Ethics Quote of the Day: Ken, of Popehat

“Listen to me: a law school calculated to make students feel good about themselves is as ridiculous as a Marine boot camp designed to make enlistees feel good about themselves. Law students, God help us, will one day be lawyers. When they are, nobody will care about their self-esteem. The prosecutors seeking to jail their clients will not be seeking to foster a sense of community. The opposing civil lawyers seeking to bankrupt their clients will not be promoting a culture of dignity and respect. Most law practice is about conflict. It’s a bloody, ugly street fight. Self-esteem borne of law-should-be-harmony is useless to clients. The only self-esteem useful to clients is self-esteem earned by hard work, determination, command of the subject matter, and the willingness to stand up to adversity. People who object to law professors being wickedly Socratic, and classmates being cutthroat, are missing the point. If you’re put off by a Socratic professor, Mr. Fluffy Bunny, a run-of-the-mill judge is going to make you soil yourself. If nasty, backstabbing classmates upset you, the first time you get into a nasty letter-writing campaign with an opposing counsel you’re going to have a breakdown. Law school is not a fucking spa day. It’s training to stand between your client and whatever the world throws at him.”

—– Ken, the astute lawyer/sage/Don Rickles of the libertarian social commentary website Popehat, excoriating the University of St. Thomas Law School for, among other things, extolling the values of self-esteem, collaboration, harmony and community among their students.

What Ken is really talking about is zealous representation, that once universally accepted bedrock of the  lawyer’s duty that has gradually fallen into disfavor with many academics and lawyers. Zealous representation isn’t ethics, it’s legal ethics, which are professional standards of conduct that define what the practice of law is. Back in 1908, when the first Canons of Ethics were unveiled by the American Bar Association, zealous representation within the bounds of the law was mandatory. A lawyer was the champion for his (lawyers were almost all men) client, and was expected to get down into the mud to fight if that’s what it took. When the ABA’s Code replaced the Canons more than fifty years later, zealous representation was something a lawyer should do, but no longer a requirement. It’s a couple of revisions later now, and zealous representation doesn’t appear at all in most state ethics rules. (Washington, D.C. is a notable, and laudable, exception.)

Zealous representation is under continuing attack, as the culture of legal practice evolves as a result of the profession’s concern about public relations and image, increased media attention, and the changing demographics of what was once a male dominated legal culture. If Ken were Rush Limbaugh, he might be complaining about the “chickafication” of the law. Law as combat is losing ground to law as collaboration and being “lawyer to the situation.” Is this a positive development? It is certainly a significant development, and as Ken’s quote shows, the advocates of vigorous advocacy believe it is a sinister development.

My hope is that enthusiasts for a kinder, gentler practice of law will exert valuable counter-weight to the worst tendencies of the “pit bull litigator” crowd, without turning the profession of champions into the domain of wimps, weenies, and push-overs, as Ken, with justification, fears. For the pendulum of legal practice to swing too far to the nice side would, as this sort of thing always does, give a frightening competitive advantage to bullies, zealots and jerks.

17 thoughts on “Ethics Quote of the Day: Ken, of Popehat

  1. I don’t see this as a defense of zealous representation. It’s more a defense of sanity. We know there are bad actors in the legal system. There are corrupt judges, overzealous prosecutors, and deceitful attorneys. Even assuming good faith on everyone’s part, there ARE mudslingers in the trenches and sharp tongued judges who don’t care if you’re trying your best.

    As an attorney, it is your job to be able to wade through all the crap to effectively represent your attorney. I don’t see Ken suggesting that new attorneys be nasty…just that they be prepared to handle nastiness. There is no defense of vigorous representation, just an attack on being unable to stand up against vigorous representation.

    In a streetfight, you don’t have to go below the belt, but you have to be able to handle someone else who will.

    • Are you under the impression that “zealous representation” is a synonym for “nasty” or “bad”? It isn’t, though this is why it is losing ground. Zealous means, in a legal context, partisanship, and giving your client the benefit of the doubt, doing everything under the law and ethics rules that succeeding requires, though not doing (if you don’t want to) things that you feel are unfair, cruel or unjust.

      Your comment also suggests that “vigorous” representation is a problem. Vigorous representation is essential—less is unethical. I can’t read Ken’s post as simply endorsing a defensive posture rather than a compliant one.

      • I am a wholehearted supporter of vigorous and zealous representation. I don’t believe that I tied them to negative ideas, though you did a bit. I was trying to point out that Ken isn’t talking about vigorous and zealous representation at all. That’s a red herring.

        Ken’s talking about the weakening of new lawyers. There’s no mention of bringing guns to the courtroom, just a suggestion that teaching prospective lawyers that they won’t have to wear a bulletproof vest does a disservice to these new lawyers, and more importantly, their clients.

        Ken’s last sentence sums it up: “[Law school is] training to stand between your client and whatever the world throws at him.” He’s attacking a culture that coddles adults desiring to practice law, instead of preparing them.

