f/k/a archives . . . real opinions & real haiku

March 4, 2006

trust, germs, depression, and other lawyerly issues

Filed under: pre-06-2006 — David Giacalone @ 9:10 pm

There are a number of stories and ideas that I want to discuss
here, before they become stale or misplaced.
tiny check Making Economists Behave: How often have you been annoyed or
bemused by economic purists, who praise or pan a proposed idea
based on whether it fits their model of economic logic, no matter what
appears to be happening in real life (e.g., our trivializing economics).
Well, the brand new edition of Harvard Magazine has some ammunition
(or solace) for those of us who prefer to deal with the real world and real
people, instead of homo economis.
In “The Marketplace of Perceptions” Behavioral economics explains why
we procrastinate, buy, borrow, and grab chocolate on the spur of the
moment,” (Harvard Magazine, by Craig Lambert, March-April 2006), we
get a brief history of the rise of behavioral economics and its arguments
against Economic Man — the human actor who “makes logical, rational,
self-interested decisions that weigh costs against benefits and maximize
value and profit to himself.,” and who simply does not exist outside classi-
cal economic theory.
honest flip
The article explains that human being are in actuality quite vulnerable
to how the decision-maker describes the choices to himself and, therefore,
to how they are framed by the presenter.  Noting that “persuasion is not edu-
cation,” it asks what the framing concept means in the consumer marketplace
and in politics.  It ends with the hope that “The models of behavioral econ-
omics could help design a society with more compassion for creatures
whose strengths and weaknesses evolved in much simpler conditions.”
“tinyredcheck” I found the Sidebar Games of Trust and Betrayal especially
interesting.  In it, associate professor of public policy Iris Bohnet,
of the Kennedy School of Government, explains that humans are
not merely risk averse, they are trust averse — and, therefore, very
vulnerable to betrayal.  Because of this, people tend to be more
willing to take a risk when the agent of uncertainty is nature than
when the agent is another person. Feeling betrayed is a deeper
hurt than suffering an economic loss.
wolf dude neg
The piece left me wondering if this fear of trusting and betrayal
might help explain why so many nonlawyers have such negative
feelings about lawyers.  When you loudly proclaim yourself to be a
trusted agent and protector, your failure to meet expectations and
keep promises becomes a matter of personal betrayal, not merely
an incidence of a customer dissatisfaction.

I first learned about the Clorox Co. study comparing professions to

determine the “germiest jobs” from BenefitsCounsel.   It has been

duly noted elsewhere.  Although no one could be surprised that

teachers have the germiest workplaces, many were surprised

that Accountants were the next germiest, but lawyers were the

least germy out of the ten jobs studied.  I want to raise two points:

– First, why would it be that the “desks and pens of lawyers

had the lowest levels of germs”?  Assuming that germs come

from handling things, contact with humans, and food, can we

conclude that: lawyers don’t use their pens much (or keep more

than they need on their desk)?  that they don’t often touch

or interact with other humans?  that they eat at their desks a

lot less than other professionals?

– Second, I went to the Clorox press page for the study and

found only this dyspeptic disclaimer: Disclaimer The inf-

ormation contained in this document reflected management’s

estimates, assumptions and projections when it was published.

However, Clorox has not updated it since then and makes no

representation, express or implied, that the information is still

current or complete. The company is under no obligation to up-

date any part of this document.”  That sure makes me feel

warm and fuzzy as a consumer.  Even more, it makes me so

happy that I never had to think about or write such drivel as

part of my law practice.

jailbird neg

David Tarvin at Omaha Law and Stan Sipple at Huskerblawgs raised some

good questions last month, after 56-year-old lawyer Attorney Tom Gleason

was charged with stealing as much as $60,000 from clients (ketvNews, Feb.

2, 2006).  Gleason’s lawyer has stated that his client suffers from psychiatric

problems, including acute depression and will voluntarily surrender his license.

What makes the case more than a typical lawyer-thief matter is the fact that

Gleason — contrary to the Nebraska Supreme Court’s policy of automatic dis-

barment over misappropriated funds — had been merely suspended from practice

back in 1995, when he was also charged with misappropriating client funds.  The

Court found special mitigating factors, because Gleason was suffering from depres-

sion, had sought treatment prior to having charges brought against him, was coop-

erating fully, and was deemed to be unlikely to repeat his unethical behavior.

tiny check Tarvin says this will now make it harder for other lawyers to show mitigating

circumstances in disciplinary hearings.  Sipple says the case shows the

Court can’t adequately regulate lawyers and  “It’s time an outside state

agency starts disciplining attorneys, one subject to the greater priority the

Courts should have of protecting the public” [rather than protecting the

image of lawyers].


