. Legal ethics

Florida chooses protectionism, and I choose to share a Friedmanesque public transportation anecdote

By way of any update on a recent post you can read here, and in something that should come as no surprise at all, the Florida Bar’s Board of Governors rejected the proposed change to its rules that would have created a mechanism for comity admission.  Everything about the way the matter was handled in Florida signals clearly that this was not about consumer protection but economic protectionism.  Florida lawyers vocally demanded to continue to be protected from competition in the marketplace by keeping the significant barrier of insisting on out-of-state lawyers having to sit for the bar examination, and the Florida Board of Governors listened.  Sigh.

Now, the anecdote.  (And by Friedmanesque, I mean Tom the columnist not Monroe the ethics lawyer, so the spelling is correct.)  I mentioned in an earlier post that I would be moderating a panel discussion at the AON Law Firm Syposium in Phoenix on issues of law firms dealing with aging lawyers.  That event happened last week.

Because I had agreed to speak to another group the next day, I had to depart in the late afternoon to make a flight.  Perhaps because of the time of the day, I won the Super Shuttle lottery.  Some of you may be familiar with the particular company, but surely all of you are familiar with the “shared ride” service where you save a few bucks on transportation cost to get from the airport to your hotel, or vice versa.  The trade-off is that instead of your own cab and a straight shot to the airport you end up sharing the ride with 5 or 6 strangers, and making multiple stops to pick up or drop off all of those folks on the way to your intended destination.

Well, I scheduled a ride with Super Shuttle to save my law firm a few bucks on transportation and ended up being the only passenger.  This meant not only smooth sailing but an interesting conversation with the driver which, because it focused entirely on questions of legal ethics, I will share in part with you.

The driver, perhaps because of how I was dressed or aware of the AON conference taking place at the resort or both, rightly identified me as a lawyer.  He then said he wanted to ask me a question:  “Why do lawyers do such bad things to clients, like stealing and lying?  They know what’s right and what’s wrong but yet they do what’s wrong.”  At that point, he didn’t know that ethics issues were in my wheelhouse, so I explained part of what I do and then we had what was (I think) a better-than-average conversation on the subject.

We covered whether lawyers engage in wrongdoing more or less than other human beings.  (I hold to my belief that the answer to that is no.)  We explored the idea that the “stressful profession” concept isn’t a very good excuse because almost everyone’s job is stressful to some degree and lots of people who engage in manual labor all day would trade the stress of their lives for the stress of a lawyer.  We talked about the fact that many lawyers, as a result of trust accounts and the like, have a lot easier access to commit financial wrongdoing than a lot of other people do.  As an example, I mentioned that if he had some sort of addiction to feed, he’d have a harder time stealing from me in his shuttle than a lawyer with ready access to other people’s entrusted funds would.

By the end, we hit one point that I don’t think I’d ever fully talked through before where lawyers might be a bit unique — we’re all educated to understand that there must be at least two sides to every story.  Thus, it might actually be a bit easier for lawyers to convince themselves to choose the wrong course of action over the right course of action, despite knowing which one is which, by gaming through the contrary point of view and using the skill set inculcated in them albeit skewed pretty heavily by the filter of their own immediate self-interest.  I’m not sure that this hypothesis is anything more than an exercise of pop psychology by someone without the appropriate degree but the same underlying principle does appear to drive behavior that I see when very competent, successful lawyers attempt to represent themselves in their own unpleasant legal situations.  They make decisions and arguments that they would never let a client they were representing undertake and often manage to allow their emotions to overwhelm them in a way that would never happen if they could objectively evaluate their own situation.