Law Office of Bruce Godfrey

The following is some general information about “right to sue” letters from the Equal Employment Opportunity Commission and analogous state and local anti-discrimination agencies (known by statute and regulation as “fair employment practices agencies” or FEPA.)  None of this is legal advice; if you want legal advice, you should hire a lawyer.  I am not your lawyer; instead, print this out, take this post to your lawyer and ask her or him what errors it may contain and how you should proceed in YOUR case.  Do not rely on this article; doing so could KILL your case and you will have only yourself to blame.  Instead, again, contact an attorney, print this post out and ask your attorney in attorney-client consultation to point out how she views your case as different (if she does) from what is discussed below.

1)  A “right to sue” letter from the EEOC after the filing of charges within its jurisdiction, or from most (not all) state or local agencies that perform similar investigatory functions, starts a very short clock by which to file suit for most (not all) discrimination or retaliation claims in a court of proper jurisdiction.  As soon as you get the right to sue letter, you MUST start looking for an attorney if not before.  A better title for the “right to sue” letter might be “YOUR RIGHT TO SUE IS ABOUT TO **DIE**” letter, but the EEOC doesn’t really go in for drama.

2)  Under some conditions, you may be able to sue in more than one federal or state jurisdiction (i.e. you have a choice of “forum”) or more than one court within a given jurisdiction (usually referred to as “venue.”)  Consult your attorney about how this applies in your case.

3)  In some jurisdictions, you may have some claims that exist on different timetables from those of the right to sue letter.  Indeed, it is possible that a claim under some federal, state or local laws may expire long before you have a right to sue on other claims.    Proper analysis of differing legal theories and “clock management” are tasks for your attorney, which I am not.

4)  Not all claims of discrimination require a “right to sue” letter; some jurisdictions allow an immediate suit under local law under different theories and some federal statutes use a different timetable for filing suit.

5)  Sometimes, the issuance of a right to sue letter may give rise to negotiations on claims with an employer.  Handling the timeframe of the right to sue letter is part of good lawyering.  If you would like your attorney to commence negotiations with your former or current employer, you should first hire one.

6)  In many local/state cases and most federal cases – but NOT all – the right to sue letter expires 90 days after the employee receives it.  If you receive it late in the process (e.g. through a mail delay or other delay) you should absolutely not wait but should contact an attorney IMMEDIATELY to avoid the expiration of the deadline.

7)  A right to sue doesn’t constitute a “granting” of a right to sue by the EEOC or local agency so much as an “activation” of the right to sue after the exhaustion of the “administrative remedy.”  The EEOC cannot “stop” anyone from suing, but can issue a finding of reasonable/probable cause (“reasonable cause” is the preferred term but one also sees “probable cause” as an informal substitute) or a finding of no cause.  Even if there is a no cause finding, a worker may file suit on a no-cause right to sue letter though most attorneys will be (understandably) wary of taking on a case where the EEOC found no cause.

8)  For the love of Pete, don’t tarry until the last two weeks of the right to sue letter to contact an attorney.  In such cases, your attorney will inevitably be rushing and may be reluctant to take on the professional liability for the case.  If you have foolishly waited, call an attorney or two or ten today; the only thing more foolish than waiting is waiting even longer.  Beware: this isn’t college and you cannot turn your lawsuit in late as if it were a late term paper.  Timeliness is critical.

Did I mention that you might call an attorney to avoid blowing the deadline(s), and that I am not your attorney?  Good luck with your attorney (whoever she may be) and your case.

Original Letter

3 April 2012

National Organization for Marriage
Open Letter
By facsimile: (888) 894-3604

Re:             Request to Join Boycott List

Dear Madam or Sir:

I write your organization to request that the Law Office of Bruce Godfrey be placed on the boycott list for corporate and business advocates for the recognition of lawful civil same-sex marriage. I would be most grateful for recognition of my small law office as an opponent of your cause in Maryland as you have recognized companies such as Starbucks.  While Maryland attorney ethics rules place strict prohibitions on attorney solicitations of prospective clients for hire, no ethics rules prohibit an attorney from asking to join a boycott – as a target.

