions. Those added after January 1, 2015 will probably be dated, barring oversight. Readers may note that many of the cites are Texas cases.  This resulted from the history of the contents.

These disquisitions are revisions something I wrote at least several years ago. First editions of these essays were  begun some time ago.  Somehow their print got locked in, to some degree, so some parts of the essays were thrown out of kilter and can’t be made right today. This is particularly true along the left margins of some of the essays. 
This blog, like some of the others, will contain supplementary additions.  Like the others, it will also use some abbreviations from time to time: L for lawyer, LF for law firm, C for client.
COMMANDMENT TEN:  MENTOR CAREFULLY BUT HUMANELY:  INSIST ON IT.

            Law offices must employ support staff as well as lawyers.  The support staff may include secretaries, paralegals, filing clerks, runners, copyroom personnel, computer technicians, office managers, bookkeepers, demonstrative evidence specialists, graphic artists, photographers, investigators, translators, nurses, physicians, scientists, engineers, marketing specialists, and others.  Of course, not every law office has every sort of staff employee.  These people have conflicts that may cause the disqualification of a law firm.  These people may also make mistakes and can trigger malpractice cases.

            This rule is formulated as it is for several reasons.  First, mentorship includes supervision,69 but it includes a good deal more.  Second, junior lawyers can mentor each other, as can senior lawyers, but they do not supervise one another.  Third, very senior lawyers should insist that more junior lawyers mentor those at the bottom.  Thus, mentorship should become an institutional dictate–part of the firm culture.  Fourth, junior associates should insist upon receiving mentorship.  In fact, junior associates interviewing law firms should try to figure out how much mentorship is available.  It makes no sense to be an apprentice in a place no one’s willing to be a master.

            One cute but acute observer has stated recently that many lawyers are lousy at mentorship, supervision, and instruction.  Thane Josef Messinger, The Young Lawyer’s Jungle Book (2d Ed. 2000) “If you feel lost and unsure of your legal desires, then find a firm whose partners take mentoring seriously.  Ironically, bigger firms are usually better at this–because they have to be.  If you like smaller firms (. . .and smaller firms are, generally, nicer places to practice) then you should understand that, more likely than not, a far greater part of your learning–and self-teaching–responsibility will fall upon your shoulders.  If you’re not self-directed, then go with a bigger firm, at least until your training wheels fall off.”  Id. at 7.  (Messinger’s jolly book is perfectly orthodox in a relaxed sort of way, but it is eminently readable.  The underlying message is, “Lighten up on yourself.”)


Given the purposes and context in which the early versions of the essays were written, many of the legal rules explicitly numbered are from The Texas Rules that were built upon the ABA Model Rules. 


A.        Legal Rules:

1.         1.01(a): Lawyers shall perform their labors competently.

2.         1.01(b): Lawyers shall not neglect their client’s work.

3.         5.01:    Senior lawyers in a law firm must supervise junior lawyers (same for corporate and                   government analogs).

 4.         5.02:    Junior lawyers must accept supervision, but they are still responsible under all                           applicable rules.

 5.         5.03:    Lawyers shall supervise non-lawyer assistants.

B.        Junior Associates.  It is often unwise to send first-year associates to significant hearings alone.  One wonders if wizened judges listen carefully to quite young people.  Reilly v. Natwest Markets Group, Inc., 181 F.3d 253 (2nd Cir. 1999).  Might this not even be a form of malpractice?

C.        Paralegals.  Law firms need to be extremely careful about the paralegals they hire.  Paralegals (a/k/a legal assistants) who have worked on a case are conclusively presumed to have received confidences and secrets while working upon that case.  Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994) (while presumption exists, it is rebuttable).  See Grant v. 13th Court of Appeals, 888 S.W.2d 466 (Tex. 1994) (legal secretary).  It is not, however, conclusively presumed that the legal assistant shares any of the secret information he presumptively has with his new employer.  There is such a presumption, but it is a rebuttable one.  In re American Home Products Corporation, 985 S.W.2d 68 (Tex. 1999).  (Freelance legal assistant caused disqualification of counsel for plaintiffs.)

D.        Office Organization.  Staff errors are attributable to the lawyers who supervise them.  Staff errors can get lawyers into trouble and cause them fines.  Cuyos v. Texas Mobil Health, Inc., 10 F.Supp.2d. 750 (S.D. Tex. 1998).  Here an attorney failed to show up because his office failed to calendar a hearing.  “The Court readily acknowledges that inadvertent mistakes occur from time to time, in every attorney’s office and the Court appreciates [this lawyer’s] candor in conceding one here.  However, neither as an attorney, nor as a sitting federal judge has this Court ever blamed mistakes upon its staff, or a court clerk.  The staff of an attorney work for that attorney.  They take their direction from and assume their responsibilities by, for and through that attorney.  In the last instance, such attorney is always responsible for the conduct of his staff, and to seek to displace blame from himself to his staff is craven and unprofessional.”  Id at 752 (emphasis added).  It is probably a bad idea to hire suspended lawyers or disbarred lawyers as paralegals, unless there is a history of substantial reformation.  In re Graddick, 729 N.E.2d 1245 (Ind.  1999) (misconduct of “paralegal” attributed to lawyer).

