David Giacalone in a post called Associate Disciplined for Remaining Silent covers a new Connecticut Supreme Court decision that upheld a reprimand for a junior attorney who remained silent in the presence of falsehoods by his senior lawyer, where the silence deceived a judge. As you might expect, the case had some unique facts, which are discussed in the comment to David’s original post. The most salient fact might well be that the senior lawyer told the judge what the junior lawyer had told the senior lawyer, creating a situation where the junior lawyer would definitely know there was a misstatement. It wasn’t a case where the junior lawyer heard a senior lawyer say, “There’s a new case that I didn’t have the time to get yet that addresses this exact issue and rules in my favor.”
I have to admit that the following quote from a news reporter got a chuckle from me because of purely theoretical approach it takes:
“Even if it enrages the senior partner or undermines the argument, a lawyer is duty-bound to speak up and prevent a judge from getting the wrong impression.”
David says: “I can already hear the wailing of bleeding hearts and enablers, who say such a rule is “unfair” to the poor, powerless associate.” He’s right that there comes a time where you have to take a stand and that once you bend on small things it becomes easier to justify bending on bigger things, but it’s a tough spot to find yourself in early in your career when you are with a senior lawyer in front of a judge. Given the idealized and theoretical notions of Law that you learn in law school, you might well be more speechless than misleadingly silent.
Since most lawyers who read this story will probably think that “yeah, he speaks up and he gets fired,” I want to move from the topic of the rule to the topic of the atmosphere for associates today.
It’s not the rule that’s unfair to associates, it’s the fact that it adds another worry for associates who are currently living in a system where they walk on eggshells out of fear of being fired, are caught in the crossfire of crushing billable hours minimums and demands to “keep your hours on this project as low as you can,” refuse even to ask permission to attend and be reimbursed for continuing legal education, bar and other volunteer activities, and question what they’ve gotten themselves into. What’s worse is that (1) clients hate to pay for the time attorneys spend talking to each other and (2) minimum billable requirements on partners have cut into the time a partner will spend training and preparing associates for cases. As a result, litigation associates complain that they rarely are given the big picture view of a case and there work is strictly limited to the one issue in front of them. They might be with a partner who made a blatant misstatement and have no idea whatsoever that anything was wrong, but in hindsight, they’d look pretty bad.
I’ve said many times that the current methods big law firms use with associates are grinding up some of the brightest and most capable young lawyers I’ve seen. There have to be better ways.
So, for anyone who is looking for an interesting survey/study to do, tracking the rate of departures of litigation associates from Connecticut law firms in 2004 might be a good choice of topic.