Bruce Godfrey has been a loud and notorious advocate of lawful civil same-sex marriage recognition in his home state of Maryland for many years.  His unapologetic advocacy of equal protection principles and of the equal rights amendment of the Maryland Declaration of Rights advocacy has cost him friendships and business relationships.  Godfrey is an inveterate opponent of your cause and a strong supporter of your most implacable legislative foes in the Maryland State House and General Assembly.  He earned your boycott through loud commentary on this issue as a straight ally of equal protection of the laws on Facebook alone, and will continue to advocate for equal protection of the laws in Maryland per his Maryland Attorney Oath.

It was said of the late actor Paul Newman that his proudest life achievement was being placed on the infamous “enemies short list” of President Nixon during the Watergate era.   If NOM requires a certain amount of achievement in opposition to your aims to merit a boycott, please receive this as a request for the clarification of your boycott criteria so that the Law Office of Bruce Godfrey may, through diligence and honest effort, merit that honor.  Please target Bruce Godfrey for boycott; he intends to earn it.

Very truly yours,

Bruce Godfrey, Attorney (MD/DC)
Attorney at Law

Long post.

In general, we Americans favor the doer over the critic.  Theodore Roosevelt lost his charm for me once I learned that he attacked American Revolution founding father Thomas Paine as “that filthy little atheist” – inaccurately, Paine being a Deist and scathing critic of nearly every form of Christianity that he encountered.  Roosevelt’s “Citizenship in a Republic” speech given in Paris in 1910 has become famous over the last century for its reference to the “man in the arena” being superior to the mere critic.  Life is hard and getting things done, especially innovative things, is quite hard.  In roughly similar spirit, General Patton urged that a good plan violently executed today is superior to a perfect one next week – favoring action over a third or fourth editorial criticism of a battle plan.

The analogies from military or sporting life fall apart somewhat in the context of law practice, insofar as we attorneys do not face the risk of immediate maiming or death (end-stage capital cases aside) for ourselves, our subordinates or our clients if we fail to act immediately and boldly.  Our profession is a careful, detail-oriented craft dealing with multivariable problems that no quadratic formula can solve.  Our squad, er, office will not die of shrapnel wounds or dysentery overnight if we take the time to research our cases.  War is theoretically governed by laws of war, the Geneva Convention, etc., but those laws matter less to those who are trying in the field not to die; the laws of war matter to civilian command and the REMFs (not safe for work, look it up), i.e. the critics of a given tactic or strategy.  In law practice, we live and breathe not only the law of our cases but the ethical commandments of our profession.  Those ethical concerns take precedence over good plans violently executed by the bold and the brilliant.

Hence we arrive at the provisions of “The 21st Century Lawyer Manifesto.”

Attorney Rachel Rodgers of Phoenix has become something of a phenomenon among “Generation Y” attorneys and entrepreneurs.  Licensed in New York and New Jersey, Rodgers has designed and maintained several websites and blogs including a up-style law firm portal far exceeding those of most law firm websites, a regularly maintained video blog on that site and a companion site entitled “Freedom is the New Rich“, with most of her marketing material aimed at “Generation Y” attorneys and start-up clients.  A brief use of “Ye Google” will show that Rodgers has had her critics regarding both style and substance over the last year or so, some of it in my view unnecessarily personal and nasty and some of it of substance on the issues.  This post is not an attempt to rejoin the favorite attorney blawg bloodsport of the last year – beating up on one attorney ad hominem – but will provide a philosophical response to what is essentially a philosophical document: Rodgers’ manifesto for 21st century attorneys.

Rodgers published her manifesto apparently in September 2001, but it reads in large type in the center of the front page of her Freedom is the New Rich site as of today (23 March 2012).  It’s arguably old news, but still applicable today as Rodgers’ manifesto for the next generation of attorneys.  One may purchase a “Limited Edition” stylized printing  of the manifesto for $48 USD, but may request a downloaded copy for free.  To quote the manifesto’s provisions (copied here in toto under privilege of copyright fair use):

• #1 – We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
• #2 – We embrace our weirdness.
• #3 – We will not let being lawyers prevent us from being business savvy.
• #4 – We will not let our past with tradition rob us of a future with innovation.
• #5 – We will utilize technology in all of its glorious forms.
• #6 – We value actual morality over “ethics” rules.
• #7 – We understand that the true value of money is determined by what it costs us to make it.
• #8 – We will not live in fear.
• #9 – We recognize our duty to do epic sh*t now.
• #10 – ____________________________________________ [You write this one].

