Fairness To Incompetent Lawyers?

To be fair, Tamara can blame the fact that she thinks this is a good law  suit on her cognitive problems..

To be fair, Tamara can blame the fact that she thinks this is a valid law suit on her cognitive problems…

Why this story didn’t make my head explode, thus rating the KABOOM! label, is a mystery. My theory is that the truly idiotic and ignorant exclamations on Facebook by my usually rational friends about guns in the wake of the Orlando terrorist attack have gradually strengthened my skull’s tolerance to internal pressure.

Once again, I have encountered a news story that required me to check and see if it was a hoax.

Tamara Wyche is a 2013 Harvard Law School graduate who is suing the New York State Board of Law Examiners. She claims she twice failed the bar exam because it refused to provide the same kind of testing accommodations that the law school did for her in her exams there, in recognition of her various cognitive problems. The fact that she flunked while being forced to take the exam under the same rules as everyone else resulted in the large Boston law firm Ropes & Gray terminating her employment. You can read her complaint here.

I confess that I didn’t read all of it: I didn’t want to press my luck with the old cranium.

The 29-year-old Wyche says she was diagnosed with depression and anxiety as a first-year law student at Harvard, and also  suffered several head injuries (?) that resulted in permanent memory problems and cognitive issues, requiring her to take several leaves of absence from her studies. She finally earned her law degree in 2013 thanks to Harvard granting her several doctor-recommended accommodations, including 50% extra time on tests, a separate testing room, and extra break time. She also was exempt from being called on in class, because of a propensity for anxiety and panic attacks.

Allow me to cut to the chase for a second, again in the interest of my dangerously bubbling brains, and perhaps yours.

This woman should not have been in law school. This woman was unqualified for law school. Harvard had an obligation to tell her so.  Harvard had an obligation not to accommodate her, but rather to avoid giving her a Harvard Law School diploma with which she could mislead clients into believing she was a capable attorney. Harvard had an obligation not to keep collecting tuition from a student whom it had to know couldn’t possibly be a successful or competent lawyer.

The law is an infamously stressful profession requiring both skill and constant, dispassionate analysis It requires crisis management and competent performance under pressure, and is no place for someone with “cognitive problems” of any kind, memory difficulties, or special vulnerabilities to anxiety and panic attacks. As a legal ethicist, my position is that a lawyer like Wyche would be obligated to inform any potential client that she suffered from these problems, to which any potential clients (or employer) without their own cognitive deficiencies would respond, “I see. Well, thank for your candor! Can you recommend another lawyer?”

When Wyche applied to take the New York bar exam in July 2013, she asked for the same accommodations Harvard had provided her. The board allowed her extra break time and a smaller testing room, but she had a panic attack during the exam, and failed it. This, she says, began to undermine her  standing as a “star” associate at Ropes & Gray. Ya think? Do you also think someone with cognitive deficiencies and memory problems would really be a “star” at that firm? Any firm? Would you want to hire a firm that regarded a lawyer with Wyche’s limitations as a “star’?

Tamara also failed a July 2014 bar exam even after the board granted her 50% extra time and a smaller testing room, but denied  extra break time. The board finally granted her request for double time on the February 2015 bar exam, and Wyche finally passed, according to her suit. She implies this is because she finally had the necessary “accommodations.”

Funny, I would say that it was probably because she had already taken the exam twice. Useful fact: Passing the bar exam the first time just isn’t that difficult, and there is a rebuttable presumption that a lawyer who can’t do so either 1) didn’t study hard enough, implicating diligence and judgment or 2) shouldn’t have been in law school in the first place.

On the other hand, maybe this is why Ropes & Gray thought she might be a star. After all, it takes her twice as long to do what other lawyers do, and firms bill by the hour.

Kidding!

But seriously, folks, this is a ridiculous law suit, bordering on a frivolous one. The loss of a job at an elite law firm does not constitute damages, since the denial of special accommodations by the bar were not the proximate cause of this result. The law suit is also a blazing example of the Streisand Effect. After this sorry episode is known in the legal community, and it will be, what law firm in its right mind would hire this woman?

_______________________

Source and Graphic: TaxProf Blog

 

14 thoughts on “Fairness To Incompetent Lawyers?

