I have gradually discovered, over the past few months, that the association of legal ethics lawyers in which I am a card-carrying member is, in fact, biased, partisan, and not particularly ethical at all.
Membership in the group is considered a credential and an important one, especially since few legal ethics experts have degrees in the field. (My mentor in the area, Michael Daigneault, is one of the few who do.) I don’t belong to the association because of the credential—membership in the ABA ethics section is regarded as a credential too, and that association is crippled by bias, so to hell with it—but because it once seemed like a useful network and because the listserv keeps me relatively informed of major developments in the field.
I knew the group was overwhelmingly left-biased because the whole legal profession is left-biased. Conservative members generally foxhole during discussions that turn political, and they often do. When I have decided to be Popeye (“It’s all I can stand, ‘cuz I can’t stand no more!”) and point out a particularly annoying outbreak, I receive sheepish emails off site from members who tell me that they agree with me. They just don’t have the guts to say so on the site.
Last month, as I have mentioned here, I raised for discussion the difficult problem of how to square the legal profession’s protection of its many (MANY) alcoholic and substance-addicted lawyers with the duties of candor and communication to clients, supposedly a core legal ethics requirement. The group’s reaction was to “circle the wagons,” deny the problem, and attack me. When I responded in words I believed were appropriate to the attacks, I was singled out and threatened by the group’s president, who said that he had received complaints about my “incivility.”
Translation: Non-conforming positions that made some members uncomfortable are not welcome. Shut up, Jack.
I haven’t participated since. I had already been disillusioned twice in the previous weeks, once when the consensus was that ethics lawyer somehow get an exception from the legal ethics duty to report lawyers they know are unfit to practice ( it would take too much time, you see) and that the fact that bar associations, contrary to the public’s belief, not only do a terrible job policing the profession but intentionally make it difficult for the public to flag unethical lawyers. “How dare you!” would be my summary of the group’s reaction to my pointing out that fact.
Today I saw a post on the listserv by an esteemed member whose signature contained this as a feature:
“A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.” —-Declaration of Independence
So now I have to put up with partisan, No Kings, Trump Deranged virtue signaling. I am sorely tempted to drop a note with the coda, “These people are crazy.” —President Donald J. Trump, 2026 State of the Union Message.
I’m sure I would again be the target of censorship, and maybe, finally, banned. On one hand, I still find the listserv a valuable resource. On the other hand, as Captain Hook would say, they are hypocrites and unethical., and somebody ought to tell them.
Now what?
Ethics Alarms 
I am in the same group, and have avoided the listserv for years. I’ve no doubt lost out the positive aspects of the listserv. But there is no shortage of other things to read.
I think the right needs consider forming independent institutions. Progressives have shown themselves to be incapable of rational thought, and they are sending society to hell.
To keep with the piratical analogies and metaphors, give them a full broadside. And refuse to go away. Fight them tooth and nail.
“[T]the whole legal profession is left-biased.”
How and when did that happen? I graduated from law school and got my license in 1981. Went to work in a standard issue big firm that represented businesses and defended plaintiffs’ lawsuits and did estate plans for rich people. I assumed everyone was a Republican. I met criminal defense lawyers who the first thing out of their mouths in any setting would be “Cops lie! They lie all the time.” And there were plaintiffs’ lawyers who acted as if they thought corporations were evil (but presumably indispensable to their getting huge verdicts). Have conservative business lawyers simply been forced into retreat?
Nah. Business lawyers simply don’t waste their time dealing with stupid arguments made by do-gooder legal aid lawyers. We are simply too busy trying to keep the IRS or the FBI out of our clients’ affairs to worry about that nonsense.
jvb
So, it’s just noise around the edges. Good.
And then there’s “Give ’em Hell!” Or as Harry Truman explained, tell them the truth.
You’re not just breaking their thinking patterns, which is difficult enough. You’re breaking their self-image, virtue-signaling, and a powerful sense of “communitas” (Victor Turner) within their sub-ranks. It’s not a rhetorical dilemma as much as a Freudian one. In that light, you’ve already implied to yourself the best advice: use the list serve as your reference as needed; don’t try; don’t even hope. Translation: “Shut up, Jack.”