Guess I will start with #1 – We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.  Why a we?  ”We” were not issued a license; there was no we for me, or for any 21st century-licensee in the Bar exam.  I recall where I was – southeast corner of the Timonium Fairgrounds, overcast day, midsummer 1994; there was no “we”, just myself and caffeine and the will to get the awful thing done in one attempt rather than two.  The very claim of a “we” is hard to process.  But maybe that’s a Generation X thing; we haven’t done much in the manifesto department.  May have been too busy listening to Michael Stipe and Nirvana.

Certainly it is laudable that the Bar no longer has the invidious discrimination of the past.  My law school (Maryland) refused to allow Thurgood Marshall to matriculate, though he was otherwise qualified, due to his race.  The school’s law library is dedicated to Marshall; he died in late 1992.  I recall being stunned when a reporter from local Baltimore news interviewed a law student – me – in the Marshall Law Library about the death of the litigator and Supreme Court justice who died having reportedly refused to set foot in the school until his death.  The lobby of the library contains framed documents showing the history of the law school civil rights efforts; one of Marshall’s first law offices was on East Redwood Street, barely 6 blocks from the Jim Crow law school that denied him entry.  Maryland Law was roughly 30% African-American and about 52% women in 1994 – a far cry from the invidious discrimination of the past, though without doubt progress remains to be made.

It’s at the “T-Shirts” and “tattoos” that the manifesto loses me.  T-Shirts are simply not what one wears to get business done.  What we attorneys (if we can say “we”) have in common is our client service.  I suppose one can get a brief done at one’s home office buck naked too, but I don’t want to embrace the bucknakedness of my sisters and brothers in the Bar.  Really, I don’t.  The people I do want to see in hang-out gear are mostly not attorneys and are not part of any manifesto.  As for tattoos, while there are some brilliant litigators and drafters with tattoos, I really don’t want to see my colleagues’ uncovered flesh to see them and if they are visible in courtroom or boardroom attire, they are simply not appropriate for attorneys in  the workplace.  Maybe this makes me a bigot or square; certainly it makes me narrow-minded and opinionated, without apology.

#2 – We embrace our weirdness.  We embrace strong values, service, effectiveness, reliability, ethics – the qualities what the clients pay for (or are still entitled to if they are clients even if they don’t pay.)  The Bar should not be, or foster, a social club praising misfittery and neurotic quirks; our business is getting done what clients need and want done, consistently with the law, ethics and good judgment.  Much of practicing law – and much of all useful work – is overcoming one’s quirks, either blasting past them or ignoring them to get work  done.  Certainly hyperconformity on non-ethics issues can be unpleasant and counterproductive but there is room in the profession, even within conservative corners of it, for individual style.  Our weirdness doesn’t help us get the job done and the job is what matters; at best, it’s something for when the work is done and we can put on those plaid pants that we don’t wear to the office for obvious reasons.

#3 – We will not let being lawyers prevent us from being business savvy.  What makes the practice of law distinct are legal training, licensure and professional ethics (including both the codified rules and the values that the bright-line rules aim to protect).  Law school does little to promote business savvy most of the time, but there’s nothing inherently antibusiness about law school itself; one can learn a substantial amount about business by learning about how law evolved both to accommodate and restrain business.  Licensure and ethics, on the other hand, restrain business models.  One cannot (in most states and probably all) solicit strangers with handbills for legal services.  One cannot claim specialization in most states at all, and only under certain conditions in others.  Taking a “piece of the action” in a transaction by receiving stock of a newly formed entity generally poses an ethical conflict for an attorney – a waivable conflict usually, but still a conflict.  The list continues.  Ethics restrain many business models for attorneys; that why the codified rules are there – as bright-line restraints lest we forget our common sense and professional role..

On its own, this business savvy provision might not be harmful.  ”Business savvy” is hard to define, but read in the context of rest of later manifesto provisions it seems to suggest “doing business in a way that tests – or transgresses? – ethical bounds.”  Possibly I misunderstand this provision but the purpose of a Manifesto is, in fact, to make matters manifest i.e. clear and conspicuous.

#4 – We will not let our past with tradition rob us of a future with innovation.  In itself, this is probably harmless.  Lawyers who were sworn in in 1994 (as was I) had their legal education entirely pre-internet as it didn’t exist as a word, but their entire professional lives have been in the post-World Wide Web (remember that phrase?) era.  At one point, the dictation machine was an innovation; so was the ball-point pen.  Using modern business tools to get bona fide business done shouldn’t be a problem.  To a large extent, modern word processing tools were driven by commercial demand from the Bar to replace typewriters, I am told.  Even cloud computing (a fancier set of practice tools operating in the same “pseudo-space” that email did and does) is now considered broadly acceptable so long as attorneys engage in due diligence.  But what sort of innovations are contemplated here?

