Tuesday, July 07, 2009

How Do You Know What Dishonest Is, You're Not a Lawyer!   [Andy McCarthy]

When lawyers bloviate about the "rule of law," the first thing you should always think is "rule of lawyers." Their object is to convince you that the world is so complex, so overflowing with statutes, codes, rules, regulations, etc., that you mere mortals are simply not equipped with enough intelligence and common sense to know how to get up in the morning without consulting an attorney.

A typical instance is the New York Times report yesterday on the strange matter of Sonia Sotomayor's sideline job from 1983-86, when she was a young district attorney and, later, law firm associate.  It turns out she ran her own private law office, which she called "Sotomayor & Associates" even though there were no associates — there was just Sotomayor.

This seems odd.  When you're a prosecutor, your client is the public and you're really not supposed to be taking on private clients who may have conflicts-of-interest with the public. Exceptions are made for providing finite legal help for family or friends (e.g., helping your mother draft a will) — after all, those things don't usually entail much compensation and the prosecutor is conflicted with respect to family and friends anyway (i.e., if mom gets indicted, you don't get the case — they find another prosecutor to take it). 

Furthermore, law firms frown on their associates running on-the-side legal practices.  Leaving aside whether income the lawyer earns should be going through the firm, good law firms set up systems to check for conflicts-of-interest: whenever new business comes in the door, the firm does a conflicts check to make sure the prospective client isn't in an adversarial posture as to a current client to whom the firm already owes professional fealty.

I have no idea whether Sotomayor should have had her sideline practice at all, whether she got all the approvals she should have gotten from the DA, whether she ran her sideline clients through her firm to ensure against conflicts-of-interest, etc.  The information laid out in the Times report seems awfully sketchy: e.g., Judge Sotomayor allegedly couldn't remember the names of the clients from that three-year period, nor even give a ballpark estimate of how many clients there were — certainly odd if she'd been keeping her primary employers properly apprised.  The Obama White House apparently got her to urp up the names of three clients, one of whom was a friend she's said to have helped with a divorce, "although," the Times gingerly adds, "the filing came a few years after the judge said she had stopped her outside work."

Presumably, all of this and what, if anything relevant, it says about Judge Sotomayor's judgment will be explored during the confirmation hearings. What caught my eye about the story was Sotomayor's decision to call the sideline practice "Sotomayor & Associates," as well as the administration's and the Times' handling of that aspect of things. The paper consulted legal ethicists on the question whether this was a lapse given that Sotomayor was operating this sideline strictly on her own. The White House, meanwhile, is peddling a "written analysis" by one Hal R. Lieberman, described as "a former disciplinary committee chief counsel in New York," who holds — with what we're to take as close-the-books authority — that:

Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications[.] ... In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.

Now, if this makes no sense or no difference to you, you should not be cowed into assuming you're a rube because, after all, a former disciplinary committee chief counsel in New York has spoken.  If you don't have associates, you should not call your business "Me & Associates."  It doesn't matter if it's actionable or worthy of a stern letter from Mr. Lieberman's former committee — the lawyers who oversee the lawyers.  It's misleading.  That's a good enough reason not to do it.  It's also stupid — you look like an idiot if you get caught pretending your business is bigger than it actually is. Regardless of what the judge, the Times, and the administration think, does the average person really need a lawyer to figure that out?  And does the fact that some lawyer doesn't see a problem mean a normal person wouldn't?

07/07 06:13 PMShare