The Saga of the Entrepreneural Legal Mentor

"OK, now pay attention. I'll teach you to hunt, but it will cost you..."

“OK, now pay attention. I’ll teach you to hunt, but it will cost you…”

Attorney Kenneth Beck is reeling from a barrage of criticism he has received for placing this ad on Craig’s List:

ARE YOU RECENTLY ADMITTED TO THE BAR, OR AWAITING BAR RESULTS, BUT NEED EXPERIENCE FOR THAT FIRST JOB?

General practice attorney with more than twenty years of experience is willing to train a small number of recently admitted attorneys, or those awaiting bar results. For a monthly fee, you will be able to shadow the experienced attorney, and learn by watching the day to day practice of law. Observe the following types of proceedings, as they occur; Civil Short Calender motion arguments, foreclosure mediation’s, pre-trial conferences, Workers Compensation and Social Security hearings, real estate closings, discovery proceedings and compliance, research and general office operations. …

The unprecedented ad, now pulled, prompted nasty e-mails from his target audience and a lot of ridicule on various legal blogs. Beck hit a nerve, obviously, in fact several: the perceived venality of the profession, the desperate plight of recent law grads in a tight market, the lack of practical training students receive in law school. Some even suggested that the ad rose, or rather fell, to the level of professional misconduct. “Will this kind of revenue producer be censured by the state bar association?”, asked the blog Law and More.

That one is easy: no, because nothing about the ad raises legitimate questions about Black’s trustworthiness or honesty, and there is no clear violation of any existing rules inherent in his proposition. Still, the question lingers: even if this doesn’t nick the Rules of Professional Conduct, is it ethical?

Some sure think it isn’t, based on the comments received by the American Bar Association Journal following its news item about the ad, which was pulled by Black after all the abuse. The professional ethics angle is covered by one writer who wrote,

“Those of you not seeing a problem should ask yourselves what your state’s bar counsel would think if you began selling access to your clients’ confidential information.  Because that is what this scheme amounted to.”

No, it didn’t. Black would presumably properly acquire the permission of his clients to involve the young J.D.s, but their status would be like any that of any other non-lawyer assistant if they aren’t yet licensed, or a subordinate attorney if they are. They are still bound by the provisions of the rules requiring lawyers to protect their clients’ confidences, in the case of the non-lawyers, through Rule 5.3, which requires the supervising lawyer to make certain they do.

There are more legitimate ethical concerns, though. One of them is whether this is an example of making an intern pay for the privilege of working, which I wrote about in 2010 after the Huffington Post announced that it was auctioning off intern positions for up to $9000 each:

“When a for-profit organization allows an intern to work without compensation, it is 1) taking advantage of workers desperate for experience, 2) skirting the minimum wage laws, and frequently 3) using unpaid interns to take a job that an unemployed worker could fill. If the internship has no real educational value and consists of medial tasks, it’s unfair to the intern for that reason too.”

Was  Beck really offering an internship? His ad is ambiguous. The reference to “experience” would suggest that the J.D.’s would be doing substantive work, since a lawyer who cited “experience” that was really just watching someone else do a job would be engaged in unethical deception. Yet the rest of the Craig’s List ad only mentions shadowing and watching. I can see the situation evolving into a paying intern situation, but the ad doesn’t describe it that way. If the proposition is unethical, that isn’t the immediate reason.

One ethical problem with the offer is that Black is asking for compensation for doing what the profession, indeed any profession, should encourage practitioners to do gratis: mentor young and inexperienced practitioners and show them “the ropes.” It is the right thing to do, a perfect example of “paying it forward.” This theory holds that Black is exploiting the desperation of recent law school grads struggling to find work by turning their plight into his profit. It is hard to come to this harsh verdict fairly without knowing what the terms of Beck’s arrangement would be. “I wasn’t looking to charge five people $300 an hour to go to court with me,” Beck has explained. “I was just looking to basically not lose money that’s involved in explaining things. It would be learning by doing. I thought it was a creative way to fill a gap. I thought I was offering a service.”

