“If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody’s reminding us that you have an obligation to know what you’re doing before you accept the client. Somebody should.”
—-Ken, the lead blogger/attorney/libertarian/ wit/ First Amendment champion at Popehat, summarizing the lessons of the Joseph Rakofsky saga. Rakofsky was a green D.C. lawyer ( he is still a lawyer, less green but sadder and wiser) who indeed did take a murder defense as his first trial, made an epic botch of it, and then launched a desperate defamation lawsuit at legal bloggers, like Ken, who had told his cautionary tale to the world with appropriate ire. The law suit was dismissed last week.
Competence is an ethical value, especially in the professions, but also in most pursuits. Taking on the responsibility of accomplishing a task creates a duty, and doing so without being justifiably certain that you will have the skills to do it is reckless and irresponsible.
Ken, an experienced and accomplished attorney whom I have consulted for his professional advice in the past, also knows that inexperience does have to be eradicated with experience, and a strict application of his statement in all cases would lead to a frustrating Catch 22. Every pilot has to take that first solo flight; every head surgeon has his first major operation; and Clarence Darrow had to take on that first murder trial before he could say with complete confidence that he knew exactly what to do. On a more basic level, any lawyer taking on a representation in a type of matter she has never handled before, such as drafting a will, will be, in a sense, accepting a client before she knows what she is doing, because she hasn’t done it before. That’s okay, however: the ethics rules, as expressed in the American Bar Association’s Rules of Professional Conduct (in Rule 1.1) say its okay, as long as, by the time the task is underway, the lawyer is sufficiently competent:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
That means that a lawyer can ethically accept a type of case he has never handled before, as long as he then becomes sufficiently prepared and knowledgeable to complete the matter competently and protect his client’s interests. If that were not true, newly-minted lawyers would have a very difficult time becoming experienced lawyers. But just as no responsible pilot takes his first solo flight in a 747 full of passengers, no responsible lawyer accepts the life and death challenge of a murder defense without more to rely upon than a law degree, some criminal law courses, some Perry Mason episodes, and a copy of “Murder Defense For Dummies.” Clarence Darrow, generally regarded as the greatest criminal defense lawyer who ever lived, had to take the leap into murder defense work with his first murder trial, but he had practiced law for over a decade before he did it, and knew his way around a courtroom from the experience of many trials, including jury trials.
Often a young attorney will take on her first murder defense as co-counsel, with a more experienced hand taking the lead. I’m sure there have been other lawyers whose first solo trial was a murder defense, and I’m sure not all of those trials ended up as fiascos, but it is fair to say, I think, that attempting this is a terrible risk, almost always a bad idea, and usually the sign of lawyer overflowing with hubris, and insufficiently protective of his client’s welfare. Ken’s comment especially resonated with me this morning, as I considered the most recent in the growing list of Obama Administration scandals, the revelation that the Justice Department secretly obtained telephone records from more than 20 lines belonging to the Associated Press and its journalists in an attempt to learn where sensitive leaks were coming from. This was wrong, of course, an abuse of power, and also unprecedented. The ACLU is up in arms, as are other First Amendment specialists, and even some Democrats seem to be roused from their usual course of looking the other way when Obama Administration misconduct appears.
Why has this happened? I am convinced that this, like the IRS targeting of conservative groups, like the clown act that was the response to Benghazi, is the direct result of weak and inept management, beginning at the very top. Managerially inexperienced and unqualified individuals head or have headed many huge agencies and departments in this government, which has been managed itself by an individual with no management experience at all.
Taking on the job of President of the United States without having managed anything else is in the same category as embarking on a legal career with a murder defense, except that it is even more reckless, requires more hubris, and is even less likely to be successful.This was or should have been obvious in 2008, and I was not shy about pointing it out then. Nor were others. It is not an ideological observation, but a practical one. To seek as one’s first management job the most difficult management job there is begs for disaster, and the only thing more irresponsible than accepting such a job without relevant experience is to offer it. All U.S. Presidents, to greater or lesser extents, endure on-the-job training, it is true, but those with a demonstrated aptitude at leadership and management are far more likely to master the position. After four years, this President’s learning curve is flat, and while it is disappointing that he still believes his job consists of deciding what he wants, making speeches about it, and then delegating the task of accomplishing it to intractable ideologues while he stumps for political donations, it is not unexpected.
This slack and distant approach, which is compounded by suffering other managers, like Holder, Clinton and Kerry, with little more management experience than he has, virtually guarantees runaway operations down the line, like Fast and Furious, the IRS scandal, and now the surveillance of the AP. It also gives a dangerous amount of power to the experienced managers up and down the chain of command, who are allowed to become more successful at “managing up” and accomplishing their own agendas, which properly need to be monitored and kept in check, but will not be.It’s not going to get any better, you know. It’s going to get worse. At a time of great crisis on many fronts, when what was needed was extraordinary management and leadership skills, the United States did the equivalent of a murder defendant hiring Joseph Rakofsky. The difference is that there are no do-overs or mistrials for national affairs. We can hope, and we might get lucky. Without competence, that is usually all that is left.
Graphic: New York Personal Injury Blog