What’s great about being a lawyer? Find out as Abrams takes us on a ride up College Ave and onto the Florida State University campus while he discusses the joy of being a lawyer, the secrets they keep, and the duty to keep a client’s secrets.
Lawyers
A Lawyer’s Duty to Protect Clients From Identity Theft
I was honored today to present a talk for the Big Bend Chapter of the Florida Paralegal Association on the topic of “Protecting Our Clients From Identity Theft” at their annual conference. The Big Bend Chapter of the Florida Paralegal Association is a great group and I always enjoy the opportunity to be guest speaker for them. The presentation I gave is below:
Harper Lee and Shakespeare – Fictional Lawyers Who We Aspire to Be
“Kill all the Lawyers” was a comment in an email I received this week as part of a group discussion on a safety issue I raised as part of a community group where I donate my time. In some ways, the timing of the comment is somewhat ironic given that Harper Lee, author of “To Kill a Mockingbird” and creator of the iconic lawyer character, Atticus Finch, died this week.
It is impossible to know how many legal careers were inspired by 8th grade English classes reading “To Kill A Mockingbird. The book continues to resonate with readers and greatly influences how we view lawyers. In many ways, Atticus Finch is the lawyer that we all aspire to be. A noble advocate fighting for justice on behalf of an innocent client against the biases and prejudices of an unjust world.
As someone who practices law in the South, and often in rural communities, it’s impossible to escape the shadow of Atticus Finch. I remember thinking of him years ago during one of my earliest cases when I stood to address the Court in a small county courthouse and I heard the boards of the wooden floor creaking under me. The nostalgic atmosphere of the century old building put me in mind of the story and reminded me of the nobility of defending those who live on the margins of our society.
My world isn’t really that different from the book. I regularly enter old courthouses set in the center of town with monuments to confederate soldiers standing guard before the main entrance. I currently have an elderly black client who grew up in the segregated south and raised his family with money he earned by picking tobacco. Of course, the world and the law are not static and things have changed. For instance, a Black female Judge now is the sole judge sitting on the County Court bench of the courthouse pictured to the left with the confederate soldier.
Equally impossible to escape are the comments such as the one I received in the email seeking to vilify lawyers, often misquoting the phrase, from Shakespeare’s play “Henry VI”, which goes: “First thing we do, let’s kill all the lawyers”. This phrase is probably one of the most misconstrued phrases of all time. As explained by Professor Stephen Gey, during an FSU Law School graduation ceremony several years ago, the phrase was uttered by the bad guy in the play. You can view Professor Gey’s excellent and entertaining talk on You Tube here:
https://www.youtube.com/watch?v=1i0MNOwNNsM
Both Harper Lee and Shakespeare created works of art that reflect elements of truth about law and lawyering. Despite the common misunderstanding of Shakespeare’s quote, both Harper Lee and Shakespeare speak to the nobility of the law and the legal profession.
However, it would be inaccurate to simply declare the law as perfect and lawyers as always championing the cause of justice. One cannot forget that slavery and segregation were once given sanction under the law. The truth is that law often fails to protect the weak and vulnerable and it often fails to deliver justice. Atticus Finch did not win his case in “To Kill A Mockingbird.” This outcome parallels real life. Harper Lee’s father was a lawyer who, in 1919, defended two black men accused of murder. The men were convicted, hanged, and their bodies mutilated. It is said that Harper Lee’s father never tried another criminal case.
When I was a law student I attended a lecture by Morris Dees, founder of the Southern Poverty Law Center. I’ll never forget when he told our group of law students that in the law it doesn’t matter what role you have, but how you conduct yourself in that role. Being a criminal defense attorney or a prosecutor isn’t nearly as important as the ethics you bring to the role. You can be a corporate attorney and exist as the conscience of the organization, or you can simply be a hatchet man using the law to oppress and bully those who are weaker or have less legal resources.
The truth about laws and lawyers is complex. I know that I work in an imperfect system where justice is sometimes sacrificed for that which is predictable and efficient. I have long believed that law’s primary function isn’t justice at all, but to maintain the power structure of society in all but the most egregious cases. However, I also know that, as a lawyer, I can sometimes make a difference and create justice and truth where it wouldn’t otherwise happen. When I think about Atticus Finch, I’m reminded that as a lawyer I can bring optimism, hope, and voice to injustice.
The Rewards of Friendship
A few days ago I received a letter from the President of the Florida Bar. The letter informed me that although I’d been nominated for a pro bono service award, another lawyer was selected to receive the award. When I read the name of the recipient, I smiled and felt a deep sense of pride and contentment. The lawyer selected is one of my closest friends, James Cook, a man whose influence upon me, and my development as a lawyer, can’t be overstated.
This got me thinking about friendship and its impact upon our lives. I’ve never seen myself as one of the “popular kids” and superficial conversation is often quite difficult for me. I’m quite content to be alone reading a book, playing my guitar, or working on my computer. However, I’m nowhere near a complete hermit. I love small dinner parties with close friends where we share stories and great food. I’m very fortunate to have small group of close friends who I have known for many years and with who I feel that I have deeply meaningful relationships.
We all meet many people, probably tens of thousands, in our lifetimes. Yet, most of us have only a few close friends. What distinguishes those who become acquaintances from those who enter our inner circle of friendship? Aristotle wrote that a friend is a single soul living in two bodies and I suspect there is truth to that statement. When I think about my friend, James Cook, an image of our shared passion for justice and life-long scholarship comes to mind. I know that James “gets” the things that are important to me.
However, one might argue that shared passions could just as easily result in competition and rivalry. Consider two young baseball players, both talented and passionate about the game. While it’s true that they might find connection through their shared passion and experience, it’s also likely that they could end-up as competitive rivals.