Of course, one case of recidivism does not prove self-regulation doesn’t work.

Nonetheless, what we said three years ago is still true (if you add three years):

Thirty-three years after a blue ribbon panel of the American Bar

Association declared the lawyer discipline system to be in a

“scandalous situation,” and over a decade after a follow-up ABA

report in 1992 found that the system was still “too slow, too secret,

too soft, and too self-regulated” there is very little improvement.

ethicalEsq has consistently supported establishing the reforms urged by the

group HALT, including “Replac[ing] the failed system of self-regulation

lawyers policing lawyers — with disciplinary panels on which non-lawyers have

a majority voice.”  Or, as we discussed here, following the new structure in the

UK might be more effective.   It entails “the establishment of a new Commis-

sioner for legal services complaints, stripping the Law Society of England and

Wales of its ancient right to regulate the profession.”

“tinyredcheck” HALT issued Lawyer Discipline Report Cards to each

state in 2002.  Nebraska received a mediocre C-minus, ranking

it in the 28th spot.  Nebraka’s system got a D+ for Adequacy of

Discipline Imposed.

less than eq s

When mitigating circumstances can justify (even more than the usual) leniency

is a difficult question.  As our prior post, Mitigate This?, states, the policy adop-

ted in the District of Columbia seems about right. — “issues of disability and in-

capacity . . . can significantly affect the choice of an appropriate disciplinary

sanction”, with proof of rehabilitation being very important.  However, if the lawyer

fails to establish that the disability is substantially related to the misconduct, the

lack of a “but for” nexus to the misconduct makes the disability irrelevant. [see

In re Lopes, 770 A.2d 561, 2001]

tiny check It is difficult for me to see how depression can be said to

mitigate stealing from a client. The effects of depression, and

side effects from medication, can certainly lead to missed dead-

lines and similar neglect of clients.  But, depression does not cause

dishonesty and thievery, even if it does lead to lower income and

thus a greater temptation to misappopriate funds. [see Lopes, supra]

[thanks to Walter Olson for telling me about the Nebraska story]

graph up gray

With the economy improving for college graduates, fewer people are

applying to law schools. (Columbia Daily Spectator, March 1, 2006;

via jd2b)  I believe our nation will be better-served if more of its best-

and-brightest seek careers outside the legal profession.  Elite minds

are not needed to perform the vast majority of legal services. Although

there may be many reasons for the drop in law school applications

(4.6 percent last year and 9.5 percent this year), I like the one given

by Laura Rosner, Columbia College ’06.  According to the Spectator:

“She said that she never wanted to practice law and realized

that her interest lay more in political economy and government.

Additionally, she said she was influenced by a group interview

session she attended for Georgetown Law School.

” ‘Seeing the type of people there, these people are really ob-

noxious, I’m not enjoying this at all, and if this is what the core

classes of law school are going to be like … then forget it, this

is really not what I want,’ Rosner said.”


tiny check Finally, I wish the folks at Blawgr well with their new lawyer forum.

And, I respect their decision to keep the “blawg v. blog” debate off of

their website.  However, I must say, here at my website, that the de-

cision to spell their name without the “e” in the “er” suffix — no matter

how humorous or ironic their intent — looks like a sad attempt to be

hip and timely.  Instead, it will only result in a site that dates itself as

born in the e-less malaise of late 2005 and early 2006.  (see our prior

p.s. Yesterday, someone in Charleston, West Virginia, Googled

billionaire plaintiff’s attorney Evan Schaeffer> and ended up at

this weblog.  Last August, I referred to Evan as a “Prospective (and

contingent) Vioxx billionaire plaintiff’s lawyer.”  My apologies to any-

one whose expectations were raised recklessly. Of course, should

my optimism bring Evan some successful business opportunities,

I’ll expect him to remember his Schenectady friend in some appro-

priate manner.

“lipsG”   Randy Brooks never forgets his e’s, p’s or q’s, and

always writes with diligence and zeal.  Here are two very

recent poems and two from his 1999 book School’s Out:

tongue out

the boy guides a new airplane

round and round

I nibble

behind her ear. . .

she stirs the batter

all tongue

the clam in the fire’s


sisters bent over

the heating vent

adult talk below

“tongue out” – The Heron’s Nest (VIII: 1, March 2006)

“I nibble” – frogpond (XXIX: 1, Winter 2006)

“all tongue”  & “sisters bent over” – School’s Out (1999)

wolf dude negF

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