The soul of the legal profession has been eroded with constant demands and constant communication.
What was practicing law like 40 or 50 years ago? As a young lawyer, I find it miserable in this modern world with constant communication, emails, etc.
The practice of law 40 or 50 years ago was immeasurably different than it is now. Perhaps the best way to summarize the difference is that one had more time to work and reflect on representing a client and the practice was much more personal. Another major difference was there were not nearly as many lawyers. As a result, everyone sort of knew each other and there was regular contact between members of the bench and bar.
Personal contact was everything. Lawyers got their business through involvement and doing a good job for their clients. Clients’ referrals were a major source of business. The other major source was being active in the bar association; being active with the political party one was associated with, often as a committeeperson; being active in service clubs; being active in the Army Reserve or veteran’s organizations; being active with one’s church or synagogue; etc. Advertising was not allowed 50 years ago. Advertising was first allowed only after the U.S. Supreme Court approved legal advertising in 1977. Direct mail advertisement was not allowed until 1987.
As a result of the need for such personal contact, the practice of law was a very enriching business from a personal standpoint. A lawyer was involved in everything—community, church, politics, military, etc. The lawyer would often be a speaker. This constant contact with different people helped to make a much better lawyer and ultimately, a much better judge. People skills were at a premium.
There was very little of the nastiness that modern law has brought about. Perhaps because of the computer, many people will send letters and emails without any real thought and often times, the letters are extremely personal, often ill-advised, and very demeaning. The principal sport nowadays is to try to undermine one’s opponent by attacking their lawyer. That would have never happened 40 or 50 years ago. Trials were not nearly as complicated. In this modern world, depositions are taken of everyone and everything and depositions seem sometimes to last forever. Discovery is a major project with e-discovery and everything else. That wasn’t the way it used to be.
Trial skills were far better. Lawyers had an opportunity to try cases. Civil arbitrations didn’t really become prominent until the late 1970s and 1980s. Alternative dispute mediation did not begin really until those time periods. Most cases went to trial if they couldn’t settle. There were very little plea bargains in the criminal world. Cases went to trial and everyone was on trial. Lawyers knew how to cross-examine. They didn’t have file books with every question printed out. Lawyers knew how to practice and try by the seat of their pants and they did very well.
There was camaraderie 40 or 50 years ago. People actually liked each other. Lawyers who were opponents would often go to lunch together or dinner. It was a common practice of waiting for jury verdicts where the lawyer would retire to the bar across the street from the courthouse until the verdict happened. Defense lawyers and prosecution lawyers and many times the judge would sit and have a drink. This developed good relationships and many good friendships.
Perhaps the most major difference of all is the constant communication. The lawyer doesn’t have time to think anymore. Those who carry smartphones where they can constantly email and communicate in text are constantly communicating. One’s email is constantly being filled up. When a lawyer comes back to their office at the end of a trial day, oftentimes there will be 50, 100 or 200 emails. This is in stark contrast to 50 years ago. In those days, there used to be two mail deliveries. The older lawyers of 70 or 80 years ago would tell you there used to be four to five mail deliveries. The mail would come in and then the lawyer would dictate the mail. The rest of the day would be some telephone calls and then working on cases. One could actually work on substantive issues without constant interruptions. With the modern practice of law, one spends probably 70 to 80 percent of their time just answering emails and mail. To do substantive work now one has to work evenings, late at night or on weekends. The modern lawyer, when they go on vacation, is overwhelmed with the amount of communication. A lawyer 40 or 50 years ago when they went away, made usually one telephone call a day to deal with emergencies and briefly review mail. One could actually enjoy their vacation. In those days, lawyers actually had secretaries who were extremely competent.
Practicing law was just not as expensive either. One would have thought that modern technology would make the practice of law cheaper. But, it hasn’t. It results in much more time being spent and much more money being spent on computers, on programs, on devices, etc.
