f/k/a archives . . . real opinions & real haiku

E&L Today’s editors, William Freivogel and Lucian Pera, appear to share one major trait with the “staff” here at ethicalEsq? —  deadline-motivation complex.  You may know DMC by its nasty former name, “procrastination” (the greatest work-savings device ever invented).   Of course, Lucian and William may merely be showing off their prior law review scheduling experience. 

Memo
To: Prof. Michael Froomkin, U. Miami Law School

From: Word Usage Panel

Re: Irony Subcommittee

Due to your obvious love and mastery of the English language — as evidenced daily at discourse.net and ICANNWatch, and more specifically, on September 28, 2003, in your posting ‘Irony Distinguished From Chutzpah’ — the ethicalEsq Word Usage Panel Section (WUPS, pronounced “whoops”) is pleased to offer you the Chairmanship of our Irony Subcommittee.

Admittedly, this is a big job for an already very busy law professor, pundit, and author, but it is an especially important job. As demonstrated daily on television newscasts, in articles from every medium (see, e.g., our recent Verbal Quibble entry), and in student essays and (sadly) legal memoranda across the land, the word “irony” is being chronically abused in our society, most frequently in its adverbial form, “ironically.” The indiscriminate discovery or attribution of irony where there is no incongruity is, to use the vernacular, dumbing down the English language, as well as the human thought process. As aptly noted in the American Heritage Dictionary:

The words ironic, irony, and ironically are sometimes used of events and circumstances that might better be described as simply “coincidental” or “improbable,” in that they suggest no particular lessons about human vanity or folly.

For further discussion of the use and misuse of the concept of irony, see the Guardian article Isn’t It Ironic? (June 28, 2003) (“‘Isn’t it ironic?’ You hear it all the time – and, most of the time, actually no, it isn’t. Hypocritical, cynical, lazy, coincidental, more likely.”) Also, see the Wikipedia entry on the topic (which includes discussion of the Alanis Morrissette song “Ironic”). If you’re not convinced of the depth and breadth of the problem, please peruse the Purpose page at Irony Central. Ironically, that site’s editor apparently believes you can achieve irony by merely stating the opposite of what you believe — even if you tell the reader that you are doing exactly that.
With your help, WUPS hopes to turn the tsunami of misuse that is drowning a once precious word into a gentle tide of precision and restraint. At the very least, we hope to rid legal weblogs, memoranda of law, and even court decisions of such verbal abuse.
Please join us in this noble enterprise.

P.S. Sadly, some people may not see the connection between legal ethics and irony. That’s a topic for another posting, or perhaps an entire weblog.

The Editor insists that the following intercepted e-mail to Scheherazade is a reminiscence, rather than an actual posting in violation of his self-imposed hiatus on blogging.  You can judge for yourself, but I think he’s fallen off the wagon on this first day of Fall.  s/Jack Cliente, designated alter ego.

Hello, Sherry,

I wanted to tell you how two short clips on last night’s news reminded me of my very early years in the law arena and how important just a small gesture or event can be in the life of a legal neophyte:

Why should that matter?  During the lunch break in the hearing, I went to the cafeteria in the State Capitol with the lawyer on the other side (the head of the largest firm in town, who was representing the utility company).  When we walked in, a man sitting at a table across the room made a big fuss, calling the utility’s lawyer over to him, and in a loud, mocking voice, asked him “Who’s the foreigner with you?”   You see, despite my suit and tie, with my goatee, southern Italian features, and fairly large “Sicilian Afro,” I didn’t look like a lawyer was supposed to look.  I felt especially humiliated and angry, when I was told that the taunter was the Attorney General of the State.  That feeling that I didn’t belong in “the club,” despite my elite law school stayed with me a long time.  It made me sensitive to, and committed to help avoid and prevent, stereotypes of all types.

As a direct result of this pressure, the PUC hired a law professor from the State’s only law school to represent it on the next appeal from a rate determination.   Because so many issues were first impression (given the new regulatory scheme), there were several dozen issues raised by the utility company, and I believe the PUC opinion was over 100 pages long (I had written the first draft).  The in-state professor submitted an appellate brief that was literally less than two full pages, with more than half of the first page being the caption, and the introductory paragraphs detailing the dates in the rate-hike process.   There was one sentence of legal argument, which I can only paraphrase all these years later:  “All actions of the Commission were fair and reasonable and supported by the facts and law.”   Needless to say, the PUC decided to bring back its D.C. lawyers for the next brief.  But, our firm’s job was to help train the local staff, which was able to take over shortly thereafter.

Call me resticalEsq or even lazyoldEsq, but I’m heading for any rocking chair, hammock, futon, or sofa I can readily find, for a couple of weeks or r’n’r.  (Sigh: Not too long ago, that would have meant rock’n’roll.)

I’ll be stopping by our cyber cafe to “listen” to the discussion on Lawyer Snobbery.  But, mostly, its mystery novels, personal correspondence, riverside strolls, and haiku appreciation that should be filling my non-napping moments.

Last month, we wondered whether ethics classes made lawyers less ethical.  Things might actually improve in the legal jungle while ethicalEsq? takes a break.   If you need a shot of Giacalone while I’m gone, please feel free to browse and linger.  However, if you break it, you bought it.   

Both her story and [Alex Wellen’s story in his book Barman] are worth reading, and their observations about the practice of law should not be something that only young lawyers are interested in.

David Giacalone: 

[T]he best way to deal with snobbery is to ignore it. Unless your goal is to achieve maximum prestige, power and/or income, the fact that there’s a lot of snobbery in the profession should invoke bemusement and not frustration. Let them play their little ego games. Be grateful that you don’t have to see these people everyday and work with them — with everyone having to keep up the facade of superiority, and visiting their shrinks weekly.

