Sometimes the smartest thing a lawyer can say is . . . nothing at all.
There are a lot of rules which we as lawyers have to live by, making our lives generally more complicated than those of your average realtor, journalist, or fried-chicken franchisee. Unlike the three randomly selected professions above, we risk a lot more than a rap on our knuckles if we cross the border with an undeclared Persian carpet, or we get a contractor to build an addition on our house in exchange for free chicken, or we play fast and loose with the truth. We have rules that govern how we must uphold the law, rules on how we are to deal with clients, and even rules on how we deal with the rules. We have rules on everything, and not living by the rules can mean we don’t get to stay in this profession anymore.
Arguably, one of the more important rules that we should be aware of isn’t in any professional conduct handbook, or any other book on lawyering that I know. It’s less important than, say, stealing from a client, breaching an undertaking, or making a sexual advance to a partner of the New York law firm you’re about to merge with, but more important than wearing the wrong shoes in court or typing an affidavit in comic sans font. It can be expressed thusly: Don’t act like a blithering idiot. Don’t say something stupid. And don’t act like a loony.
I have to say it’s rare in my practice to hear a lawyer say something so profoundly silly, you want to press the buzzer and shout out “spot the loony” for all the room to hear, in homage to the old Monty Python skit. I suspect our professional conduct rules prevent us from shouting “spot the loony” out loud in a closing or in court, but I’m not sure it prevents us from smacking an imaginary buzzer and saying “bzzzzt” at appropriate moments in our minds.
Sure, some of us look silly because, on occasion, we’ve forgotten something or there’s a typo in the document or our assistant moved offices a few weeks back and something was overlooked. And sometimes we all have to take awkward positions that, with the benefit of hindsight, may seem ridiculous.
And sometimes, opposing counsel may take unreasonable positions either because they are instructed to, or because they are difficult, pompous, and unreasonable people anyway — and this is why the client hired them in the first place.
But there is a difference between irascibility and idiocy, just like there is a difference between unreasonableness and lunacy. I have found that over 23 years of practise, most lawyers I have dealt with have bent over backwards not to look or sound idiotic, even though some of them have been paid to take tough and even unreasonable positions. One is judged by what one says, and for many of us, we are acutely aware of the consequences of foot-in-mouth disease.
But not all of us, I suppose. One event stands out in my long memory. The circumstances have been obfuscated in the interest of professional courtesy.
A few years back, I heard a group of lawyers discuss “judges” in front of 300 or so people at a conference somewhere in the English Speaking World. The audience had some lawyers in it, but it was mostly comprised of entrepreneurs, managers, and other businesspersons. Although most comments were unremarkable and thus unmemorable, one lawyer on the panel leaned toward the mike and said, “Judges are appointed only because they donated to the right political party.”
He or she went on, with both feet firmly in his/her mouth (without an ounce of embarrassment), “And face it, they’re only judges because they can’t practise law.”
Everyone in the room who was sleeping immediately woke up. Those who were awake said to the lawyer in the next seat, “Did he/she say what I thought he/she said?” Other lawyers in the audience (many of whom later admitted to me they were relatives, classmates, or spouses of judges) collectively gasped. Lawyers on the panel fought tooth and nail over the microphone to disavow the comments. Babies began to cry. Dogs barked. Ominous organ music played in the background. Fog rolled into the room. Horses brayed in the distance. Sparrows fell from their nests. Flowers in bloom wilted. Dairy cows miles away stopped giving milk.
But no one in the audience had the gumption to yell “spot the loony.” Maybe when one of us says something totally stupid, we should. You know, for the good of the profession.
Vancouver franchise lawyer Tony Wilson practises from Boughton Law Corp. in Vancouver.