If the innovation involves new business models, the mere novelty of such business models shouldn’t condemn them.  Rodgers raised the point bluntly in a post at Solo Practice University (where she and I each teach online courses and where she also blogs) in a post entitled “Ethics Should Not Be Used as a Weapon Against Young Lawyers.”  I would agree with her specific point: ethics should not be used as a weapon, period, because ethics exist not to promote attorney “gotcha games” but to protect clients.  Attorney discipline, in my state at least, exists primarily to protect the public and the position of the Bar as a servant of the public, not to punish anyone; see e.g. AGC v. Maignan, 423 Md. 191 (2011), and AGC v. Stern, 419 Md. 526, 559, (2011).

Ethics, however, are more than a mere “past with tradition”; they bind us presently and without reservation.  It is one thing – and maybe a good thing – to advocate attorney ethics reform.  It’s another thing entirely to dismiss concept of professional rules, as opposed to their specific composition.

#5 – We will utilize technology in all of its glorious forms. Well a pedant could ask whether the law offices managed by the signers of this manifesto would use slide rules, which we nerds of a certain age find glorious.  If so, they might have a shot of getting me on board.   (Oh, of a certain age…..) I have a feeling, though, that “glorious” here means “most recent” and that the “techne” of glory will derive from Apple’s or Fujitsu’s inventory.  What makes technology glorious, particularly glorious for attorneys?  In the end, it’s about fulfilling duties to clients so I guess any technology from the ball-point pen through trial exhibit software for wowing a jury with an iPad might qualify.  How technology is “glorious” is unclear to me, especially from a professional point of view; technology is useful, cost effective, safe, reliable (or not) but of questionable glory in my view.  Even if technology is glorious, law practice is about getting things done, most of them mundane and non-glorious.

#6 – We value actual morality over “ethics” rules.

Ahem.

Well, you cannot accuse Rachel Rodgers of timidity.  This is one loud “ΜΟΛΩΝ ΛΑΒΕ” to her every critic on ethics issues.

A bolder challenge to the very concept of ethics rules, with ethics in the quotes of sarcasm, I have not read elsewhere.  Every state has ethics rules and every state has an enforcement mechanism for those rules.  If I were to find myself in receipt of an ethics inquiry, I personally would not want a declaration of war against ethics rules as a concept on my website, but becoming a father of two boys with disabilities takes the Thermopylae Spartan out of a lot of us.

Aside from her greater boldness than mine, the issue remains: is it proper for attorneys as a collective to rely merely on “morality” or instead to have a system of rules defining attorney conduct and misconduct?  I’d say no, that we need not only a sense of morality (which may vary dramatically because, after all, we come in all shapes, sizes, T-Shirts and tattoos) but also bright-line rules, the transgression of which results in attorney discipline.  Of course, we could try to agree on moral issues and put them into rules but – oh wait, we did that and called them ethics rules.  It’s reasonable to advocate attorney ethics reform on specific rules, but I don’t think that discarding the concept of ethics rules itself in favor of a more amorphous “morality” is proper, or even possible without wiping out the profession itself.

#7 – We understand that the true value of money is determined by what it costs us to make it.  Nothing ethically objectionable about this Manifesto provision.  Reasonable people may measure the value of money differently; they own it and in the end it’s their valuation that matters.  I value a dollar because I value myself, my children, the people I love and the moral right of people who have valid claims on which I owe.  My hunch is that Manifesto provision #7 addresses one of the themes of Freedom is the New Rich, namely that time and freedom are forms of wealth or should be considered such.  Rodgers advocates a virtual practice model on her site and offers online materials to that effect.

#8 – We will not live in fear.  It would not be proper to criticize anyone’s religious refusal to fear; e.g. “ Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.” (Psalm 23:4)  As a practicing attorney of 17 years I do live in fear – not in debilitating terror but with some fear that, through inattention or insufficient knowledge or effort, I may let some client down.  Most of what I do can be remedied through money; that’s why my malpractice insurance is paid timely he same way that my car insurance is, though I have never had to put either one to the test.  Some of what I do cannot be remedied with mere money; money doesn’t really remedy time in jail when jail wrecks what matters most (career, family relationships, going to daughter’s graduation, etc.)  So yeah, I fear and most responsible lawyers I know have some fear.