        • “Most law practice is about conflict. It’s a bloody, ugly street fight. Self-esteem borne of law-should-be-harmony is useless to clients. The only self-esteem useful to clients is self-esteem earned by hard work, determination, command of the subject matter, and the willingness to stand up to adversity.”

          It’s only combat if both lawyers are equipped to “fight” zealously, and the hot button for the author is “collaborative,” which is inherently non-adversarial.In most sets of ethics rules, “zeal” is subsumed under diligence, and “hard word and determination” is what the profession means by diligence. You’re welcome to your own reading, but this is a defense of zeal in advocacy, the adverse of “collaboration” and worrying about your opponent’s self-esteem.

          • Can someone else jump into this issue? While I don’t disagree that Ken supports zealous advocacy, that still doesn’t appear to be the focus of this passage.

            Ken doesn’t mention anywhere about “worrying about your opponent’s self esteem.” Instead, he talks about how people in the real world will not care about these new lawyers self esteem. He compares the minor attacks a new lawyer might face in law school to the more serious attacks they will receive once they graduate. If the students are too delicate to stand up to Professor Devils Advocate, there’s no way they’ll be able to handle Judge Your Argument Sucks.

            Your references to “hard work and determination” are also taken out of context. Ken is only using them as counterpoint. He is saying that the self esteem boosts the students get (the apparent reason for the policies) aren’t worth anything in the real world.

            Lawyers need to be trained for what they’ll face, not built up to feel good about themselves even though they are woefully underprepared. That’s the point of what Ken is saying.

            • You should read the full post by Ken; I am using that as context for interpreting the passage. He does reference lawyers showing concern to the sensibilities of their opponents later in the post. I can see how you would read it differently in an isolated context. He also worked into the quoted section by reprinting the law school’s description of its approach, which emphasizes civility, respect, and collaboration. I have no problem with those values in theory, but Ken believes they led the school to settle a frivolous lawsuit.

              • I did read the full post, both when he wrote it and after we disagreed. I stand by my interpretation of this particular passage.

                This might be the silliest disagreement we’ve had. I think we’re in complete agreement on which behaviors are ethical and unethical, we just can’t agree on which of them Ken specifically called out.

  2. I hate to be like Marshall McLuhan in Annie Hall, but:

    My point was that law school ought to be about equipping lawyers to represent clients effectively, and part of representing clients effectively is the capacity to endure the rough-and-tumble of our adversarial system, and that a law school that emphasizes community and harmony may undercut lawyers’ ability to fulfill that duty and may cultivate a sense of entitlement to kum-ba-ya that is ultimately antithetical to that duty.

    • I love that scene.

      And that is what I took you to be saying. I have no idea what the hell Marshall McLuhan was saying, ever.

      I don’t think civility, properly defined, undermines that duty at all. You can cut off an adversary’s nuts respectfully, and with a smile, but you are a fool to expect him to do the same.

      Thanks for the clarification, Ken.

      • Look, I have no problem with a profession-wide movement to encourage civility. Some pockets of law are remarkably civil. There’s a saying “criminal lawyers treat each other civilly, civil lawyers treat each other criminally.” But that sort of underlines my point: one set of criminal lawyers is trying to jail the clients of the other set, which is the main even, not the relative politesse with which they address those lawyers.

        I have no problem with law schools encouraging students to think about how the profession could be made more “civil.” Much incivility is bad for clients — stupid back-and-forth letter writing campaigns are pointless expense. But any responsible legal education has to emphasize that it’s not about the lawyer and the lawyer’s feelings, its about the effective and vigorous representation of the client. Focusing on civility in the context of how it makes the lawyer feel — as opposed to how it gets the job done more effectively for the client — obscures that.

        • Ken: I think it’s a major issue, and far beyond St. Thomas. I taught legal ethics one semester trying out a Deborah Rhode textbook (with David Luban.) I thought the whole book was kumbaya…I used her hypos and argued with her conclusions. (she also believes, based on recent essays, that lawyers have an obligation to turn down “bad” clients….those whose objectives are legal l but in the lawyer’s eyes, immoral.)

          Who cares how the lawyer “feels,” unless you can use those feelings to your client’s advantage? If you can undermine an adversary’s confidence during a trial, you have an obligation to do it. (Yes, there are limits. A Virginia attorney intentionally asked a prosecutor returning from leave after the prosecutor’s young daughter had been killed in bloody car crash, “How’s that little girl of yours?” to unsettle him before his opening statement. It worked, but that’s way over the line, in my view.)

          I am considering using your quote (full attribution, natch—someday, I’d love to know your real name) in a speech I’m giving for a bar association later this month,

      • And that is what I took you to be saying.

        Really? I thought that’s the point I was arguing for. I’m not used to going this deep into comment meanings when SMP isn’t involved.

  3. Oh, Jack. Anonymity is an entirely different ethical subject, as you know.

    I don’t have a problem with you knowing my True Name. For now I remain pseudo-anonymous on the internet to make it slightly harder for local white supremacist nuts and national vexatious litigants to find me.

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