Wednesday, October 20, 2004

ETHICS - 101

By Stockton

Yes, we have them, and we keep them in a secret, undisclosed location. Even so, they are sometimes violated.

An attorney's principle duty is to zealously advocate for his paycheck. If the client doesn't pay on time, the lawyer may be forced to fire the office manager, who typically makes sure the attorney is paid on time. It's a viscious cycle.

Secondly, the lawyer should always timely communicate to his client that nothing is going on with the client's case. Never, ever be late in giving a status report to the client. This alone keeps most of them happy. In New York, the number one complaint lodged against attorneys with the Office of Professional Conduct is, "He/She never returns my phone calls." The second most common complaint is that "the Office of Professional Conduct never returns my phone calls."

There are some grey areas in legal ethics. More than lay people may imagine. Case in point:

We grant petitioner's motion to confirm a Referee's report
which found respondent guilty of professional misconduct in
violation of the attorney disciplinary rules (see 22 NYCRR part
1200). During the course of representing his client in custody,
visitation and divorce proceedings in Columbia County Family
Court and then in Supreme Court, respondent left vulgar voice
mail messages on the answering machine of the Law Guardian
representing his client's children (see 22 NYCRR 1200.3 [a] [5],

[7]; 1200.33), communicated with his client's spouse directly by
telephone despite being advised by the spouse's attorney that all
communications should be directed to that attorney (see 22 NYCRR
1200.35 [a]), and entered into a sexual relationship with his
client during the course of his representation of her, failing to
discontinue employment after his professional judgment was
affected by his own personal interest (see 22 NYCRR 1200.20 [a];
1200.29-a [b] [3]).

Although it's a close call, I'd say the attorney in question made some errors. First, the vulgar phone messages; never, ever leave vulgar phone message on a law guardian's answering machine. Always hire someone else to do it. That was his first mistake.

Also, never make direct contact with the opposing party. That is always improper and rarely necessary. There are people in the world, very reputable people, who will provide this service to you. They're good and they get results.

As for sex with a client: such things happen. There are ways to deal with this issue that don't involve license revocation. First, you have a decision to make. You either have to refer the client to another lawyer for representation or refer the client to another lawyer for sex. This is a highly personal decision and will depend upon the client. If you do send the client to another attorney for sex, make sure you explain to the client, in detail, the reason for the referral. Also make sure the explanation is in writing.

If you cannot avoid sex with a client, never, ever bill the client for that time. In real-world legal practice, sex is like drafting a will; it's thrown in for free in order to keep the client happy.

Never mix your money with the client's money. Keep those funds entirely separate. If the thought even crosses your mind, look at the law school diploma on the wall of your office. If you mix money, that diploma will be worthless. Nothing disgusts me more than when I hear about a lawyer abusing the trust of his or her client. There's no place for that in the profession. If that's your style, run for public office.

Law School Ethics

Hopefully, your ethical training started well before law school. If a parent, or both parents, happen to be attorneys, you'll begin with a disadvantage. You can overcome that disadvantage by making friends with students whose parents are truckdrivers and waitresses. Your ethical training must begin no later than mid-way through your second semester. After that, it'll be too late and you'll be well on your way to a succesful career.

Tuesday, October 12, 2004


Property can be real or personal. Real property is land, earth, dirt and improvements, such as clean dirt - hence the term Real Estate. Personal property consists of things like underwear, diaries, feminine hygiene products, secret vices and the contents of the top drawer of every night stand in America - hence the phrase, "Hey, get out of there! That's personal!"

Property law is not about a person's relationship with land or items (that's really no one's business). It's about keeping land or items out of other people's hands and in yours - it is about a person's relationship with property relative to another person. Thus, the many property law cases involving leather straps and ball-gags.

In Property, you'll also learn very interesting things about people. For example, people like to name their real estate. And they don't name real estate normal names like "Reginald" or "Vespasian;" they name it, almost without exception, Blackacre. This makes for very confusing deeds and titles, but very busy lawyers. (This is not entirely true; some people name their property Whiteacre.)

People also never simply sell their estates or leave them to their children. Oh, no. They can't do that. Instead, they leave life estates to their spouse with remainders to various children.....For instance, "Whiteacre to my surviving spouse if she hasn't been murdered then to my second wife with a remainder to all the children from my third marriage, but only when they reach the age of 21 and have a job."

There are some pretty basic concepts in property law every student and lawyer should understand:

Adverse possession

Adverse possession occurs when the devil takes possession of a human being contrary to that human being's will. "Adverse Possession," then, should be distinguished from another well-known property concept, the "Faustian Bargain," which also involves Satan (which, if unscrambled, spells "Santa" - just think about how this discovery affected an eight-year old Tweed), but which is more properly associated with contract law.