Military training doesn’t teach not to fear; it drills performance in the face of fear, chaos, limited information, strained command chains, low supplies and nighttime darkness, and teaches courage as a healthy response to fear.  (To avoid misunderstanding, I am NOT a veteran of any military service.) Maybe I agree with #8 to some extent; it might just be a semantics issue.  Fear makes you smart; terror makes you quite stupid and unable to get things done well.

#9 – We recognize our duty to do epic sh*t now.  Well, I don’t know what this means precisely.  It’s not the sort of language I usually use in a professional context.  Insofar as I understand it, I disagree with it, especially as aimed at the target audience of Gen Y attorneys who, by age cohort, are very newly licensed in almost all cases.  To whom is the epic sh*t duty owed, anyway?

I don’t know what “epic sh*t” is precisely but I guess it means high-impact, high-dollar, high-prestige legal work.  If that’s the case, is the risk remotely worth it?  If you don’t have epic levels of malpractice coverage – I guess epic per occurrence, 3x epic per annum – you have no business taking on epic work.  Even if you do have the coverage, that’s only step 1.  Are you competent enough to get the work done, including competent enough to avoid or at least correct skill-based errors and other errors timely and without damage to the case?  Are you competent enough not only to do the work, but to advise the client on reasonably foreseeable consequences of the work being done properly or improperly?  Part of competence is knowing where you are, not where you hope you are, on the spectrum of competence.  Most importantly, a lot of good legal work is non-epic and designed to be non-epic (i.e. hidden, confidential – not the material of Nordic sagas.)

I have several advisees/mentees in Maryland, all of whom might be reading this post of mine but if they only read this response to #9, I’m happy.  Early on is NOT the time to do “epic [stuff]” – at least not in representing clients.  It’s the time to train, develop skills, practice, argue with mentors, get more mentors, watch and take notes as others handle major cases.  It’s time to second chair some cases perhaps.  It’s time to sit in on depositions and watch how black belt cross-examination works, to pitch in on a motion for summary judgment or a suppression hearing.  If you want to do epic stuff, then break the record for the biggest fundraiser for charity in your town, run the triathlon or win your local tango competition.  Early on, you owe yourself and the Bar the duty NOT to do “epic stuff” with the law license until you are strictly competent and able ethically to take on high-risk work.  Accordingly, I think that #9, for new attorneys, is incorrect.

#10 – ____________________________________________ [You write this one]. Not sure if it’s a manifesto if it’s a fill-in-the-blank.  In general, I am not ready to sign on to a document that other people can fill in later, for the same reason that I don’t hand out blank checks signed.  While this might be over-lawyering the document to death, it is in fact a LAWYERS’ manifesto and the “blank check” line speaks to my philosophical objections to the concept.

If I had to sum up how I’d fill in #10, I would it as follows: (LEAST OF MY CLIENTS) > (SUM(#1:#9)).  This manifesto says a lot about “we”, a lot about style and “glorious” tech and weirdness.  It makes a headlong assault at legal ethics as a category.  It commands that new attorneys fulfill their alleged duty to do epic things NOW without waiting for additional skills to develop.  The document doesn’t discuss skills, self-improvement, mentoring (either seeking or providing it), pro bono work, competence or clients.  I cannot sign on, and I cannot recommend that my mentees in Maryland sign on.

Having written a negative assessment of the manifesto, I will say what I think is admirable about Rachel Rodgers herself.  Though I disagree with her approach, I admire her guts.  Her eye for design and style exceeds mine by a very wide margin, and she is a significantly more effective video presenter (and, I assume, editor) than am I.  No one can deny that she has been, during the last year of red-hot debate about her practice approach, Roosevelt’s “woman in the arena” as it were.  Serious disagreements aside, I wish her well and it’s first round on me if she ever makes it to Baltimore.

“I am a brand-new lawyer and I don’t know how I can compete.”

“I cannot claim expertise because I don’t have it, but if I don’t claim it I cannot get any experience, i.e. expertise.”

“How do I compete in this economy as a new solo lawyer?”

There are a lot of ways that a new lawyer can compete with other attorneys, including more experienced attorneys.  A lot depends on what commitments you are prepared to make.

