The ethics of being awesome

Preface: I was asked this week to propose an hour-long presentation about career development that would also qualify for CLE ethics credit. My proposal wasn’t accepted but, having learned never to let content go to waste, I’ve fleshed out the proposal into this blog post.

Most of us chose law school because we wanted to do something meaningful in life. Because we wanted to “be awesome.” So many of the most important, most interesting people in history and society were or are lawyers: 25 of 44 presidents, hundreds of political and social leaders, business titans, Supreme Court justices (of course), and many more.

Yet, it’s really hard to do something truly remarkable.

Lawyers, issue-spotters and risk-averters that they are, often erect obstacles to stop themselves or other lawyers from being awesome. A frequent obstacle is the rules of professional conduct. There are lots of ways that lawyers can convince themselves or others that while a given idea might be awesome, it’s probably unethical. This approach is totally wrongheaded. While it’s true that lawyers need to keep their ethical duties in mind no matter what they’re doing, here’s my quick take on some of the rules lawyers falsely believe keep them from being awesome:

• Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.[1]  Do note that making cross-referrals between legal and non-legal businesses definitely complicates this landscape. In that case, the lawyer must do things like disclose their interest in the non-legal business, provide clients an opportunity for independent counsel as relates to interactions with the other business, and not practice law under the other business.
• What about commingling and trust accounting? It’s an accounting best practice to keep separate books for separate businesses, but if you have an awesome side hustle that’s not a law practice and don’t keep separate books remember that a lawyer’s duty to safeguard client funds may complicate your efforts. I won’t go into the detailed rules of trust accounting but co-mingling the funds from your side hustle with those from your law practice can create huge ethical issues as well as accounting headaches. Just do what your accountant says and have separate books for your legal practice and your separate side-hustle.
• “That’s fee splitting!” or “That’s the unauthorized practice of law!” Rules 5.4 and 5.5, colloquially known as the “fee-splitting” and unauthorized practice of law, or UPL, rules respectively, govern how you might work with others to do something awesome. These are seriously complicated rules and can have some gnarly consequences if you get them wrong. Applying these rules is made even more complicated by the incredibly broad and amorphous definition of the “practice of law.” [2] I’ve spilled and seen spilled gallons of digital ink on these topics. Personally, I think Josh King summed up best where 5.4 should go in this blog post but, in the meantime, you’ll have to do some local due diligence if you want to engage in something that potentially affects these two rules. [3]

But now to the good stuff. Sure, lawyers will raise reasons not to do something awesome but there are stronger much more compelling reasons to act and do something awesome. Lawyers are the designated stewards of the legal system. They’ve been given a monopoly on legal services in order to protect clients. In fact, client protection is the main reason reason that the rules of professional conduct exist. As I said toward the end of last week’s post, I believe that lawyers don’t just have an obligation to help clients achieve a positive legal outcome (or, worse, game the system for clients’ or their own benefit) but to proactively step up and try to fix complex, unnecessary, expensive, or inefficient systems in the law. While there aren’t specific rules related to this proactive obligation there is some language in the Washington State Oath of Attorney (language which I assume is fairly similar to that of oaths of attorney outside of Washington) that speaks to it:

• “I will maintain the respect due to the courts of justice and judicial officers.”

It’s hard to maintain respect for a legal system that serves only a small percentage of people and does so in a terribly inefficient manner. In order to maintain respect for the courts and judicial officers – and, perhaps most importantly in order to insure that those who use the system maintain respect for it – those who are most familiar with it, lawyers, have a duty to improve it.

• “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay unjustly the cause of any person.”

As legal professionals compete for the legal work of those who can pay them and assist those clients over and over again when will we reach the point of “reject[ing] . . . the cause of the defenseless and oppressed?” When so many legal processes take so long and are so costly, what’s the limit of delay that is just?

More than splitting fees with non-lawyers or commingling funds or even letting those who aren’t properly licensed deliver legal services in some capacities, I’m concerned about the state and health of our legal system and our obligation as legal professionals to give a damn and do something about it. If we don’t increase meaningful access across the board the rules to which so many lawyers cling, those which they believe define the noble legal profession, will be increasingly irrelevant in a world in which clients don’t trust or don’t care about the legal system and therefore don’t use it at all.

Friends, let’s make sure to abide by our professional obligations but let’s not use them as obstacles or excuses to keep us from being awesome. There are so many problems, big and little, that need more than just “another lawyer.”

[1] This article does a decent job of parsing the issue of when the lawyer is in representation of a client (and subject to the RPCs) and when they’re not representing a client and therefore not subject to the RPCs.

[2] See the DOJ’s and FTC’s comments to this effect here.

[3] As primers, I’d look at how Mark Cohen structured Clearspire and how Atrium LTS is doing their work today. Also, if you ever have a chance to buy Chas Rampenthal a beer, he’ll tell you more than you want or need to know about UPL and you’ll get more than your money’s worth because he’s a great guy.