The Left wouldn’t recognize a tyrant if the tyrant spied on its opponent’s campaign, propagandized an overwhelming proportion of the media against that political opponent, sabotaged the entire economy because that opponent gained power, invented crimes to justify searching and jailing that opponent and his cabinet, and when all that failed, radicalize followers to assassinate that opponent.
What has Trump done to be called a tyrant?
“What has Trump done to be called a tyrant?”
Beaten Lefty not just once, but twice, and denied Hillarity and Kacklin’ Kamala their “due.”
PWS
I suppose the bottom line is how taking the fight to them will affect your career, reputation and earning potential. Only you can decide if you want to risk everything to expose their stupidity and hypocrisy.
Will be interested in the outcome.
“Now what?” I already addressed your questions about this issue. You want people to take you seriously? Show them you take their concerns seriously. That doesn’t mean you can’t still set boundaries.
This may be a battle worth fighting, but if you want to win, then you need to fight differently than you’re used to.
Jack, as a lawyer, you attempt to prove that you’re right, at which point you expect that the other side must concede and do whatever it is you think they ought to do. That works in a court of law and in other contexts where there is an authority who will render a binding judgment.
In most contexts, though, no one has jurisdiction to decide and settle the dispute we find ourselves in. The other side has no obligation to do what you think they should do, no matter how well you “prove” it. Instead, we have to negotiate. That means that we have to understand what other people want and figure out how to align their interests with ours. (Or we inspire a fanatical army to lay waste to our enemies, which is more convenient and fun than listening to people we don’t like, but that comes with a whole host of other problems and society generally frowns upon it.)
In the absence of a judge, you don’t win an argument against someone you back into a corner. You win against someone when you open a line of retreat for them. You destroy your enemies when you make them your friends. You defeat your foes when you understand them so well you can’t help but love them. If shouting and punching is all your after, then feel free to keep doing that.
The outcome you’re aiming for seems obvious. You believe that clients are entitled to make an informed decision about what lawyer to hire based on whether the lawyer has a history of alcoholism. You don’t want a client to unknowingly bear the risk of a lawyer relapsing.
That’s a valid concern. It’s a boundary you get to set. It can’t be “wrong”, no matter what anyone else says. That is an anchor value for you. (It might bear some clarification, though. How do you see your concern applying to pro bono and public defender work? What about other chronic medical conditions?)
Next, what are other people saying? What are the concerns behind what they say? Are they concerned about what happens to the lawyers who are alcoholics? What about the ones who have been sober for years? Their concerns aren’t “wrong” either. What do you expect those people do to? This is not a rhetorical question to shut down your concerns: The better your answer, the more people will take you seriously.
Would you approve a lawyer saying that they’re an alcoholic but have been sober for five years and regularly attend meetings? That that might be good start. How do we encourage lawyers to seek treatment and stay sober? You can’t just say “that’s their problem” because you’re talking to people whom you can’t force to deal with that problem. There are enough of them, though, that they can force other people to deal with the “relapse” problem. But if you can present them with a way to seek and stay in treatment that they can accept, they lose their reasons for opposing you. Not only that, but it will be easier to attract people to your side to put pressure on the few holdouts.
Being pragmatic doesn’t mean compromising your principles. It means understanding and acknowledging someone else’s point of view even though it seems obviously wrong and destructive, but that does not mean expressing agreement with their beliefs. It means showing them basic respect even if you think they’re terrible people, but that does not mean letting them control the conversation. It means helping them find a better approach to their situation even if you think that’s something they should do themselves, but that does not mean acceding to whatever they want.
It’s clear that you’re dissatisfied with the results you’re getting using your current approach. When you’re finally ready to try a different approach (and stick with it long enough to see the impact), let me know. You deserve to be taken seriously. You just need to apply the principles that make that happen.
TYhe problem is, EC, that ethics isn’t up for compromise. Let’s say compliance officer tells an exec that the company can’t take kick-backs. The exec says, “Oh, come on, everybody does it!” Is the compliance officer supposed to say, “OK, how about this: take half as many kickbacks!”