E.         Mentorship.  Senior lawyers must teach both junior lawyers and paralegals.  They must also be prepared to be taught by them upon occasion.  In some ways, mentorship is much more important than teaching.  After all, law school is an institutionalized process by means of which people learn to teach themselves.  There is an argument that mentorship and teaching are not the same.  Indeed, there is an argument that they are in some sense opposites.  Scott Peck, Golf and the Spirit, 23-26 (1999).  According to Dr. Peck, mentorship involves support, encouragement, and inspiration, but hardly any teaching at all.

F.         Law Firm Culture.  Many young lawyers are quite unhappy with the environment in which they practice.  One wonders if something can’t be done about this.  Andrea M.  Alonso and Kevin Faley, The Law Firm Culture of Abuse, 84 ABA J.  116 (November 1998).

G.        Company Law Departments:  In-House Counsel.  Some of the most interesting management and leadership problems in the law today are to be found in corporate law departments.  Reference has already been made to issues resulting from the globalization of businesses and capital markets.70  Law departments are also becoming “compliance management advisors.”71

H.        Securities.  In one particularly shocking case, a lawyer utilized the services of a non-lawyer “paralegal” previously convicted of securities fraud, carefully crafted letters and other phony material  to leave the wrong impression, and utilized the services of an actress to convince investors that they were on the up-and-up.  In such a situation, the lawyer may be held to have violated Rule 10b–5.  Indeed, the court held that the lawyer and his “paralegal” “knowingly and with scienter made material misstatements in connection with the purchase of a security.  The court further found that the plaintiff justifiably relied on those material misstatements and the reliance approximately caused injury to the plaintiff.  (This case is a cautionary tale, if ever there was one.)

I.          Appropriate Attitudes of the Young Lawyer.  The new lawyers should look for and then embrace both mentoring and supervision.  There are a number of things they should avoid, however. 

1.         Micro-Managerialism.  Some supervising lawyers can’t turn loose of anything.  One lawyer we know even extensively revised a general denial.  (One of us pointed out to him that a general denial was sufficient if it said something to the effect, “Defendant denies everything.”  This lawyer even agreed that general denial was probably sufficient if it contained a single word:  “No.”  When a lawyer admits that and then revises: watch out!  If the lawyer revises disdainfully, find another mentor.

2.         Watch out for traces of condescension, anger, cruelty, and so forth.  Check the list of vices to be found in the introductory section of this outline. 

3.         Tell-tale signs are often to be found in off-hand remarks, dress, demeanor, and office decor.  For example, if a partner’s office contains either of the following two books, have nothing to do with him:

a.         Machiavelli, The Prince.  (If the book is in some sort of ersatz-elegant leather binding, check and see if its been read or even opened.  If it has not, and especially if it is part of a set, this rule does not apply.)

 b.         Dorothy M. Johnson and  R. T. Turner, The Bedside Book of Bastards (1973) (recounting the career of Lord Chief Justice George Jeffreys, among others).  (The very displaying of this book hints that the lawyers is unacceptable as a supervisor.)

 J.      “Purposivism.” There has been controversy for many years about disciplinary rules, whether those proposed by the ABA–the so-called “Model Rules”–or those of the various states, etc. All states have them; the District of Columbia has them; the territories have them. A number of courts have their own, as it were, local ethical rules. And then, of course, there is Rule 11. New lawyers need to be taught about these, their meaning, their strength, how to interpret them, and so on.  These rules have often been criticized for being too obscure, unclear, indeterminate, and worse.  All lawyers are required to take a few hours of CLE on these during specified periods of time. See Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C.L. Rev. 671 (1979. But, some have argued, there needs to be more monitoring, stimulation, and the creation of a sense of “purposiveness.” The idea of “purposivism” is that “lawyers should demonstrate greater allegiance to the public purposes of legal, rules[.]” David B. Wilkins, Legal Realism for Lawyers, 104 Harv. L. Rev. 469, 505 (1990). I’m not entirely sure what this is.  However, I’m pretty sure that it means things like this: moral lawyering, restraint in advocacy and negotiation, limiting zealousness in the pursuit of client interests by a certain degree of civic-mindedness, and perhaps other values as well. If anything like this is to go forward–a doubtful idea since that’s not what clients are buying–actions in accordance with Commandment 10 that requires mentoring are a must






                69 The supervision of junior lawyers is legally required and the absence of supervision can lead to malpractice claims.  In re Farmer, 950 P.2d 713 (Kan. 1997), In re Yacavino, 494 A.2d 801 (N.J. 1985), and In re Barry, 447 A.2d 923 (N.J. 1982).  Notice that these are not malpractice cases but they are grievance cases brought against senior lawyers for failing to supervise.  Some states are considering making it possible to bring grievances against law firms.  The ABA Ethics 2000 Commission has suggested this.

                70 Mary C. Daly, The Cultural, Ethical, and Legal Challenges of Lawyering for a Global Organization:  The Role of the General Counsel, 46 Emory L.J. 1057 (1997).

                71 Richard S. Gruner, General Counsel: An Era of Compliance Programs, 46 Emory L. J. 1113, 1115 (1997).  Professor Gruner of the Whittier Law School argues that general counsel’s function as managers in this context as well as architects of corporate compliance.  He asserts that “law schools have done a poor job in preparing new lawyers to aid large organizations and meeting ongoing law compliance obligations. . . .  In order to guide corporate clients through today’s legal thicket, corporate lawyers need special training in organizational law compliance techniques.”  Id. at 1194-95.  Gruner’s article attempts to provide an opportunity for mentorship through reading.  See C11 below.  (Professor Gruner was formerly inside counsel to IBM and a consultant to the United States Sentencing Commission concerning corporate sentencing standards.)