How To Destroy Good Lawyering

“I didn’t see this coming,” he said, noting that Gallagher, like him, was in his 70s.

Death is unnerving that way. We know that it comes for us all, but we avoid facing it. Yes, all men are mortal, but what has that to do with us? We, the living, watch others come and go; is not the watching eye eternal?

“Yeah, it makes me think,” I responded, thinking of the hollow spot in the fabric of things that was once occupied by Gallagher’s genius. “Life is short. Too short. I find it harder to return to the practice of law after each vacation.”

“Why is that?” the septuagenarian said. “Are you burned out?’

“No,” I replied. “I enjoy many things. Law is only one of them.”

And there it was, what so-called “life coaches” call the work-life balance, as in, how can you balance the pressures of a demanding professional life with the contemporary imperative to “have a life”?

I stumbled into court Monday morning, a bundle of unanswered questions.

Truth be told, the representation of a client is all-consuming. A stranger calls. She’s in trouble. Will you help her? Of course, for a fee. So the negotiations begin, the ever-present, never really discussed in public, dance wherein the lawyer offers hope in exchange for cold, hard cash. A new case is a new world, a new set of eyes through which to see.

No writer of legal fiction captures the reality of a lawyer’s life, at least the life of a lawyer in the private sector, we fee-hustling fools. Most folks who write about the law and lawyers pretend that everyone is a public defender, living in a cocoon that makes the pursuit of one’s daily bread a moot pursuit, a thing to be taken for granted.

Private counsel, retained counsel, know a thing or two about original sin and its consequences. It is by the sweat of our brows that we live.

Michael Connelly, author of “The Lincoln Lawyer,” comes close to capturing the reality of lawyering. Mickey Haller, his protagonist, worries incessantly about paying the bills. His clients make promises they cannot fulfill. He must balance the lofty aspirations of the law against the necessity of making sure his staff gets paid.

But Mickey lives in Los Angeles, where crazy, deus ex machina money rains down from the heavens, saving the day, like a princess’ kiss on the cheek of a frog.

Human need is not compressed into the tidy columns of the profit and loss. I’ve yet to have the client who came to me on a budget and said: “Worry about half my life; I’ll take the rest.” No, the law of lawyering requires that I shoulder all of my client’s burdens. She asks of me all that I have to offer. Discount lawyering is no lawyering at all.

So I behold the new experiment by the Connecticut Judicial Branch permitting lawyers to file what are now called “limited appearances” in family law cases as little more than a sick joke.

Once a lawyer decides to represent a client in a pending case, the lawyer must notify the court and opposing parties by filing a piece of paper known as an appearance.

The filing of this document in court obliges the lawyer to represent the client. A lawyer cannot decide to stop representing the client except with the court’s permission. (Among the reasons a court may relieve a lawyer of the duty to continue to represent a client is non-payment of fees or if the client insists on a course of conduct the lawyer believes to be repugnant.) An appearance requires the lawyer to represent his client through the entire proceeding.

Effective this month, lawyers representing clients in family court can now file limited appearances. In other words, lawyer and client can agree that the lawyer’s role is limited to, let’s say, filing a particular request that the court issue an order, or, to choose another example, appearing at a particular hearing. The practice is known in legal circles as “unbundling.”

No conscientious lawyer will enter into such an agreement. It is the equivalent of asking a carpenter to drive half a nail, a cook to prepare half a recipe, a surgeon to start, but not finish, an operation.

Cases and controversies are endlessly complex. I get calls daily from folks who say, “I would like just five minutes of your time.” They then proceed to tell me their tale.

It takes more than five minutes just to figure out the scope and nature of their problem. Life situations are not simple. You can’t put blinders on your lawyer and expect him or her to see the complexities of your case.

A lawyer who agrees to represent a client in just a “part” of their case is a lawyer refusing to give respect to the full scope of the client’s interests. This same lawyer is also the next defendant who will face a legal malpractice claim for failing to contemplate the consequences of his slapdash advice.

I can understand why the state’s judges want limited appearances. The family courts are swamped with litigants who have run out of money, and now appear in court on their own behalf, armed with all the rage in the world, but no legal skill or sense. Some 80 percent of family cases end up in such an angry netherworld.

Unbundled legal services offer judges a chance to insulate themselves from untutored rage with the semblance of legal representation.

There’s little doubt in my mind that unqualified lawyers will flock to the family courts now, just as real estate lawyers flocked to the criminal courts after the collapse of the real estate market, offering discount rates to desperate clients to work cases the lawyers couldn’t handle. Next week, we’ll see $500 wonders filing garbage in the family courts.

Maybe more than a great lawyer passed away just recently; maybe good lawyering, too, is now a thing of the past.

Also listed under: Journal Register Columns


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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