Ethics Counsel on www.OKbar.org

The Three I’d Monster

By Travis Pickens

Lawyers do not go to law school to become criminals. To do so, the thinking would likely have to go something like this: “Here’s the plan: I’ll spend three years studying harder than I ever have, with classes full of students as driven as I am, and spend an enormous amount of money, and likely go into debt, so that I can then study for a couple of months, take the hardest test of my life, and then scramble to get a job working under the most stress I’ve ever known, so that I can then build up a practice and take retainers, so that I can then begin to siphon off profits from the trust account, which by the way is subject to all kinds of restrictions and for which the bank must report any overdraft automatically to the General Counsel’s Office.”

No, my time so far at the bar association has taught me that lawyers most often get into trouble for three reasons, none of which include criminal intent: Ignorance, Issues and Isolation. As support, you may turn to the disciplinary cases reported in the first quarter of this year. Out of the significant disciplinary cases decided through mid April of this year, more than half involved facts related to ignorance, stress, anxiety, isolation, unresponsiveness, anger and/or substance abuse. I suspect that these factors were also involved somehow in the other cases as well, although not reported.

In seminars I refer to this troublesome trio of issues as the “Three I’d Monster”:

Ignorance. Lawyers simply do not know the Oklahoma Rules of Professional Conduct (Rules) well enough. I usually see two groups: young solo practitioners who do not work closely with other lawyers and lack the real-world experience to know how the Rules should be applied. They lack access to experienced mentors and agree to do work for the clients most likely to complain should they misstep. They can also be intimidated by older clients and make bad decisions.

The other group I often see are more experienced lawyers who have built up a busy practice but have not studied the Rules and related cases for a long time. They tend to have plenty of friends that are lawyers, but they tend to be very much like themselves, middle-to-late-aged and relying on their memory of their “Professional Responsibility” course from 20 years ago. These lawyers tend to attempt to manage the Rules by intuition, a flawed approach, although well intended.

Issues. The lawyer has an “issue” that is preventing them from being effective and complying with the Rules. The issues could be depression, drugs, alcohol, over-anxiety, and/or the rest. Again, this lawyer is not malintentioned, this lawyer has simply lost control, or failed to manage, an emotion, condition, disease, or need, that has manifested itself into some sort of mental health or substance abuse issue. This issue crowds out and overwhelms the lawyer’s focus on much else, including their clients’ matters and/or compliance with the Rules. A minority of these lawyers manage to function at a reduced, but acceptable level. The others do not. They slowly descend into reduced hours, a lack of diligence and responsiveness, and sometimes, into outright bad acting.

Isolation. This last “I” unsurprisingly is often linked with the other two. They can all interrelate. The new solos described in paragraph one are often members of this category. They may be practicing in a new city or town, or they may simply be a bit isolated by a shy or quirky personality.

Lawyers with issues often end up as isolated solo practitioners even if they did not start out that way because jobs with companies, agencies and firms bring a certain level of accountability that at some point typically identifies an impacted employee. Sometimes, these lawyers have a uniquely autonomous position, where their interaction is limited with other employees, allowing them to be relatively isolated even though physically surrounded by other people.

As a profession, if we are able to slay or disable the “Three I’d Monster,” future disciplinary complaints and prosecutions will be vastly reduced.

Originally published in the Oklahoma Bar Journal -- May.19, 2012 -- Volume 83, No. 14
Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org