X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In reprimanding one lawyer for unprofessional conduct this past November, U.S. District Judge Harold Baer Jr. turned the spotlight on the legal profession as a whole. Baer rebuked law firms for what he called a “decriable” trend: the increasing focus on the business, rather than the profession, of law. The rebuke came in the case of Wolters Kluwer Financial Services v. Scivantage , a trade secrets dispute in the Southern District of New York. Baer was reprimanding Kristan Peters, a lawyer formerly with Dorsey & Whitney, which represented Wolters Kluwer. The vast majority of his 129-page opinion was devoted to Peters’ behavior. But at the beginning and end of his opinion, Baer turned to the state of the legal profession today. The following excerpts omit citations and footnotes. To fulfill its promise of providing the fair and ordered administration of justice, our legal system depends upon lawyers and law firms following ethical guidelines. To be sure, zealous advocacy by attorneys is not only expected, it is commendable. Nonetheless, there is a line beyond which such aggressive representation gives way to misconduct. While frequently under fire, attorney behavior remains largely self-regulating. Lawyers are entrusted with ensuring that both their own conduct and that of their colleagues fall within the bounds of the rules of professional responsibility. Occasionally, as here, this responsibility leads lawyers to bring questionable conduct to the attention of the court. Often, though, to avoid public criticism, lawyers settle amongst themselves without court involvement. And to a large extent, courts — even when aware of the misconduct — are satisfied to allow such self-governance among lawyers. However, the expectation that lawyers can and will resolve questions of attorney behavior without the intervention of the courts — and thus without the threat of official oversight — is hardly a license for lawyers to sweep transgressions under the proverbial rug by settling out of court. From time to time, a lawyer’s misconduct is so grave and so blatant as to demand more. When such lapses occur in the federal courts, it is not only our prerogative but our responsibility to address them and, where appropriate, impose sanctions. Indeed, as Canon 3B(3) of the Code of Conduct for U.S. Judges makes clear: “A judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a .�.�. lawyer.” The instant case, unfortunately, has been marked by a myriad of just such “reliable evidence” of attorney misconduct serious enough that this Court felt compelled to act. Sadly, the nub of the problem may not be just the behavior of one or two attorneys or law firms, but a much broader problem that has affected the practice of law generally over the last twenty or thirty years and has in the eyes of many turned what was once a profession into more of a business.
A BRIEF HISTORY OF BAER
by Dirk Olin It might seem counterintuitive when discussing a federal judge, but Harold Baer Jr. seems to have a problem with authority. From the bench, he’s famously ruled for both prisoners and protesters, and he doesn’t seem terribly fond of certain factions of the police force. He fined New York City for forcing inmates to wear more than one pair of shackles during travel, and he ordered the state to widen the space between prison beds to six feet. He ruled that the mayor’s office could not limit the number of protesters on the steps of City Hall — though that was bounced on appeal — and declared that members of the Ku Klux Klan could demonstrate while wearing masks to hide their identities. (The First Amendment extended to the protection afforded by anonymity, he ruled.) But his biggest headlines came in 1996, when he suppressed evidence — 80 pounds of cocaine, five pounds of heroin, and a videotaped confession — seized by cops in the Washington Heights neighborhood of Manhattan. Baer also questioned the testimony of one of the police officers involved and credited the conflicting testimony of a defendant. The decision prompted national outrage and plenty of impeachment talk from many quarters, including members of the Clinton administration that had nominated him. Baer eventually reversed himself. Some observers trace Baer’s antiestablishment streak to a high-profile post he held during the early 1990s, when, as a member of the so-called Mollen Commission, he investigated New York City police corruption. Where his lamentation about big-firm culture comes from is a little less clear, as he headed up litigation for the now-defunct Guggenheimer & Untermyer for many years. But it’s also true that his wing-tipped days ended back in the warm and fuzzy ’80s, when white-collar defense work was so much more rarefied and elegant and civil than it is today.