Science many offer an explanation for why some become friends, others acquaintances, and others our competitors. According to an article published by Psychology Today friendships are established by self-disclosure and reciprocity. Research also shows that once established the friendship is maintained by acceptance, unconditional support, loyalty, and trust. However, the single most important factor in determining who becomes our best friend is more surprising:
“We become best friends with people who boost our self-esteem by affirming our identities as members of certain groups…”
That is, we find validation for our identity from our best friend. This makes sense to me. When I think about my friend James Cook, I think about the kind of person he is and my admiration for both his skill as a lawyer and his dedication to justice and scholarship. These are qualities I seek to cultivate and aspire to in myself. When approached from this perspective, our best friends are those who provide us with a double reward. Like all friends, they provide us with the connection that comes from the friendship itself, but they also provide us with connection to our own identity.
In some ways, this is a little depressing. I like to think that the joy I derive from my friend receiving the award is rooted in some altruistic characteristic within myself. However, if the science is correct, then my joy might be rooted in a sense of self-validation that lawyers like James and me are worthy of award and recognition. Maybe this isn’t such a bad thing though. After all, finding within one’s self a connection to the common well being of our fellow human beings, even when it validates our own identity, is hardly a moral failing of epic proportion. Indeed, isn’t this the foundation from which all brotherhoods arise?
Regardless of the underlying psychology, I can’t help but feel fortunate to have James, and my other friends, to share this experience we call life. Maybe it’s true that we’re all alone in the end, but having a fellow traveler around to share the journey sure makes the whole experience much more meaningful.
The Lawyer as Artist
In 1989 Salman Rushdie was quoted in the London Independent as saying:
“A poet’s work is to name the unnameable, to point at frauds, to take sides, start arguments, shape the world, and stop it going to sleep.”
To me this sounds a lot like the work of a lawyer. Is there a connection between artistic creation such as one finds in poetry and the practice law? Can a lawyer be an artist, or are we merely logical thinkers who rarely color outside the lines society draws for us?
When I was a law student attending City University of New York School of Law I lived in Brooklyn. When the long hours of studying law exhausted my energies I would sometimes take the subway into Manhattan, or “the city” as genuine city dwellers call it. Once in there, I would go to the Pastel Society of America where they offered inexpensive classes in pastel painting led by the top pastel painting artists in the United States. I loved these classes and found the process by which these incredible artists created their paintings to be fascinating. Through these classes I began to see that a tree is more than just green and brown, but is really a collection of an endless variety of different colors spanning the entire rainbow. Indeed, the only limit on the colors found in a tree is that created by the artist’s own mind. When I would return from my expedition into the world of art and creativity to the “logical” world of law I noticed that my understanding of the cases and legal principles I was studying seemed to be enhanced. I wasn’t just rejuvenated – I was inspired. It occurred to me that, after the classes, I was seeing law differently, and this led to a continuing curiosity into the intersection between law and art.
I don’t often hear people describing lawyers as artists, but in my mind great lawyers think artistically as well as logically. I love going to art museums, plays, concerts, and reading great writing because, when executed well, they provide me with opportunities to see some aspect of the world from a different perspective. For me, art is fundamental. In my spare time I play and study music. I explore Tallahassee on my bicycle and take photographs. I’ve written and performed a play about economic justice. Even this blog is a creative outlet that allows me to play with ideas. I find that art is at its very best when it takes something that is familiar to me and lets me see it in a totally different way than I’ve ever seen it before.
So it is with law. I believe that a great lawyer or judge doesn’t just see law and justice as words on a page to be blindly followed and applied. Such an approach to the law would leave it forever stagnant and allow injustices to go undiscovered. Great lawyers recognize injustices and create for themselves and others, a constantly refining vision of justice. Consider that for nearly 100 years the law and the courts in the United States steadfastly held onto the rarely challenged notion that racial segregation under the doctrine of “separate but equal” was justice. However, it took visionary lawyers such as Thurgood Marshall to show them a different perspective, that “separate but equal” would never be equal. Such work is as much art as it is logic. The question is how to tell the story such that the injustice of the status quo becomes undeniable.
The primary art form of the lawyer is that of storyteller. Our client’s cases are non-fiction stories that we advocate be viewed from a certain perspective. Our choice of words, the way in which we present evidence, the focus we give to certain facts, and the way in which interpret the law all become part of our storytelling vision. I know that many will read this and think that this idea of “storytelling” is justification for deception and dishonesty, but it’s not that at all. Effective storytelling is truthful. When a story becomes dishonest it loses the ability to fully engage us. Good stories are often messy and even the best cases usually present a challenging fact or two for a lawyer to deal with. It is the lawyer’s ability to weave the messy or difficult parts of the story into a collective whole with a positive truth for the client that I believe distinguishes great creative lawyers from the ordinary.
Many lawyers such as John Grisham, Robert Lewis Stevenson, and Scott Turow have made successful transitions from lawyer to author. In fact, so many lawyers are interested in making the transition from lawyer to author that there actually was a panel called “The Law as a Platform for Writing” at the 2013 annual meeting of the American Bar Association. While I hear many stories of unhappy lawyers, I don’t see the interest in writing as a product of that unhappiness. Instead, I see it as evidence that many lawyers see the art in our profession, and once this is recognized, are compelled to give expression to that art in as many ways possible both in and out of the courtroom.
Is Kim Davis A Truly Willing Martyr?
I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from the performance of her elected duties on the basis of religious belief. However, when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is more complicated and I’d like to discuss what I think might be going on.
ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.
As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes. It is important that we find some sort of mechanism that allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.
It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom. I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses, her facial expressions are, at best, condescending and dismissive of their emotional pain.
Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?
Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”
Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:
“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”
A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.
There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.
I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.