These remarks by Eric Cooperstein were first given at the Hennepin County Bar Association‘s annual meeting in May, then printed in the July 2013 issue of The Hennepin Lawyer, member publication of the HCBA. I am re-publishing them here because we have talked about the problems with bar associations, wondered whether they are still useful, suggested ways for them to stay relevant, and more. This is one bar association president’s answer. — Ed.
When I meet lawyers and explain that my entire law practice is devoted to representing attorneys in ethics matters, I typically get one of two responses. Either they say “There must be a lot of unethical lawyers out there who need help,” or they say “I hope I never need to hire you.” I’m always a little taken aback. When people meet ophthalmologists, I doubt they say “I hope I never have glaucoma!”
Behind these comments there lies a hope that lawyers who have ethics issues are very different from the rest of us. In a very small percentage of cases—intentional thefts, felony convictions—that may be true. Those cases account for maybe one-tenth of one percent of all lawyers who are disciplined and often they are unrepresented in the discipline process.
For the most part, my clients are people very much like you. You might be surprised to hear that you have a lot in common with my clients. They are:
- good lawyers;
- often but not always solo and small firm lawyers;
- they care deeply about their clients;
- they are proud of the good work they do for clients;
- they are typically in mid-career;
- they tend to have busy practices; and
- they have made some type of mistake.
One common mistake is accepting the representation of a client that the lawyer knew in her gut she should not have taken. Some mistakes are merely overlooking communications with the client or procrastinating on a file. Some mistakes are more significant than that: mistakes of judgment, mistakes of “perceived expediency.” A false statement, such as a lie to a client about whether the lawyer has worked on a matter. Good lawyers, like yourselves, are tortured by these kinds of mistakes.
I notice other patterns in the lawyers I represent. One that has been particularly striking to me is that oftentimes lawyers are isolated. This is a problem not just for solo lawyers, but also for lawyers who run small firms, and lawyers in larger firms. No matter what the practice setting, lawyers who are facing an ethics violation sometimes seem to have few other lawyers they can confide in. I have seen a similar pattern in lawyers who are marginalized within law firms for other reasons. It’s that sense of waking up one morning and not being quite sure who your friends are.
It seems also that the more serious the misconduct, the more isolated the lawyer is. In serious cases, there is an opportunity to offer character evidence to try to mitigate the disciplinary sanction. A recurring pattern is that my clients have difficulty identifying another lawyer in whom they have confided, who understands the respondent lawyer’s background and challenges, and can talk about the person behind the mistake.
On the other hand, I have also seen the power of true friendship. Lawyers who stand by their colleagues in spite of their mistakes. Those are the lawyers who are best able to get back up on their feet after they’ve taken a fall.
The practice of law is challenging, much more so than the public has any appreciation for. The deadlines, the trust clients place in us, the responsibility, the judgment calls, the multiple sets of rules, the pressure to generate business and collect fees—few other professions face such demands. Nobody understands a lawyer’s problems like another lawyer.
Despite how much we need each other, we have difficulty connecting. Increasingly, we spend our time in front of computer screens. Business development pushes us to spend our marketing time and dollars learning rain dances. And we love our “privacy.” Privacy, of course, was once described by Justice Brandeis as the “right to be let alone.”1 In practice it has become the right to seclusion.
At one time, most lawyers practiced in small towns. Lawyers knew each other, they knew each others’ families, and they had cases with the same lawyers time after time. There was little room for sharp practice. As decades passed we moved to big cities and become used to a certain anonymity. It is easy to be nasty to opposing counsel when you figure that the chances of seeing her on another case are slim.
After hearing this, it should not come as a shock to any of you that I have become a bar association evangelist. A bar association, particularly a geographically-based bar association, has a critical role to play in connecting lawyers and fostering a healthy profession. But we need to make some adjustments to the way in which we view our bar association.
For many years now, one of the primary rationales for belonging to a bar association is for “networking.” There is nothing wrong with networking; we all need to eat and a network of referral sources is the way one builds a strong law practice. In fact, I would argue that lawyers whose practices are referral-based are likely to be healthier lawyers than lawyers whose business generation is driven by advertising—or worse—paying for lead generation.
But networking, as a paradigm or a rationale for belonging to an organization, has a somewhat Machiavellian spin to it. When a lawyer networks, the event—the coffee, the lunch, or the committee meeting—is in some sense only a means to an end. And the end is rather self-focused. What will this contact do for me? A network is a web that we use to snare future clients. If lawyers can build a better web without a bar association, they’re gone.
Networking will always play a role in the life of a bar association but the networking paradigm is failing us as an association. Because not all lawyers generate business through referrals from other lawyers, they think their time is better spent building client-snaring webs through other organizations. And with respect purely to generating business, they are probably correct.
The paradigm I prefer is community. When one is participating in and trying to build a community, the means and the end are the same. The means may be similar to networking—particularly good networking, which focuses on meaningful connections rather than handing out business cards—but the focus in a community is on building the relationship for the sake of the relationship. I’m not having lunch with you because the marketing guru at my firm told me I had to have lunch with X number of people per month; I’m having lunch with you because I want to be a part of a larger community. When we build relationships we are giving as well as receiving.
In my church we have a metaphor for the community. We say the community is like an ocean that embraces people and buoys them up when they need it. Most of the time we are part of the ocean. Our role most of the time is to help others. When we face difficulties, we turn to the ocean to support us.
When lawyers are beaten down by the difficulties of practicing law, when they are feeling isolated, they don’t need a network, they need an ocean. Lawyers who are in trouble because they made a mistake need an ocean, not a network. Young lawyers without jobs, hanging out shingles, struggling to figure out how to practice law, don’t so much need a network as they need an ocean.
I realize that some of this is semantics. Good networking and community building may look very similar. Going to lunch or coffee with someone you’re genuinely interested in getting to know serves both ends. But I want to challenge the way you think of the bar association.
A networker looks at an event like a section meeting or the Judges Social or this annual meeting and says “Who will I see at this event? Will it help me generate business in the long run?” When you see yourself as part of a community, you might instead say to yourself “Who might be at this event who needs to see me? Who might need my friendship, my advice, or my mentoring? Who might be suffering? Who might be helped by reconnecting with me?”
Now, I don’t expect you to save a life every time you go to the Bar Benefit or attend a CLE. But I believe that this bar association will thrive if we can recapture a sense of community we had back in the day, when the bar was smaller and 100 lawyers would show up every Tuesday for lunch at the bar association office, just to get together. That sense of community is important if we are ever going to put to rest the perennial hand-wringing over the lack of professionalism and collegiality amongst lawyers.
Our bar has grown since the days of the weekly lunch and our demographics have changed. We can no longer just let people know lunch is available and expect a crowd of lawyers to show up every week. But we will be working this year on providing more ways for lawyers to connect with each other through the bar association in ways that resonate with them.
Other bar associations have experienced tremendous success with affinity groups that are not limited to providing CLEs about the latest changes to the title standards or the Rules of Civil Procedure. Books clubs, running clubs, lawyers who brew their own beer—we are going to try to find ways to foster connections amongst lawyers through the interests they already have. Some of these new groups will launch as early as this fall; see the announcement in this issue (on page 35) and in the weekly e-newsletter.
I am just the 95th in a long line of lawyers who cared enough about our colleagues and the profession to want to become the chief evangelist of the bar association. Whether the HCBA prospers depends not on some clever program I come up with that will cement my place in bar association history, marvelous though that might be, but on whether you will join me in thinking of our association as a community that exists primarily because of how much we value the community itself. I am looking forward to connecting and working with you in the coming year. Thank you.
Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). ↩