. Legal ethics

“Does this require a response?”

“Does this require a response?”  Print those words out and tape them to the top of your monitor or laptop screen.  They are words to live by.

Practicing law is stressful and always has been.  Lawyers have always known that they can make mistakes that destroy their client’s life or financial situation and potentially their own career in turn.  Practicing law is probably now more stressful than ever given how interconnected, information obsessed, and voyeuristic people have become, in no small part, because of the 24/7 culture and ubiquitous usage of social media.  Now, lawyers can severely damage their own careers, or the careers of others, seemingly overnight in ways that often are, at best, tangentially related to the actual practice of law.

Two separate instances I read about this week where one or more of the folks involved could have really benefited from the “Does this require a response?” approach to practicing law in 2015 have prompted today’s post.

The first involves a lawyer who has managed to avoid any sanction from a federal court in New York despite having sent a letter to opposing counsel characterizing what turned out to be a typo  “as a knowingly racist provocation.”  The two lawyers had agreed to a date for a site inspection to occur — September 10 — but when opposing counsel sent a letter to confirm the date the letter said September 14, not September 10.  Rosh Hashana, which the attorney would be observing, would fall on the September 14 date.

Now this item is almost unfair to include here because the answer to the question “does this require a response?” when receiving the letter with the wrong date, would actually be “yes.”  But the kind of response the lawyer made certainly was never called for and very difficult to fathom.  The only response truly required was a “don’t you mean September 10, like we agreed upon?”

The second instance is a veritable case study in unnecessary responses.  It involves a private exchange over LinkedIn that was then broadcast publicly by the offended party over Twitter and that has ended up leaving neither lawyer looking all that great (pun, again, not intended).  You can read the long version of the story here, but the short version is that an under-30 female lawyer sent a LinkedIn connection request to an over-55 male lawyer at a prominent law firm.  The male lawyer accepted and then sent a message complimenting the female lawyer on her “stunning” picture.  The female lawyer, offended, responded with a message to the male lawyer scolding him for his “unacceptable and misogynistic behavior” and advising him to “think twice” before sending another woman half his age such a “sexist message.”  The offended female lawyer also then put the male lawyer “on blast” by sharing the exchange on her Twitter account.  Male lawyer ultimately responded with a not-quite-apology in which he claims he was referring to the professional quality of her photograph.

So many aspects of this interaction are troubling.  First, the male lawyer knew enough not to write what he wrote because he actually typed out the acknowledgment that it would be probably politically incorrect to say what he was going to go ahead and say about her photo.  Pro tip:  If you know enough to actually type that out, just stop and don’t say the thing at all.

But, once received and no matter how much it offended the recipient, did it really require a response?  I wouldn’t think so, but surely there was nothing to be gained from even a private diatribe directed to the male lawyer much less an effort to humiliate the male lawyer before a larger audience via Twitter.  And, then, even at this point, the male lawyer should ask whether any response is really required.  Reasonable minds can differ, but, again, a simple “I’m sorry I offended you”  would work a lot better than the highly implausible effort to claim to be talking about the quality of the photograph, not her looks.  Because we all now how politically incorrect it is to comment on digital photography quality these days ….

From a pure ethics standpoint, there really isn’t a lot going on in the second example.  Although we have an ethics rule, RPC 4.4(a), that makes it unethical to “use means that have no substantial purpose other than to embarrass . . . a third person,” that rule only applies when a lawyer is representing a client.  The only rule that exists in most jurisdictions that touches on racism, sexism, and the like is RPC 8.4(d) which prohibits conduct prejudicial to the administration of justice and does not outright require a lawyer to be acting as a lawyer representing a client.  Yet, as explained by Comment [3] to the rule, knowing manifestation “by words or conduct” of certain types of bias or prejudice can trigger a violation of this rule but only if it is in the course of representing a client.  And this same comment is the one that provides a safe harbor for “legitimate advocacy.”  The ABA Model Rule specifically lists “race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status” as the problematic bases for bias or prejudice in the comment.  It is worth noting that the ABA’s Standing Committee on Ethics and Professional Responsibility has proposed that the Model Rule be revised to put a new (g) directly into the rule itself that would prohibit lawyers from “knowing harassment” or “discrimination” on such bases.