This is an ethics expert association! The legal ethics Rule on communication is in black and white. If one knows anything about alcoholism—and I know a lot—one knows that an alcoholic, even after years of recovery, is at risk of a relapse. The most insulting of the members who attacked me said that she knew lawyers who were “recovered alcoholics.” Well, there is no such thing. I told her that she didn”t know what she was talking about, and that was true. Or should have said, “OK, SOME alcoholics recover…” to compromise?
“The problem is, EC, that ethics isn’t up for compromise.”
I explicitly said you don’t need to compromise your principles. Finding anchor values and setting boundaries is the first step in the method I use.
You should have corrected their assumption about how alcoholism works more respectfully, so that they wouldn’t get defensive. Defensive people will try to prove you wrong to protect their egos and to prevent the rude arrogant person from getting positive reinforcement.
For example, “I think the term ‘recovered alcoholic’ may be misleading. I’ve known people with alcoholism as well. Speaking from my own experiences, their alcoholism never goes away. An alcoholic may be sober for years, certainly, but they are still at risk of a relapse. That’s a risk their clients take on, whether or not we acknowledge it.”
Respectful but firm. Intellectually humble but assertive. This is normal for me. I was taught… over a long time… that civilized adults talk in this manner. Is it not accusatory enough for you?
Have you ever stopped calling wrong people idiots long enough to notice that people start listening to you more? I might know for a fact someone is wrong, but if I voice my dissent as doubt or confusion then they’re far more likely to correct themselves. What’s more, they appreciate that I allowed them to save face by giving them the opportunity to handle it themselves instead of forcing them to defer to me. If they keep insisting on their conclusion, then I can start talking about how I arrived at my conclusions and what I’m concerned will happen if we rely on wrong information. (As a bonus, if it turns out that I’m wrong, or I misunderstand what they’re saying and they’re not wrong, I don’t sound like an arrogant fool.)
Maybe lawyers don’t have to learn social skills, but this approach has made me much more respected than I used to be.
That’s weenieism, EC. I don’t think ‘recovered alcoholic’ may be misleading. It’s flat out wrong. Someone who uses that argument is arguing in bad faith, and should be called on it. If one stoops to using false evidence, what makes you think that individual is open to discussion?
I don’t call wrong people idiots. I call people who think bad facts are good facts and who don’t or can’t use logical reasoning idiots, because they are.
An old friend of mine wrote an asinine post on Medium about how the fireworks in DC were causing climate change, and it included this sentence: “Do I need to remind my readers that FOX News was guilty of knowingly lying to their listeners and paying nearly a $Billion$ fine?” I wrote,
It’s bad form to complain about false media reporting and then to post “that FOX News was guilty of knowingly lying to their listeners and paying nearly a $Billion$ fine.” That’s not true in several ways. 1. Fox wasn’t found guilty of anything: there was no trial. 2. The issue was alleged defamation, not “lying to their listeners.” The First Amendment protects networks from being punished for lying; otherwise, MSNBC and CNN would be indicted every day. 3. There was no “fine.” A settlement is not a fine or even damages.
Spinning like that removes an essay from the realm of enlightening commentary to just partisan talking points.
I’m sure he’s pissed off at me. Tough. He deserved it.
Alright, let’s say I’m in a bar and I see a big tough guy. Then someone else walks over and deliberately knocks the tough guy’s drink over. The tough guy beats up the other guy. I tell the tough guy he’s going to be arrested for battery. He says that only a weenie would have let the business with the drink go unchallenged. I say that there are laws governing how people respond to offenses, and staying on the right side of those laws doesn’t make a person a weenie. He could have ordered a new drink and held onto it, and the other person wouldn’t have been able to do anything without provoking genuine self-defense. He could wait a few seconds for the other person to be kicked out of the bar. Choosing the effective route instead of the route of inflicting pain doesn’t make you a weenie.
Do you agree with my position?