Adverse possession also allows a human being to take title to real estate they don't own by virtue of the real owner's laziness. (Oddly enough, the devil rarely attempts adverse possession of real estate due to the negative tax consequences.) This can result in someone going to visit his or her property and discovering that the Clampett clan has settled down in a tar paper shack village smack-dab in the middle of his or her dirt (effecting a dis-improvement, by making the dirt even dirtier than it was). It can also arise after your neighbor puts a swimming pool in your backyard.

Remember, long ago, public policy dictated that land be "productive". The state wanted people to better their land and produce something. Thus, if you ignored your land and someone actually used it, the rule in Use It v. Lose It, 18 US 666 (1805) kicked in. This public policy is now embedded in much case law even though the government owns huge areas of unproductive land. See, Do as I Say v. Not As I Do, 122 US 812, 822 (1923).

Possession is Nine Points of the Law

Everyone's heard of this. But to be perfectly honest, we haven't a clue as to its actual meaning. Law is not generally divided into "points," and if it were; who's to say that nine of them is all that good? Nonetheless, the notion persists that if you possess something - a raging case of hemorrhoids, say - that you have more right to it than others. Sometimes this is a good thing - if, for example, you possess lots of gold. Sometimes it's not so good - if you have crabs. Oddly enough, however, if you possess someone else's property, he or she can usually take it back - making a mockery of the whole system.

Holders in Due Course

A holder in due course is what every kid in the suburbs wants to grow up to be. Indeed, I can recall many occasions when my father pulled me aside to say: "Son, what you want to be is a holder in due course." "Holders in due course" are beings that exist in the mystical world of the law of "negotiable instruments." As you might imagine, being a "holder in due course" of a "negotiable instrument" is the cat's pajamas.

And now, through the wonders of law school, we can tell you a very simple way to attain such a status: get someone to write you a check.

The Rule in Shelley's Case

This is extremely important, and you should understand it completely. Really, this is crucial. In its way, it's the whole ball game.

Eminent Domain

"Eminent Domain" is a concept that runs counter to the concept that a Man's Home is His Castle. The concept of Eminent Domain actually teaches us that it is not his castle, but his wife's. In addition, the principle of Eminent Domain teaches us that a man's home is not even his wife's castle either - it's actually their neighbor's, for certain purposes - and not for the fun, Commandment violating kind of purposes either. Eminent Domain entitles the government to limit what you can do with your dirt. For example, in most residential neighborhoods, you cannot build an oil refinery in your back yard - I know, I've tried. Similarly, in some neighborhoods, you're not allowed to have clothes lines, colored mailboxes, pets or last names ending in vowels.

Actually, Eminent Domain allows the government to take your dirt for public purposes - like expanding a highway or protecting frogs. Those other things are all related to what you can do with your dirt and not what the government can do with your dirt. And the rules can be imposed by the government, negative covenants that run with the land, special tax municipalities or Elvis' dog. Then there's favoritism. If you're confused, now you know why I don't practice property law.

The Dreaded Rule Against Perpetuities

Easily the most feared rule in Property, the Dreaded Rule Against Perpetuities is actually a simple concept:

"No interest is good unless it must vest, if at all, not later than twenty-one years after a life in being can figure out what the Dreaded Rule Against Perpetuities means."*

* Hint: The Dreaded Rule Against Perpetuities has something to do with an irrational fear of grandmothers.

Monday, October 04, 2004

Law Firm Life: Part 1, BigLaw

So, you survived law school and anxiously await your bar exam results. In the meantime, you begin your career at a huge law firm with an equally huge salary.
About the same time you receive your bar exam results (don't worry, you passed), you suddenly realize you don't want to be a lawyer. What do you do?

First, do not tell anyone you passed. This will give you options, and make your exit strategy, should you choose such a path, easier: "Gee, Mom, I didn't pass. Guess I'll have to take that job at Target." However, bar results tend to arrive right about the same time that your student loan deferment ends. Therefore. . .

Second, take a stiff drink and get back to the office.

Lawyer life-styles vary widely. Some, like Peter Angelos, get to own the Baltimore Orioles. Others, like Tweed, get to work their butts off for a pretty nice living (i.e. can afford to go see an Orioles game if time would allow and if Angelos weren't such a big jerk for stopping baseball's return to DC for so long, the bum!). It is important for lawyer-wannabes to understand what they are signing up for. Part 1 of this article examines the most dramatic and thrilling (in their eyes) lawyer life-style - life at BigLaw.

Joining BigLaw is a Faustian bargain except that you don't actually get anything out of it. Some say it's because even young lawyers give up so little in the bargain. Others figure that lawyers discover the hidden loophole. Regardless, you actually do get something - somewhat of a pyrhic something: you get lots of money and the respect of actuarials all across the country, but not of super models or starlets. Also, you'll discover that prior to being a lawyer you had lots of free time - even in law school.

