Ellen C. Brotman | The Legal Intelligencer | December 29, 2015
We’ve had a tough year in Pennsylvania, with scandals hitting our justice system at its highest echelons in ways that shocked and dismayed us, and made traveling to other jurisdictions just a little bit painful. I’ve given some thought to lessons learned and come up with a list of resolutions that include both the philosophical and the practical. So here’s this year’s advice, hitting issues large and small, related to our profession, our work and our personal lives.
Before we start with Ellens list, we want to insert one other resolution for you: Don’t Procrastinate. Have you put off getting your MCLE credits until the last minute? Are you forced to sit through a class just to get the credit that is a waste of your time and not really applicable to your practice? Here is your solution: Construction Defect & Dispute Conferences are held all across the country and can be a great way to improve your practice and get those CLE credits you have to have!
1. Of all the risks we take every day, the riskiest thing we do by far is hitting the send button. Email is not a private conversation; we are always one forwarder away from exposure. No matter what you’re sending, resolve to review it carefully and make sure of at least two things: you’re sending what you want to send and that it’s going to the correct addressee.
2. Be clear in your communications and be sensitive to the experiences of other people. This isn’t about “political correctness,” this is about practicing law in a diverse world in which we resolve to treat each person with respect, which is different from tolerance.
3. Nobody wakes up in the morning and says, today I’m going to be a ____ (fill in the blank: racist, sexist, homophobe, elitist). But this is the year we must resolve to confront our own biases and prejudices and work to consistently reject them. The news this year has sounded a constant theme of the ways in which racist, sexist and class biases have harmed our society and our legal system. These harms are real and concrete, including an alarming pay equity gap for women and a civil forfeiture system that exploits the poor. As lawyers, we can be leaders on these issues: we have education, power and organization, and the will to use them for the greater good.
4. As part of this fight against bias, resolve to support the American Bar Association’s Proposed Amendment to Model Rule 8.4: The current working draft would make it a violation of the rule to “knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in conduct related to the practice of law] or [in the practice of law].”
Over 20 jurisdictions already have some form of this rule: Pennsylvania does not. Many jurisdictions, including Pennsylvania, have adopted 8.4(d), which prohibits conduct “prejudicial to the administration of justice”; some have also adopted the code’s Comment 3 to 8.4(d), which states:
“A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.”
Pennsylvania has not adopted this comment.
5. While we’re discussing the rules, resolve to take some time this year to skim the Rules of Professional Conduct—there’s a ton of good advice in there and some surprising changes that have occurred over the past years. For instance, Rule 1.15 has a whole new set of accounting and bookkeeping requirements that are specific and enforceable. I suspect that the Office of Disciplinary Counsel lobbied hard for these changes and is anxious to put them to use. Don’t be the example they’re looking to make. Also, Rule 1.1, on competence, now includes a comment that requires a lawyer to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The takeaway here: resolve to keep your clients’ digital data safe.
6. On the topic of keeping up with the latest thing, resolve to practice mindfulness at work. There have been a lot of articles written about this lately and it’s definitely on my list of resolutions. Why mindfulness? The pressure of the 24/7 work day is draining us of our ability to pay attention to what’s going on around us and inside us, at the cost of our thoughtfulness and creativity. Take a deep breath, focus your attention, and reclaim your imagination—that’s the best part about practicing law.
7. Set three goals for your practice: whatever those goals are (e.g., bring in more business, learn a new practice area, find rewarding pro bono cases), three is the magic number. (Trial lawyers know the magic power of three in speaking: the good, the bad and the ugly; yours, mine and ours; the truth, the whole truth and nothing but the truth.) Then, whenever an opportunity presents itself, resolve to think about how it serves one, two or all of your three goals. If it doesn’t…