Now you’re the tough guy. Someone has knocked over your drink by quoting bad facts and failing to use logical reasoning. In response, you’re trying to hurt their feelings. If you don’t hurt their feelings, you fell like you’ll be a weenie, failing to stand up for what you know is right. In doing so, you’re harming your own cause. The laws you’re violating aren’t criminal or civil laws; they’re laws of human nature. By acting without regard for the laws of human nature, you’re putting yourself in a worse position. By deliberately attacking people’s feelings, you’re ensuring people will see you as the villain, just like the tough guy ensured the law would see him as a criminal by beating someone up.
I’m telling you that if you act within the laws of human nature, you’ll create the effect you want without having to give up anything. Any decent martial artist will tell you to deescalate the situation before attempting to resolve it with violence. The better victory is to win without fighting. It doesn’t matter if fighting feels good to you. Being too quick to fight will destroy that which you want to protect. People will shoot the message because they don’t like the messenger. Your principles deserve better representation than you’re giving them.
If you don’t believe me, I challenge you to watch how it’s done. You point me at someone and don’t interfere, and I’ll show you how to make them retract a false statement.
1. No. At very least, the tough guy should have put the asshole in a headlock and thrwon him out of the bar himself, saying, as a true threat: “If I see you again I’ll knock your teeth out.”
2. I didn’t say “you don’t know what you’re talking about” to make her feel bad. I told her that because she didn’t know what she was talking about.
Oh! Do Alizia! Do Alizia!
Just this morning you posted about a guy you and your friends weren’t very nice to because he annoyed you with his lack of social skills. Among your legal colleagues, you’re that guy, and they’re trying to ditch you. Being right won’t make up for that, because they won’t listen to you long enough to realize you’re right. They won’t want to give you the satisfaction. From their point of view, they’re the tough guys, and you’re the one knocking over drinks. You have never given them any reason to want to reconsider that perspective. That’s why whenever you make a compelling point, they filter it out.
I could pull out the Elwood P. Dowd quote again, but at this point, I’ve explained the same thing enough different ways over the years that it’s pretty clear your hubris won’t allow you to consider that your way of doing things might be self-sabotaging. If you were a hostage negotiator, you’d rather see all the hostages die than express any sympathy or appreciation for the hostage takers’ motivations.
Since you don’t want my help or even a demonstration, the only thing I can do is offer a warning: On your current path, you will drive people further from the truths you want them to accept. You will preach to the choir, because the congregation has abandoned you. People who agree with you will echo you, and people who disagree with you will dismiss you. You will never change anyone’s mind, because you will never contradict their assumptions about you. Good luck.
A warning for everyone else: If you want the country to get better, don’t be like Jack.
1. I didn’t say I WOULD punch his teeth in, I said, with the capability of doing so, I would threaten that.
2. I didn’t say it to make her feel bad. She attacked me, and I wrote that to make it clear that her attack bounced off because it was BS.
I also did ask for a demonstration. It’s unethical to complain about a response when you didn’t take the time to read it!
Ah, sorry, I missed the P.S. I was reading the email notifications, and didn’t get one for your response to yourself, so I overlooked it. (I miss when WordPress sent emails for all comments on the post, not just direct replies.)
I’ve already spoken with Alizia. You’ve seen our discussions. The most recent one ended with mutual respect, I think. Unless we’re arguing over a concrete policy as opposed to abstract ethical theory and theology, though, there isn’t much to be accomplished. What do you think, Alizia?
Jack, I suspect part of the reason your colleagues are unwilling to speak out is because they don’t want to be associated with you and your approach. A more affable approach would encourage more people to support you.
1.No. They, like most ideologues, are afraid to show open-mindedness in a bubble of conformity
2. No, the point is to make the asshole believe you will punch his teeth out, or that it’s a enough of a risk not to call your bluff. I have had great success with this strategy with power abusing bureaucrats and others over the years, and righted a lot of wrongs with it. (Not threatening actual violence, of course.) It works if you are convincing enough. My favorite line: “Go ahead. Call my bluff. I WANT you to. I will enjoy doing this.”
3. You wrote “You point me at someone and don’t interfere, and I’ll show you how to make them retract a false statement.” You haven’t made Alizia retract anything. That’s moving the goal line. You know better.
