Let’s Be Honest About What Being a Lawyer Really “Is”

At a recent conference, Deanne Koll picked up a black t-shirt with the words “Happy Lawyer” screen-printed on the front. She took one from a vendor and thought, “well, that’s funny.”

In “’Happy Lawyer’ Is Not a Contradiction” (Wisconsin Lawyer, January 2018), Koll explored why she thought that t-shirt was so funny and why she was so drawn to it. She wrote, “Was it because lawyers are categorically unhappy? Was it because no lawyer would ever wear that because – if we’re anything – we’re persistently pessimistic? Or, was it funny because even if we are happy, we can’t openly say so because we feel compelled to play into the scenario of overworked, tireless advocates?”

She concluded by writing, “We need to change the narrative. Let’s make it okay to be a happy lawyer. Let’s celebrate our profession. Believe me, I like bellyaching about work as much as the next person, but let’s also give each other the ability to vocalize the great things about joining this profession. We owe it to each other – and the future lawyers.”

Koll’s article drew a reader response, posted to the article on WisBar.

Reader: I think we need to be honest with both ourselves, and prospective lawyers regarding what our profession “is.” We need to be honest about the crushing debt (and decades required to pay it off) associated with most people obtaining a J.D. We need to be honest about how very little most attorneys graduating from law school will make for years (many years) after their graduation (income versus debt load). We need to be honest about how many young (and some not so young) attorneys have to make hard choices each month about which bills to pay, and which bills will be allowed to become delinquent. Do I pay my rent, or do I make my car payment?

We need to be honest about the toll this profession takes on human relationships, and how it has the propensity to warp even the truest sense of right and wrong. We need to be honest about the prevalence of alcoholism, drug abuse, and serious physical and mental illness (caused in no small part by unending stress) among our ranks. In a room full of lawyers chances are one of the two people sitting next to you is on the brink of unraveling before your very eyes.

I wish someone had been honest with me. It may not have changed my decision to become a lawyer, but it would have at least prepared me for what I encountered during my first decade of practice. People have the right to know what they’re getting into. We have an obligation to tell them.

Can a person find happiness in the legal profession (I define happiness as being able to sleep most nights and not wake up in the morning with clenched fists and clenched teeth at the prospect of going to work)? Absolutely. But it is rare. We need to be honest about that too. Lawyers fight for a living. We may not use our fists, but the physical and emotional toll is the same as if we did. Lawyers are metaphorically battered (by themselves and others) on a daily basis.

In addition to fighting for a living, we are mandated to keep secrets for a living – sometimes horrible, devastating secrets. Secrets so disturbing that despite our best efforts to compartmentalize them, our bodies rebel with sleeplessness and anxiety. No matter how brutal the day (or the secret), there will be no airing of grievances. There will be no shoulders to cry on. We need to be honest with prospective lawyers about that too.

WisLAP is a wonderful resource (and completely confidential), but it can’t be with you all the time (no one can). Psychiatric and medical professionals are also a wonderful resource, but their services aren’t free. If one is evaluating whether or not to pay a bill to maintain their housing, or keep the vehicle they need to continue generating revenue, chances are there isn’t any money to pay for medical or psychiatric treatment no matter how urgent the need. Plus, how many of us can really afford to take time away from work to obtain treatment? The clients can’t (won’t) wait. The work won’t stop. Staff need to be paid and the lights need to stay on...

All of that being said, our profession is vitally important. We assist the injured. We defend the accused. We are a constant check on the power of others. We have a unique ability to shine a light on the wrongs of society. We can speak for those who, without us, would have no voice. We cannot and should not diminish the significance of our role.

So, I write not to discourage people from becoming lawyers, or from remaining lawyers. I write to encourage all of us to be honest both with each other and our future ranks about what being a lawyer really “is.”

It took courage to author this article (knowing who her audience would be), and Ms. Koll should be applauded for that.

Amy M. Flottmeyer
La Crosse County Corporation Counsel

Representing Both Clients in a Divorce, Unwaivable? Not So Fast

I disagree with the conclusions of Diane Diel in “On Family Law: ‘Representing’ Both Clients in a Divorce? Unwaivable!” (WisBar InsideTrack, Dec. 20, 2017). Wisconsin SCR 20:1.07 does allow for one lawyer to represent both parties to a divorce.

Today many divorcing parties cannot afford to have two lawyers handling their divorce. In fact, in many jurisdictions 90 percent of the litigants appearing in divorce court do so without a lawyer. In this climate, the American Bar Association Ethics 2000 Commission, which redrafted the rules governing lawyering, created comments 26-33 to Rule 1.7 to allow for such bilateral representation. These comments are adopted verbatim in the Wisconsin rule.

One lawyer may represent both parties, if the parties have agreed on the settlement, and if it is unlikely that a disagreement will arise, or if a disagreement does arise, it is unlikely that the clients will be prejudiced by the attempted mutual representation. If the common representation fails, the lawyer must withdraw and cannot represent either of the parties in that or a related matter. The clients must be advised that between them the confidentiality privileges will not apply. The lawyer has an equal obligation of loyalty to both clients.

This limitation of scope of representation must be fully explained to the clients, and their consent confirmed, in Wisconsin, in writing, pursuant to SCR 20:1.29(c).

(Note: The author is a former chair of the State Bar of Wisconsin Family Law Section, taught legal ethics as an adjunct professor at Marquette Law School, and was an observer to the Ethics 2000 Commission, which created the present Rules of Professional Responsibility, on behalf of the ABA Family Law Section, the American Academy of Matrimonial Law, and the American College of Family Trial Lawyers.)

David L. Walther
Walther Bennett Mayo Honeycutt P.C., Santa Fe, N.M.

Duty to Follow Client Instructions?

In “Do You Have the Right To Plead Not Guilty When Your Lawyer Disagrees?” NPR journalist Nina Totenberg wrote about oral arguments to the U.S. Supreme Court in a case in which the defendant’s lawyer, over the defendant’s explicit objection, told the jury the defendant was guilty.

The State Bar posted the article on Facebook (Jan. 18, 2018), and a reader commented.

Reader: A lawyer does not have the right to disregard the client’s wishes and act in a manner directly contrary to the client’s instructions. If the lawyer disagreed, if he believed the instructions improper or wrong and could not persuade the client to change course, then the appropriate action was to resign the engagement.

Michael P. Richman
Hunton & Williams LLP, New York, NY

Elder Abuse Hotline Operational

In a Facebook post, “Elder Abuse Hotline Set Up in Wisconsin” (Jan. 11, 2018), the State Bar reported 1 in 9 seniors has reported abuse or neglect in the last 12 months. Now, the Wisconsin Attorney General has set up a reporting hotline, (800) 488-3780.

A reader commented.

Reader: I am sure this is a great service, but people should know that every county is required by statute to have an elder abuse response unit, and most of those units work hard to investigate and protect our vulnerable adults. The state hotline is fine, but represents a certain amount of PR over substance.

Gretchen Viney
U.W. Law School, Madison