Scheherazade:

David, the point I’m trying to make is that our profession, through a pervasive worship of credentials, makes it very hard to explore honestly (or even to consider) careers away from BIGLAW. People tell us that’s where the “interesting work” is and imply, explicitly or implicitly, that “ordinary” legal work for small businesses or consumers is somehow beneath us if we have brains and decent legal writing skills. So asking young lawyers to make other choices is asking us to choose a path that has been deemed intellectually less worthwhile by most of those we look up to.

Another Dave:

But if you base your decisions on “what people tell you,” then you’re ingoring the most important voice–your own. Sure, there are going to be snobs in law firms. But there are snobs everywhere–in business, in charities–it pervades our culture. You just have to blissfully ignore those people. You’ll be much happier when you do.

Do work that is fulfilling to you, the rest be damned.

David Giacalone response:

Yes, Dave has it exactly right. It’s too bad that most people graduate from law school before they’re mature (experienced? confident?) enough to listen to that voice, or to even have a clear voice inside letting them know who they really are. Instead, they only hear a peer group and a society that puts prestige, power and profit above personal fulfillment — or, actually thinks that those 3Ps will give you personal fulfillment.

That’s all the better reason to live frugally while experimenting with big-time law practice — then, you won’t have those golden manacles when you discover who you really want to be.

I thought the public policy purpose of antitrust law was to protect the little guy against the monopolist giant.  Your analysis seems to protect the monopolist giant against the little guy.  This just feels all wrong, morally, and in terms of common sense to me. 

• Just today, as described in this press release, the Federal Trade Commission issued an antitrust complaint against some “little guys” selling professional services — independent competing physicians in Texas — who were acting together to get better terms from some “big guys” who sought to buy their services — insurers, HMO’s, etc.  (In re North Texas Specialty Physicians, Dkt. No. 9312). 

(1)   The State’s schedule of Medicaid fees are considered too low by physicians across State X.   Dwindling numbers of doctors are willing to accept Medicaid patients.  Due to growing financial distress, the State legislature turns down lobbying efforts by the State Medical Society for increased fees.   At their annual meeting, members of the Medical Society vote to refuse to take Medicaid patients if the State has not approved their higher fee schedule within 30 days.  

 

(2)  Sadsong Prison is by far the largest purchaser of foodstuffs in an isolated, rural New York county.   Due to belt tightening (caused by the public’s lack of interest in the conditions faced by prisoners), the Prison announces that it will pay no more than $2.00 per gallon for milk.   The county’s dairy farmers are incensed, saying they can get $3 or more per gallon elsewhere, but many farmers continue to sell to the Prison.   The Prison Administrator refuses to budge on the price, despite constant complaints by the farmers, who say they must sell locally and might go out of business.   One morning, a majority of dairy farmers in the region meet and agree that they will no longer sell to the Prison for less than $3.   They issue a statement condemning both the Prison and any farmer who crosses their picket line.

 

(3)   Sadsong Prison has also announced that, in order to achieve efficiencies and save money, it will hire staff physicians for primary care of the prisoners, but will continue to purchase specialty medical care on a per case, fee-for-service basis.   Angry general practitioners meet with their colleagues at the 19th Hole club house and persuade the specialists to refuse to deal with the Prison unless it returns to using fee-for-service private practitioners for all of its medical needs.   The specialists go along out of professional courtesy, and also because they fear a loss of referrals from the angry primary care doctors.

• Update (July 31, 2004):     Mass. High Court says Lawyer Shortage Violates Defendants’ Rights — some could be released.  LaVallee v. Hampden Justices (see AP/Standard-Times).  And see the related discussion at TalkLeft.

Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase “with all due respect,” the odds that a respectful remark will follow decrease rapidly toward zero.

“[F]or a judge to penalize innocent clients for their attorneys’ alleged misconduct…well, with all due respect (see George Wallace’s remarks on that phrase) and in the judge’s own words, that’s conduct that is truly “degrading to the institution of the court.”  

Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase “with all due respect,” the odds that a respectful remark will follow decrease rapidly toward zero.

“[F]or a judge to penalize innocent clients for their attorneys’ alleged misconduct…well, with all due respect (see George Wallace’s remarks on that phrase) and in the judge’s own words, that’s conduct that is truly “degrading to the institution of the court.”  

“You may be shocked to find how little you’ll net from the proceeds of your lawsuit, how little experience your lawyer has, or how hard it is to proceed against him later if you think he has wronged you.”

• 
  
  I’m no apologist for the legal profession (as I think you well know), but some of the Smart Money complaints are actually cheapshots — e.g., the ABA can and does promulgate model rules and ethical opinions, but it has no direct authority over lawyer conduct.  It’s a bit unfair, therefore, to suggest that the Association is somehow ducking an issue by leaving it up to the individual states to ban or allow a practice — especially, on an issue, like sex with clients, in which the ABA has in fact called for a total ban (which we oppose).   Also, how significant is the fact that “Nearly 20 percent of attorneys surveyed nationwide by the University of Memphis in 1993 admitted they or a lawyer they knew had had an affair with a client”?   Nevertheless, the article’s overall focus is correct: clients and prospective clients deserve a lot more information, should be asking more questions, and choosing lawyers who willingly share all important information.  See this article for some examples. 

they call it

a driving rain, but

        we better not drive

                 [haikuEsq]

 

fickle Isabel,

don’t hurt my

old, new, cyber friends

           [haikuEsq]

 

 

batteries, beans, lightning flash

. . . did the children see

       the fear in my eyes?

            [haikuEsq]

 

        A fractured rainbow

Is straining under thunderbolt clouds with

        Cathedral quiet.

                    [James Kirkup, in Haiku: The Poetry of Zen, ed. Manuela Dunn]