Alizia, would you like to provide a statement that you think Jack will disagree with?
EC: you seriously don’t understand that there are facts? Fact: Rule 1.4 of the ABA Rules of Professional Conduct states that lawyers must…MUST inform clients of information the clients need to know to make informed decisions about the representation. Fact: a lawyer who suffers from alcoholism may be considered a less desirable choice as attorney for a potential client than one who is not, so I suggested that alcoholic lawyers had a duty to tell the clients. I raised the question for discussion: I can see why the question is problematical. But the reaction was 1. “How dare you?” and 2. “Alcoholism doesn’t necessarily pose a risk” which is factually false. I’m the one without an open mind?
“…I suggested that alcoholic lawyers had a duty to tell the clients. I raised the question for discussion…”
When you first posted about this topic on June 21, I got a different impression about how you brought it up in the Listserv. What exactly did you say?
“Fact: a lawyer who suffers from alcoholism may be considered a less desirable choice as attorney for a potential client than one who is not…” “…’Alcoholism doesn’t necessarily pose a risk’ which is factually false.”
You’re right, but I think we need more context here. What are some examples of things which lawyers generally agree must be disclosed to clients under rule 1.4? What medical conditions, mental illnesses, extreme sports, or rigorous hobbies do lawyers already believe clients have a right to know about before hiring them?
I would consider your mind somewhat open, but in this case I’m pretty sure the problem is that you opened your mind long enough to decide your position and then you closed it again. You drew your conclusion so swiftly, decisively, and unshakably that no one in your Listserv could tell it was open in the first place. That detracts from your credibility. You know how much thought you gave your conclusion, but to everyone else it looks like your explanations are rationalizations after the fact to justify your conclusion. Part of that is they’re biased towards their own conclusions, but your approach does nothing to shake that bias.
“What are some examples of things which lawyers generally agree must be disclosed to clients under rule 1.4?”
Irrelevant. Obviously alcoholism isn’t one of them, and that’s because so many lawyers are alcoholics. You are not obligated to tell a client if you are under investigation for conduct calling into question your fitness to practice either, but obviously that is something a client or potential client would want to know. That is the whole reason I raised the issue. The Rule states in relevant part:
A lawyer SHALL (must):
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(4) promptly comply with reasonable requests for information; and
(b) …explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
I suggested that it should be part of a client’s right to KNOW that they have a right to ask “Are you currently suffering from any addiction or substance abuse problem, dementia, or any serious injury, illness or disability that reasonable might interfere with your ability to handle my case?
They acted like I said that a lawyer must strip naked for each client.
It’s relevant because knowing what people already accept as covered by 1.4 helps you present your suggestion in a way that makes sense to them. Have you ever read The Seven Habits of Highly Effective People? “Seek first to understand, then to be understood” doesn’t mean “I understand that they’re idiots. Now to show them I’m right!” It means understanding why what they believe makes sense to them, and engaging with that paradigm. (If you understand what you believe, you will be able to convey it even in someone else’s framework.)
In this world, just being right doesn’t make you persuasive. I’d like to assume you already know this, but you keep trying to shove your conclusions into people’s faces. You’ve got the square peg for the square hole, but you’re trying to put it in sideways. Empathy mindset is what you need for feeling out the right angle for what you need to communicate.
“I suggested that it should be part of a client’s right to KNOW that they have a right to ask…”
That’s different from how I understood it before. Alright, so clients need to know about their right to ask about substance abuse or other medical and mental conditions that could compromise service. That’s how you broached the subject? That’s what scared them?
Not the part where someone opined that a person several years sober was not “currently suffering from any addiction or substance abuse problem” and, rather than asserting that your experiences indicated a different conclusion, you insult her intelligence by saying she doesn’t know what she’s talking about?
Maybe she really doesn’t; that doesn’t matter. Just because something you say is true doesn’t mean it can’t be an insult. There are ways to present the truth that aren’t insulting. Maybe she’s been deceived by her friends. Maybe she’s in denial. Maybe she’s just making assumptions. If you want her to consider that you’re right, you don’t smack her in the face.