The money will come in handy. You'll need it because (a) you're living in an expensive area; and (b) you will be paying alimony (if you're a female, you'll have to pay those vet bills for your numerous cats).

But I'm getting ahead of myself. Let's first note the great variety of BigLaw:

Tier 1. Really BigLaw (e.g. Skadden, Arps; Cravath Swaine & Moore; Latham & Watkins; Sullivan and Cromwell; Emerson, Lake & Palmer; Crosby, Stills & Nash): Forget about a life; forget about seeing the outside world (although some larger firms now allow conjugal visits and many have designed offices with windows); just count your money, if you have the time. These firms know how to make money, legally, if not ethically - and it involves you billing lots of hours. Lots of hours* (2,200, 2,400, 13,200 per year). If you're really smart, really lucky or know lots of rich people, or really lucky and really smart, or really rich and really lucky or know lots of rich people and really smart, you can make it at one of these places, make tons of money, divorce your spouse, marry a trophy spouse and fear retirement. It's the bomb.

Never forget however, that you're still going to die. Therefore, make certain to spend as much time in the office as possible. Also, I hear God is impressed with BMWs.

Now for some perspective. The hours sound daunting. In the office at first light, home by 9:00P.M., no lunch. But there is a reason for all this hard work. BigLaw lawyers (BLL's) work for Big, demanding clients (BDC's).** These clients want top-notch lawyers and are willing to spare no expense. Also, the senior partners receive tax bills on their second and third homes. These bills come annually and can cause significant hardship. It is up to you to make their lives just a bit easier. Your Benefactor's summer home on Nantucket is not without its downside.

Tier 2. BigLaw (e.g. Really BigLaw Wannabes): See above, but reduce salary from between 5% and 20%.

With such great variety, it is often difficult for a young lawyer to choose the right BigLaw. That's why I've designed this easy to use tool to assist young lawyers in choosing the right BigLaw for them.

Tweed's Handy-Dandy Guide to Choosing The Right BigLaw For You (a/k/a Tweed's Tool)

1. List Really BigLaw in alphabetical order.

2. List BigLaw in alphabetical order.

3. Have secretary type list - oops - you don't have a secretary yet. Have a drink instead.

4. Cross out the name of any firm that contains an Italian, Czech, Hispanic or Polish surname.

5. List cities you are willing to not see while you work.

6. List practice areas that don't make you physically ill (note: if you find that the prospect of specializing in 34' Act compliance; utility easements or tax-free reorganizations does not make you physically ill, you'll go far).

7. Have another drink, what the hell - you're about to be rich!

8. Match Really BigLaw and BigLaw to cities and practice area lists - be sure to cut along the dotted lines.

8 .Examine compensation structure of each Really BigLaw and BigLaw.

9. Have still another drink, you need the practice.

10. Examine partnership track information on each Really BigLaw and BigLaw.

11. Go with the one that actually hires you. If more than one makes an offer, go with the one with the Anglo-Saxon name on the letterhead. If more than one, you stink, I hate you and so do your classmates, despite how they congratulate you.

Being a part of BigLaw

Joining BigLaw is not the same as becoming a part of BigLaw. To be a part of BigLaw and not just a white-collar galley slave, you'll have to become a partner. To reach this vaunted position, you'll need to bill a ton of time and bring in some business. You will also need an initial preceding your first name and a Roman Numeral following your surname (ie. H. James Southworth III). If you possess the talent and bring in enough business, the firm might just pay for the initial and the Roman Numeral.

It is also advisable to develop a quirk if you become expert in some specialized area of the law, such as, for example, avoiding excess benefit transaction characterization when adopting deferred compensation arrangements for hospital adminstrators. Start referring to people as "old boy," always wear a flower in your lapel, grow your hair really long or go with the tried and trusted method of just being rude to everybody - you'll get lots of respect.


Despite the above, life at BigLaw does have its downside. BigLaw caters to Big Business. Your morals may be on the line. You clients may manufacture cigarettes, semi-automatic weapons or TV sitcoms. The morality of what you do may weigh on you. At times, you'll consider doing something more respected, like dope peddling or producing snuff porn. Don't worry. These feelings are common among young men and women at BigLaw. Time and experience will cause thick callouses to form on your heart and you'll look back at your doubts, pause, and get back to work.

*Law firm time sheets fascinate astrophysicists. Top Gun lawyers have sometimes billed 17 or 18 hours a day for several months in a row. It is not unheard of for an ethically flexible attorney to bill 26 or even 27 hours a day, prompting scientists to speculate that the earth spins slower for attorneys .

** Hence, the well known legal formula BDC + BLL=$$$