1)  In most states, claiming to be an “expert” is ethically suspect or outright prohibited.  Even if your jurisdiction allows it somehow, it is almost certainly unethical conduct for you under your state’s version of Rule 7.1 (truth in advertising, etc.) and Rule 8.4 (misconduct = conduct involving deceit or misrepresentation.)  Don’t do it.

2)  Instead, consider claiming NOT to be an expert.  Why?

a) It is the right thing to do because it’s the truth – if you are new, you don’t have experience, which derives from the same Latin root as expertise.

b) It lowers expectations of the client so that if there’s a hiccup, they will be more forgiving.  (Obviously, you must be competent, i.e. adequately possessed of judgment and skill to get the work done, to take the case at all under Rule 1.1.)

c) It keeps you humble, i.e. makes you more likely to seek out the answer.

d) It is a powerful, absolutely ethically approved marketing ploy that will shock and stun more than a few clients and potential clients.

How often do people hear, “I am competent but I am NO expert at this”?  I don’t know that it is in any way unethical to use countercultural shock strategies like honesty with clients and potential clients. If anyone is aware of it being unethical to be brutally honest, due to the risk of stunning clients like deer in the headlights, please let me know the citation.  Maryland has no prohibition on blunt honesty to my knowledge, though some states might fear the emotional effect on clients and potential clients.

What’s the competitive advantage?  Well, after the client recovers from the shock, you will be remembered.

3)  What CAN you really compete on?  Well, you can theoretically compete on tech-savviness, but I am not convinced that clients care about tech toys.  Maybe iPads are “cool” for jury work or some types of presentations in transactional practice, but I doubt it.  What do clients care about?  Getting what they pay for, getting treated like a human being, good results, good access, empowerment, justice, revenge, etc., in my experience, though I don’t endorse all of these motives.  Point: don’t view tech as a client relations or competitive advantage unless you KNOW (not think or hope, KNOW) it’s an actual advantage.

4)  Educating clients.  A lot of lawyers fall short on this.  Not all clients want to be educated about the legal system, but many do.  Many may not know they want it, but when they learn more they appreciate more what you do.  Many clients want to feel empowered or reassured; education may help with either emotional motive.  You may not have “expertise” – if you are new, you don’t – but you can help clients learn more (if they want to learn.)

On this site, there are pages that describe, in (I hope) pretty plain language, the basics of Maryland unemployment insurance appeals procedure and Maryland traffic court procedure.

5)  Calling people back timely.  My office has a strict policy: clients get a call back with 24 hours, or an apology for the breach of the Client Bill of Rights which my office adheres to.  Ask your carrier or your disciplinary authority: what angers clients?  I’ll bet you a crabcake in Baltimore that the answer will be failure to respond to communications.  I don’t promise 24-hour returns on email, but I return calls within 24 hours.  Do not worry that the client will interpret your prompt callback as evidence of a lack of work; tell the clients that their time merits respect (which is true) and that’s why you called back fast.  Who can argue with that?

An attorney near me who does some of the same work that I do has lost clients to me, a lot of clients. Why?  Because she is a very good lawyer but not so quick with the return calls, whereas I am prompt.  I view it as her buying me lunch, often.  I am not “stealing” the clients; the clients just go where they are well-treated and if my esteemed colleague won’t return her calls, I will return mine.  Technology that makes you NOT miss or lose phone calls is actually a worthy spend.

6)  The human touch.  Do you know any arrogant lawyers who take a high-and-mighty tone with everyone?  Of course you do.  They may know more than you, but you can be disciplined to extend courtesy to a visiting client, guide the wheelchair-using client with her wheelchair, cane, seeing-eye animal or bad hip to your office, offering a cold or hot beverage and thanking her.  This is not so hard unless you are incapable of the human touch.

7)  Using PROPER terms of address, PROPER greetings and pronouncing names PROPERLY.  Never, and I mean never, address a client by her or his first name if she or he is over 18 unless invited.  In my office, addressing a senior citizen by his/her first name unless invited would be a firing offense if I had associates to fire (I don’t.)  In several American subcultures, that form of disrespect is extremely offensive even with younger clients. Don’t ask to address the client by first name; let the client direct you.  There are books on proper forms of address for clergy, academics, military and diplomats, etc.; get good at those and don’t be afraid to ask questions to get it right.  If your client is a Marine Lance Corporal or a Marine Corporal, it’s a very good idea NOT to get those ranks mixed up, as doing so is considered disrespect to both ranks.