Dirk Olin is editor in chief of JudicialReports.com. This article first appeared in The American Lawyer, an ALM publication.

This distinction between the legal profession and a business was eloquently explained over thirty years ago by the Honorable Charles D. Breitel, while Chief Judge of the New York Court of Appeals: “A profession is not a business. It is distinguished by the requirements of extensive formal training and learning, admission to practice by qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and, notably, an obligation on its own members, even in nonprofessional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation.” Chief Judge Breitel’s assessment echoes that of former Harvard Law School Dean Roscoe Pound, who had earlier defined a profession as “a group .�.�. pursuing a learned art as a common calling in the spirit of public service — no less a public service because it may incidentally be a means of livelihood.” More recently, the New York Committee on the Profession and the Courts more frequently referred to as the “Craco Report” after its Chair Louis Craco observed, the rising number of lawyers and the de-localization of practice have “heightened the commercialization” of the practice of law. Gone are the days where the ambit of a lawyer’s practice extended only so far as the county court house on the town square. Today, firms are expanding in size and number, and how often boast national, even international, reach; likewise, clients and their legal needs have become ever more numerous and complex, with the stakes continually rising — not only in terms of the issues and amounts in controversy, but in the fees that attorneys earn. The legal profession has seen a transformation wherein the naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of the law, subordinating high standards of service, collegiality, and professionalism as a result. As the Committee further observed: “[t]he rise in the mobility of lawyers weakened the ties to firms, institutions, and communities in which professional standards traditionally had been articulated and enforced .�.�. kept in check by the cultural mores of the relatively small legal community.” Thus, a dismaying erosion of civility in practice has often accompanied the expansion of our legal profession. Such incivility “commonly manifests itself as rudeness, refusal to accommodate a colleague’s schedule, judge baiting, or harassment during depositions. .�.�. [A]lso included under the umbrella are sharp practice tactics such as misrepresenting facts to the court or an adversary and including false information in unsworn documents.” However, while the idealized notion of the small-town lawyer is an anachronism, the idea that civility among lawyers is incompatible with full and effective representation should not be. Indeed, while Rule 7-101 of the Lawyer’s Code of Professional Responsibility obligates a lawyer to provide zealous representation, it provides at the same time that “[a] lawyer does not violate [this responsibility] by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.” So, while our system is by its very nature adversarial, it goes without saying that such a system expects — indeed, requires — a measure of civility. Nor will our system long survive as it is if we tolerate the use of misleading or downright false statements by lawyers — to opposing parties or to the Court itself — in an attempt to secure a favorable outcome for their clients and themselves. These and other examples of ethical misconduct are quite simply unacceptable. Such conduct is a drain on valuable judicial resources: when, for example, a litigant misleads the Court, it necessarily takes more time for the Court to try and sift through the facts and separate truth from falsehood. As important, incivility and contentiousness tend to undermine public confidence in the efficacy of the legal system. Finally, when a lawyer deviates from ethical norms he or she acts to the serious detriment of the very individuals that have sought his or her counsel with the expectation of competent, acceptable methods of representation.

* * *
While I am dismayed at the way in which many law firms today approach the practice of law, I realize that for the most part it is none of my business and indeed not the business of the judiciary in general. The fact that partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours — or at least the ones that count — often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt major internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession. While decriable these are as I said really not my concern. Rather, it is the fallout from such conduct, some of which we witnessed here, that ineluctably drives some lawyers and some law firms to the kind of conduct that played out before me at this hearing and that then becomes the business of the courts. On a final note, the reader should be clear that I firmly believe the sentiment expressed in the Craco Report that “the actual level of professionalism brought to bear .�.�. by thousands of lawyers across the state, in court and office, day in and day out, is extraordinarily high.” I am hopeful that by casting a ray of light on this anomalous and sanctionable behavior the public and the profession will be better served. Reprimands are hereby imposed. .�.�.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.