  1. So if she doesn’t get hired by anyone, she will open her own office and inflict herself on an unsuspecting clientele, without the benefit of the mentoring of senior practitioners. My law school experience did nothing to prepare me for the actual practice of law. I desperately needed (and got) help from senior members of the bar.(I worked in the local prosecutors office, and thus got a lot of courtroom exposure early and quickly.) When I went into private practice, I got help from the senior members of that firm. To this day, I hate getting involved in a case on the other side of a solo practitioner fresh out of law school, because they have absolutely no idea of what to do. Sounds like this lady is going to be coming solo into a system that is not going to be interested in the slightest about her deficiencies and certainly is not going to be kowtowing to her demands for special treatment.

  2. Well, gee. I should get an accommodation, too, then. I need a ton of money deposited into my bank account because I am anxious. A few million bucks would do me good right about now.

    Sheesh. To think a tall building law firm hired her.

    jvb

  3. Don’t agree that she could not be a good lawyer. Not a courtroom lawyer, not a lawyer under intense deadline for a brief, not a lawyer who has to negotiate under tense circumstances, etc etc. But there are legal responsibilities someone with such disabilities can undertake successfully. Researching and writing appellate briefs comes to mind. Often, there is ample time to research and prepare an appellate brief. Just better not put her on something with tight time constraints. Most activities that come to mind would not make her a “star attorney” as star paralegals can do them. However, many people with disabilities such as hers — ranging from anxiety to ADD can function extremely well in the right context.

    • Except that if that lawsuit is an example of her legal reasoning, I wouldn’t trust her with the appellate brief of a DUI conviction. Law is no place for people with any “cognitive problems,” especially not when so many graduates without such problems are begging for legal jobs.

    • I agree. She could be a successful lawyer in some non-litigation field. She could be a health care management compliance attorney for an insurance company. She might die of boredom, but she certainly would not suffer any job-related anxiety attacks.
      -Jut

      • Oh, I don’t know, Jut. I would imagine that insurance companies occasionally need compliance issues addressed by their attorneys. If the feds are conducting audits on the premises and they need an answer in a timely manner, I don’t think her claiming that she needs a couple of days to research something because Harvard accommodated her is going to cut it.

  4. >This woman should not have been in law school. This woman was
    >unqualified for law school. Harvard had an obligation to tell her so.
    >Harvard had an obligation not to accommodate her, but rather to avoid
    >giving her a Harvard Law School diploma with which she could mislead
    >clients into believing she was a capable attorney.

    Harvard may not have been legally able to do so.

    I teach at a school in Massachusetts. I’m not sure how much of my school’s student disability policy is law and how much is what the school decides, but my impression is that it’s mostly required by law, because my school’s other policies towards the disabled make me very skeptical that they would do this out of the goodness of their heart. We have to provide “reasonable accommodations”, which includes extra test time and the like, and if Student Disabilities Services signs off on it, we can’t ask questions.

    • I’d argue that they should have told her that in a competitive profession charged with competence and zealous representation of clients, special accommodations like what she requested are per se not reasonable, and let her take them to court. God knows Harvard can afford it.

      This is the One-legged Tarzan scenario.

      • Purely for the sake of argument, because I’m curious what your response would be: is it really Harvard’s place to make that decision? If she can pass the course with a legally-mandated disability accommodation, why is it Harvard’s responsibility to say “even though you can fulfill the requirements of the degree, you can’t be a lawyer”? Shouldn’t that be her own responsibility?

        • It’s Harvard’s job as an accredited AND prestigious law school not to graduate incompetent lawyers,and to be stringent enough in its standards to make sure that not only do incompetent lawyers not get a degree, but that lawyers who would deceive clients by representing that they earned a Harvard Law degree—aka. “the degree that says, “This is a very special lawyer”— graduate someplace else. It’s absolutely the school’s duty. Otherwise, why have standards at all? Why not just hand out degrees and say, “It’s on you if you can’t cut it”?

          • Good argument! You’ve convinced me, but I’m an easy sell.

            In my own field of mathematics… I don’t have an ethical problem with giving people extra time on a math exam. Math – at least, math as I use it – has its own stresses, but it’s not time-sensitive in the way law is. It’s rare that you would need to file a proof before the deadline or your client is going to math jail. So as long as someone can _do_ the math, I don’t really care how long it takes them. The time limits on math exams are really just there because some students would keep working till two in the morning if they had the chance, and I’m no longer twenty. If the student is going into a non-math major where time _is_ a factor, then it’s that major’s responsibility to screen for that, not mine.

            What I do wish we did is go after cheaters more strictly. I haven’t caught a cheater in one of my own classes yet, fortunately, so I haven’t faced that ethical dilemma, but it’s only a matter of time.

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