That’s reasonable, I think. While several commenters on the Journal’s thread noted that young lawyers and students have always been advised to watch court proceedings and talk to practitioners, all costing them nothing, a more formal mentor relationship might have extra value, and I can’t quibble with Beck’s assumption that providing genuine instruction to five inexperienced lawyers would require time, care and effort to do well, presuming he does it well. Okay: now he’s been shamed into removing the ad and the offer, and the opportunity no longer exists. Is this a good development? What if he was prepared to charge only a nominal fee, and in return, his “apprentices” received good advice, practical knowledge, and useful contacts? How are things better for the theoretical five young J.D.’s who might have benefited from Beck’s service and regarded the fees a bargain?

Says commenter “Pushkin” in the ABA thread,

“A guy not smart enough to anticipate the reaction to the ad isn’t worth shadowing.  He doesn’t have anything to teach.  Twenty years of experience isn’t a credential if it consists of twenty years of practicing his mistakes.”

A better example of hindsight bias would be hard to find, and the comment is unfair as well. Perhaps Beck was troubled at the difficulty law grads are having in the job market, wanted to help as as possible, and thought this was the most feasible way to accomplish that goal? The fact that he didn’t anticipate the backlash doesn’t mean he’s not a good tutor, mentor and human being, and it certainly doesn’t prove a thing about his intelligence or legal skills. Still, as yet another ABA commenter writes, “I cannot quite put my finger on it, but something about the proposed arrangement does not seem right.”

This seems like a propitious time to reflect upon the warning issued by Ethics Alarms commenter, blogger and resident conspiracy theorist, blameblakeart, who opined regarding the Huffingtom Post case:

“This to me is not only unethical, but it is the continuation and expansion of our culture’s evolution of stratification, 2 tier, pay to play, elite vs serfdom direction in which we seem to be heading….Now, it’s whomever’s daddy can afford the highest bid… if that’s not an open door invite for class warfare, what is?”

I think he’s put his finger on the real ethics issue here, albeit arising is a different context. Th culture of legal practice has always encouraged lawyers to mentor the next generation of legal eaglets generously and freely, without making is just one more profit center. Young lawyers today are financially stressed more than ever before, thanks to the obscenely high cost of legal education, and they need mentoring, guidance and assistance more than ever before. This is no time to chance a centuries old model, and to transform what was once an ethical duty into “pay to play.” Don’t blame Beck: taking on five mentorees is work and time-consuming, and what he may have been proposing was a real tutorial, which goes beyond any professional obligation. Still, critics were correct to see his proposal as a threat to a long-standing cultural standard. His offer wasn’t unethical, but its results might be. He wasn’t wrong to offer it, but I agree with the legal culture’s decision to veto the plan as risking an unethical trend in exactly the wrong direction at a time when law grads need a helping hand more than ever.

___________________________

Sources: Law and More, ABA Journal , Legal Blog Watch

Graphic: Wild Life Films

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

 

6 thoughts on “The Saga of the Entrepreneural Legal Mentor

  1. This is something that is fairly common in journalism and the business fields. When classroom work doesn’t prepare you to immediately work in the field (as it often doesn’t), then internships are a great institution. Many fields pay interns regularly and pay them well (engineering, science, etc). Outside math-based fields, this seems less common and the unpaid (or reverse-paid) internships are more common. One of the big problems with this is that it does stratify the profession. The only people who can work in such a field are people who come from wealthy backgrounds (people without such backgrounds can’t afford to work for free or pay to work for a significant amount of time).

    I really think this has already happened in journalism. I see evidence for it a lot in the sob stories they run. When they give their ‘human examples of suffering’ for cutting unemployment benefits of people who have been receiving them for 5 years, housing foreclosures, or student loan disasters, I find that I don’t have that much sympathy with those particular examples. I think “Is this the best they could find”? I think is just that the journalists don’t really have a grasp of “average”. I don’t have much sympathy for the person who lost their $900,000 mansion to foreclosure because they could really only afford a $750,000 mansion, but overspent (with that salary, they will recover just fine). I don’t have much sympathy for the secretary who lost her $90,000/year job after helping her boss embezzle from the company and can’t find another $90,000/year secretarial job (you have already received more than you deserved). I don’t have much sympathy for the person who racked up $120,000 in student loan debt at an Ivy League school to get a teaching degree (you can’t fix stupid). I know there are more reasonable examples out there, ones that would engender some sympathy, but the journalists seem to not know about how anyone close to the median lifestyle lives. It shows they are truly incapable of understanding the societal problems they report.