And you certainly don’t demonstrate that you’ve rejected any possibility that you might be the incorrect one by dismissing people with such confidence. If someone doesn’t already defer to your expertise, then extreme confidence makes you look less credible, especially if you start tearing people down. You may be right, but you act like thousands of people who don’t know what they’re talking about. People’s mental defenses come up and filter out what you actually say. They won’t have any indication that they should make the effort to lower their mental defenses and listen long enough to consider how you might be right. You are unnecessarily engaging in behaviors that are below the zero mark on the Cognitive dissonance scale.
If you want anyone to listen to you who doesn’t already think you’re right, you need to admit that you’re disregarding some basic principles of communication.
EC, these are professional ethics experts. They know what the rule says, and it’s unambiguous. The group is corrupt and conflicted, and reacted defensively when I raises a topic they didn’t want to think about. I was and am disillusioned. Someone insisting that an alcoholic who is currently sober is as trustworthy as a lawyer with similar skills but no addictions is just engaging in denial. How do you reason with denial, other than to say, “You’re in denial”?
You reason with denial by first lowering your expectations of the person in denial, so that you don’t fly off the handle when they disappoint you. Then you lower the emotional stakes for them, showing them that what they’re denying isn’t so scary.
I looked up the legal ethics rules on the ABA website, and I see some rules referring to informed consent on conflicts of interest, but I can’t find anything referring to a lawyer’s likelihood of incapacitation. What rule is that listed under or derived from? If it’s not explicitly written, they might be using that as an excuse, via rationalizations like Marion Barry’s Misdirection (“it’s not illegal”) or the Compliance Dodge. If so, that means hitting them with the rulebook won’t work, and a different approach is required.
Look, you asked us for help because your way of doing things isn’t working and you’re at a loss. Now I’m giving you the concepts you need–not ones I made up, but basic concepts that many adult humans are familiar with and successfully use everyday–and you’re rejecting them because they don’t fit with your assumptions about how people are supposed to respond when you tell them they’re wrong. Those assumptions are what are holding you back.
I’m not asking you to blindly accept anything I say. I’m asking you to honestly consider it. You’ve brushed off some of my questions, and your own questions indicate that you’ve been missing some key points.
Please answer this question honestly: Using your imagination, if you took my advice and people started to take you seriously, what feelings would you have about that, and how would it affect how you see yourself and other people?
“but I can’t find anything referring to a lawyer’s likelihood of incapacitation”
That’s not mentioned specifically; the rules are more general by design. Rule 1.4: Communication.
I never said my way of doing things isn’t “working.” Fighting entrenched conflicts and corruption is hard. Most people go along to get along. I don’t. When most people find the establishment is hide-bound and resistant to change, they give up. I never have. And never will. The ethics lawyers are a little club, and they won’t rock the boat. That’s going to be a problem. I honestly thought they would show more integrity.
So it seems that Rule 1.4 doesn’t define what circumstances require informed consent. Other rules mention conflicts of interest, so that seems obviously relevant. I found nothing in the rules about the lawyer’s risk of incapacitation. Suspending judgment for a second on the issue of an average alcoholic’s risk of incapacitation, what are some examples you’ve seen or heard of where a lawyer has had to inform a client about the lawyer’s risk of incapacitation (not a planned absence)?
I never suggested that you go along to get along, nor that you should give up. I’m saying that there’s a more effective approach than the one you’re using. You’re sabotaging your mission of protecting clients from alcoholic lawyers by refusing to understand the hide-bound people you’re trying to influence.
…
…
If that’s what “working” looks like, I think an erudite fellow such as yourself can exceed that standard. After all, it’s a “fact” of human psychology that telling someone they don’t know what they’re talking about will make them avoid listening to you. Since you don’t have the authority or social status to force your fellow lawyers to listen anyway, you can already start to do better just by taking this “fact” into account when you speak with them.
I’m going to ask you a second time, and if you want to respond privately that’s fine. Using your imagination, if you took my advice and people started to take you seriously, what feelings would you have about that, and how would it affect how you see yourself and other people?
If you’re uncomfortable with the answer, I promise to help you find an answer you can make peace with.