If your clients are very religious or, especially, clergy, get it right.  An Orthodox rabbi may hesitate to shake the hand of his attorney if she is a woman.  An Orthodox priest will usually receive warmly the request for a blessing – “Father, bless.”  Getting the ecclesiastical title right matters; a bishop may be a different role among Latter-Day Saints than among Roman Catholics, and knowing that an Episcopal clergyman is usually a “priest” while a Lutheran clergyman is usually a “pastor” gives you credibility.

Similarly, it is polite to ask your client what the proper pronunciation of her/his name is if there is the least doubt.  Know that the English “j”, the Spanish “j”, the French “j” and the German”j” have four different pronunciations.  Prohibit stupidity in your office on this issue and enforce the prohibition. No sound is worse in any language than the sound of one’s name butchered by some fool’s lassitude.  If your client list includes many names from non-English-speaking regions, it may behoove you to take a lesson or two in that language.

You’d think this would be obvious, but because it’s not, you can compete.  There is nothing unethical about strict courtesy.

8)  Fanatical respect for the client’s money.  I don’t refer here to respecting the escrow rules; doing that’s a given or you are hitting the bricks to another career.  I refer to non-billing petty things, not charging for borderline items or reducing charges when something simply runs on longer than is fair or good business to bill for.  Not billing for mistakes, not billing for discussing mistakes, not billing for correcting mistakes; this triad will keep your client’s respect and gratitude for your integrity and your good sense.

Lawyers are infamous for overbilling; nothing makes a client feel better than the sense that her lawyer respects her money and her intelligence.  Consider using the “niece” test: would you tell your niece that your bill is fair and reasonable as a whole, in addition to mere technical compliance with the four corners of your services agreement? Does your bill say that you respect yourself but also respect your client?  If not, it’s a fail.  If yes, you will be competing – effectively and ethically – against your lazier, more experienced sisters and brothers in the Bar.

9)  Affinity group affiliation.  This is a hard category to define, but a good one to think about.  There is in my state a very well-regarded attorney who is known as an expert on same-sex adoption and in vitro fertilization legal work.  (She cannot call herself one, but other people call her one and apparently with great justification.)  In addition to being a very good attorney by all reports, she is also known to some extent as an attorney affiliated with the LGBT community. Does this help her practice? I don’t know.  But it is part of her “identity” at least online – not “identity” as defined by legal marketing hacks but by real affiliation, real legal work and quite possibly/probably her own identity.

I know of another attorney near me whose trial practice is very respected and who is without doubt a leader in Baltimore’s African-American legal community and the broader African-American community.  His communications, connections, allies, heroes, etc., are strongly derived from (though presumably not exclusively from) those communities.  I am probably not “religious” by conventional definitions of that word, but if I were, I might pray I never have to oppose him.

In LA, there is an attorney who advertises herself, or did recently, as “L.A.’s dopest attorney,” and who handles marijuana legal issues in that state.  By all accounts she is a very skilled practitioner who knows her material quite well.  I personally would not be comfortable with describing myself as the “dopest attorney,” although I am proud to be a Maryland member of the NORML National Legal Committee.  The point, however, is that she has a strong identification with that highly regulated, legally ambiguous industry and subculture and without a doubt that fact has aided her practice growth in her acknowledged area of technical skill and interest.

What do these three different practitioners have in common?  Well, all are regarded as excellent in their work, first.  But second, they also have in addition to hallmarks of excellence a practice identity that is connected to a specific culture or subculture.  Can I tell you how to apply this to your real life?  No, but maybe you might be the first _______-American attorney in your community.  Or maybe you are a vegetarian and you have a passionate interest in promoting that community.  I wouldn’t know if there’s a need specifically for a “vegetarian community attorney”, since I am not a vegetarian.  But maybe you can establish – ethically, tastefully and wisely – a bona fide subcultural identity or affinity to your practice that reflects your real life, values and relationships.  It’s worth thinking about though there’s no “answer” here other than to pursue excellence first.

You can probably build your practice successfully despite the difficulties of starting out, being inexperienced and facing a difficult economy – IF you get good, ethically cautious and generous mentors, you are diligent and ethically cautious and you actually want to do it.  Good luck, counselors.