    Does the law want to be this way? I think in some ways, it already is. Although law schools don’t have the outrageous costs that medical schools and top MBA programs do, they aren’t cheap. The people who become attorneys come from above-average backgrounds. This, and the fact that they are self-regulated, leads to a belief that they are ‘above’ the normal human (not to the same extent as physicians, but…). An attorney in my town was found to have been molesting the underage boys he represented. When the story broke, a friend of mine who works in a law office said “Well, I’m glad they are finally going to do something about that”. She told me the attorney was the assigned court-appointed attorney for underage defendants and that it was widely known that he molested the boys he represented and he had been doing it for decades. When I asked why no one stopped him, despite the fact that boys had been filing complaints about it for years, she said “He is the only one who would represent them for free”. How do hundreds of attorneys allow something like that to happen? The kids aren’t like them.

  2. Wow. What a story. Thanks for sharing and providing such a thoughtful analysis. Notwithstanding my kneejerk reaction (very “ick factor”-like), I am inclined to agree with your conclusion that the offer, in and of itself, was not unethical (under common current business practices) but results could be.
    All that said, I’m wondering about something and would appreciate clarification from your perspective. I’ve always found it odd when non-lawyer subordinates/employees/associates are described as being “bound by” the ethical duties applied to lawyers. ABA Model Rule 5.3 (and similar state rules) makes the lawyer responsible for conduct of a non-lawyer associate, if such conduct would be unethical when engaged in by the lawyer, and, thus, imposes an additional (practical) obligation on the lawyer to ensure that associates’ conduct is consistent with the rules. This rule does not, technically, impose any ethical obligations on the non-lawyer. As I see it, this is correct, as the Bar has no real authority over non-lawyers. The Bar cannot sanction a non-lawyer; the best it can do is sanction the lawyer that supervised/worked with the non-lawyer associate.
    You say “the young J.D.s. . . are still bound by” the rules (specifically those related to confidentiality). Of course, they would be so bound if they are members of the Bar. From my perspective, however, that statement is incorrect if they are NOT members of the Bar. Not trying to be nit-picky or play semantics games; actually interested in your thoughts. A post earlier this week raised the same question for me (can’t recall which one).

    • You are exactly right in every respect. The young but unemployed licensed attorneys are bound by the rules of the profession directly, and the unlicensed JD’s are required—but only through the supervising lawyer, Beck—to make sure HIS ethical obligations are met, because they are his agents, standing in his shoes. He is required by 5.3 to make necessary and reasonable efforts to ensure that they don’t violate the rules on his behalf, and if they do, he is accountable not they. That’s what I intended yo convey when I wrote in the post:
      “Black would presumably properly acquire the permission of his clients to involve the young J.D.s, but their status would be like any that of any other non-lawyer assistant if they aren’t yet licensed, or a subordinate attorney if they are. They are still bound by the provisions of the rules requiring lawyers to protect their clients’ confidences, in the case of the non-lawyers, through Rule 5.3, which requires the supervising lawyer to make certain they do.”

      They are “bound to,” but only through the supervising attorney: you’re right—a bar has no jurisdiction over a non-lawyer..BUT. These are aspiring, pending and potential lawyers, and don’t think willfully violating an ethical duty the bar exams hold them responsible for learning couldn’t affect their prospects of bar admission if the violation was flagrant enough. The non-lawyer JD should be held to a higher standard than a regular 5.3 non-lawyer assistant, and my guess is that he or she can be and might be.

  3. Good article, Jack. When I read about these ins-and-outs, along with assorted pettifoggers and peccadillo artists who argue these things among themselves, I’m inclined to commend myself for my wisdom in not going to law school!

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