Forty or 50 years ago, lawyers felt more involved in the process. Nowadays, most people rarely know the judges and many lawyers don’t really know the appellate judges because there is little opportunity to be in those courts. A big difference is when one argues an appeal now, often times there’s like a disconnect. There are memorandum opinions. Federal appellate courts rarely give one argument. Oftentimes there is a disconnect between briefs and what’s said at argument and what the memorandum opinion actually states. That was not the way it used to be. In the ’60s, ’70s, ’80s, and ’90s, there were every few memorandum opinions and almost every decision was done by an opinion. There was almost always argument given in the U.S. Court of Appeals for the Third Circuit. Now, one has a better chance of winning the lottery sometimes than getting an argument in the Third Circuit.
Fifty years ago, there were very few lawyers who were really wealthy. One made a comfortable living, but the practice of law was really a service business and now a way to make millions of dollars. Forty or 50 years ago, if one wanted to make money, they went into business. If they wanted to serve people and enjoy the values of the legal profession, they went into the practice of law. Those lines have now blurred.
But, everything was not perfect about 40 or 50 years ago. There obviously were drawbacks. For instance, 40 or 50 years ago, woman lawyers were grossly under-represented and often badly treated. Minority lawyers were almost non-existent or pushed to the fringe of a case. The diversity of the legal profession is one of its great assets and that is something lawyers 40 or 50 years ago really missed.
Major differences between now and 40 or 50 years ago are a lack of opportunity to be in a personal relationship that was so valuable, lack of time, constant high overhead, and constant communications which never cease. Forty or 50 years ago, Friday afternoon, if one wasn’t on trial, was really a nice time. Phone call communications by Friday afternoon were far and few between and many law offices closed down and lawyers left early.
In essence, the soul of the legal profession has been eroded with constant demands and constant work and constant communication. Under those circumstances, it’s often hard to find nobility in the legal profession and it’s often hard to maintain the professionalism that’s set the legal profession apart from all other occupations.
Inform your client about any potential conflicts.
Do I have to tell a new client that I previously represented a former client on the same or similar issue?
The answer, to some extent, lies in the review of Pennsylvania Rules of Professional Conduct 1.9(a). That rule is a conflict of interest rule involving duties to former and current clients. In essence, under Rule 1.9, a lawyer who has formerly represented a client in a matter shall not represent another person in the same of substantially related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client gives informed consent. There is no statement requirement of consent by the current client or a requirement even informing the current client of the prior representation.
That seems to be almost a major mission in the rule. It seems one would think that there would be a duty to tell a current client about prior representation of a former client on a similar issue, particularly if the lawyer took a different position.
Pennsylvania Rules of Professional Conduct 1.9(a) has no requirement for one’s present or current client to agree or consent to representation. It might be adverse to the interest of a former client of the lawyer.
Despite the absence in Rule 1.9 about telling a current client, one could argue that Rule 1.4, the communication rule, would require telling the current client about representation of the former client. Under Rule 1.4(a)(2) and (3), the lawyer is to reasonably consult with the client and the lawyer has to keep the client reasonably informed about the status of the matter. Keeping the client reasonably informed about the status of the matter might also imply that the lawyer has an obligation to tell the current client about the representation of a former client or an adverse issue to the current representation.
Similarly, the General Conflict of Interest Rule 1.7(a)(2) might be applicable in this type of analysis. Rule 1.7(a)(2), talking about concurrent conflict of interest notes: “If there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, the former client or a third person, or by a personal interest of the lawyer.”
One could argue that general Conflict of Interest Rule (Rule 1.7) requires a lawyer to tell the current client about the past representation in terms of the lawyer’s conflicting position on a similar issue in the past.
The better practice, even though not directly required by Rule 1.9(a) is to inform a current client about any potential past conflicts on the issue or with a former client and obtain their consent. Obviously, one doesn’t breach any attorney-client privilege, but informing the current client is really the right thing to do and perhaps is required by Rule 1.4 for the client to be constantly informed about all major aspects of a case. Therefore, in these old and new matters involving Rule 1.9, although it’s the former client who’s supposed to give the consent, the best practice is to also have the current client do the same.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.