Model Rule 1.8(j) of the American Bar Associations suggested ethics rules for attorneys states as follows:

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Not all states that broadly follow the Model Rules in their ethics codes have adopted this rule. Maryland and Louisiana both rejected this rule while adopting most or all of the rest of Model Rule 1.8, which addresses a number of different ethical conflict concerns including representing co-defendants or co-plaintiffs, not naming oneself as a client’s will beneficiary under most conditions, ethical issues involving media/publicity rights, etc.

When I first read this Model Rule as a young attorney, my reaction was immediate and swift: OF COURSE attorneys should not be sexually involved with their clients whatsoever.  Had I been on the ABA committee as a young attorney, I probably would have pushed for a more severe language.  The act of getting intimately involved with a client just seemed like such unbelievable bad news that I would have wanted any attorney “dumb” enough to violate the rule to spend time in the ethical penalty box, under the theory that stupidity should be expensive on general principles.

Age and experience have affirmed my revulsion at the foolishness of getting sexually involved with a client, and in my office it would be per se a firing offense.  I am more inclined convinced now, however, to think that that Model Rule 1.8(j) as written is unwise for two practical reasons.

1)  Inclusio unius = exclusio alterius – the inclusion of one example constitutes the exclusion of others.  By barring “sexual relations”, the rule would appear to admit personal relationships that do not cross the line of “sexual relations.”  The last latter term was not explicitly defined in the Model Rules and, infamously, has been the source of late-night comedy show humor since the President Clinton scandal of 1997-1999 (I refuse to refer to that scandal by the surname of the young Executive Branch employee.)  By prohibiting “sexual relations”, the rule could by implication allow relationships between lawyer and client that are dysfunctional, ethically compromised and conflict-ridden, but by narrow construction fall outside of “sexual relations.”

2)  Some “sexual relations” or “sexual relationships” simply should not fall into attorney disciplinary under principles of common sense, fundamental fairness or decency.  Perhaps a concrete example may help.

Adrienne Attorney meets Calvert Client through a mutual friend attorney Nora Networker, who knows everybody.  Calvert got caught allegedly doing 62 in a 50 mph work zone on the Baltimore Beltway near Liberty Road, and asks Adrienne to represent him on the ticket as a favor.  Adrienne normally charges $400.00 for this but waives the fee as a courtesy to Nora.  Calvert and Adrienne, turns out, have lots of friends in common and go out for lunch.  They really hit it off; they turn out to belong to the same religious community and have family members in the same social organizations.  The court date is 2 months away.

Adrienne and Calvert attend a party thrown by Nora on their fourth date, three weeks before the speeding ticket trial date.  After a night of flirting and mildly wine-soaked humor, they crash at Adrienne’s place.  As sometimes happens, conduct ensues in private that would not meet the full approval of the spiritual leader of their community.  Finally on the trial date, Adrienne represents Calvert in court; the law enforcement officer no-shows and the charge is dismissed.

A few weeks after the court date, Adrienne has second thoughts about whether the personal relationship is wise.  She’s decided she’s not comfortable being at variance with the teachings of her religious community, and tells Calvert that she’s just not comfortable with the relationship as it currently stands.  Calvert responds poorly and leaves in a huff.  He tells Nora about the details of the relationship the following week, stating that it was going well and then went to hell.

a)  Should Nora now be under a duty to “squeal” to Bar Counsel?  Is this conduct that raises a substantial question as to Adrienne’s fitness to practice law in this state?

b)  Should Adrienne face public discipline, call her carrier for a disciplinary attorney, face a peer review committe, face the Commission, face a closed-door proceeding in Circuit Court, face seven judges in red robes in Annapolis and possibly lose her attorney permit when the ethical impact of the incipient sexual relationship on the client’s legal position was probably zero?

c) Should the taxpayers of Maryland pay Attorney Grievance Commission investigators, Assistant Bar Counsel, etc., salary and benefits to pursue the facts of Calvert and Adrienne?

As stated, I find the idea of initiating a sexual relationship with a current client to be a serious judgment lapse justifying a firing, even when it’s just a speeding ticket.  But it’s probably wise that my prejudices and quirks don’t inform the attorney ethics rules of this state.  Model Rule 1.8(j) was a worthy start to the discussion, but in the absence of any prejudice to any client’s rights through actual ethical conflict, it’s probably an overbroad rule in practice.