Saturday, January 10, 2009


By : Nathaniel L. Billingforth, Esq., Order of the Coif; Equity Partner, Irkland & Mellish, LLP; 2007 Am Law Biller Rank #11 in the United States

Every licensed attorney must pass the Multistate Professional Responsibility Examination (MPRE®). Success in this examination reflects an attorney’s knowledge of all relevant rules contained within the American Bar Association’s (ABA) Model Rules of Professional Conduct (MRPC) and applicable State codes. When an attorney passes the examination, he certifies that he is ethical. Once he is ethical, he may practice law without restriction, provided that he pays his bar dues and does not break any rules. Lawyers secure the rule of law in America. They help business function. Through zealous representation, they vindicate the rights of successful organizations all over the country. Without them, companies would not be as successful as they are. In a word, good lawyers are essential.

Yet the American Bar Association insults successful lawyers with unrealistic demands. In its preamble to the Model Rules of Professional Conduct, the ABA notes: “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.” MRPC Preamble, Clause 9.

I beg your pardon? What conflict? Is the ABA insinuating that lawyers who wish to “earn a satisfactory living” somehow do not serve their clients? Are they saying we are not “ethical people” because we want to earn money? This is utter nonsense. We here at Irkland & Mellish love earning money. And we serve our clients twice as hard in order to win. Our clients love us because we win for them, and when we win, they win. We make everyone happy, including ourselves. This does not make us “unethical.” We already passed the MPRE and the State Bar Board certified us all as having the “requisite character and fitness to practice law.” You bet your ass we have character. Our character wins cases. We are successful. Just look at me. In 2007, I was AM Law’s #11 biller in the United States. I “earned a satisfactory living” while serving the client with all my heart. I am insulted that the ABA thinks I was somehow “unethical” simply because I wanted to earn money from winning antitrust suits for pharmaceutical conglomerates. I simply did what I was trained to do: To win at all costs for the client.

But the ABA goes further. It says: “A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.” MPRC Preamble, Clause 7. Public service? This is not what we do. We sell private services to private clients. Our clients include major banks, pharmaceutical manufacturers, film production houses and successful inventors. These people do not want their secrets known. And they certainly do not want us to represent them in a way that holds out their practices for the public to see. This is private business. Our clients make money in private; there is nothing public about it. The government does not pay our clients, and it does not pay us. Why, then, should we strive to “exemplify ideals of public service?” What ideals? Private lawyers do not serve the public; they serve private clients who engage in private business for private profit. They do not have to listen to government, nor do they owe any duties to the public. Successful people do not want the public to peek into their finances. As attorneys, we have a duty to protect our clients’ secrets, and we do. We are not public servants. We are private advocates who resort to anything to protect our private clients. Public service plays no role in our daily practice. When we show up to work, we think about making private profit, not “improving the law” or “serving ideals of public service.” In short, the ABA is completely out of touch with reality here.

You may think that the ABA has said all it could on these matters. Wrong. It makes even more ludicrous statements. Consider this one: “[A]ll lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” MRPC Preamble, Clause 6. Excuse me? You want me to waste precious firm resources representing a beggar who says the police beat him? Pardon my francais, but give me a fucking break! What planet are you from? Law firms do not do things for free. Our services are billed on an hourly basis, beginning at $325 per hour for associates, up to $1,275 per hour for senior partners. We serve private clients who can afford to pay for our services, not uninfluential minorities and small-time hoodlums trying to get out of jail. We operate our firms like businesses; we avoid wasteful expenses. The ABA cannot reasonably suggest that we set aside our lawyers’ time on unprofitable matters. That is like asking a factory to remain open with only 50% of the machines running. It makes no economic sense.

True, there are firms that take on pro bono cases from time to time. But they do not do this because they care about poor people. They do it because they use it as a publicity stunt to attract new paying clients. After all, it looks fantastic when you can say in a newsletter: “Our altruistic young associate, Ms. Wang Fu Min (Harvard Law summa cum laude), dedicated 100 hours of her time writing an appellate brief for an indigent black death row inmate in Texas.” A client could say: “What selfless lawyers they have at that firm. Let’s hire them to file that patent application for us.” Still, this does not happen often. And firms that spend time on “freebies” are not good businesses. They will never make the AM Law top billing list. Here at Irkland & Mellish, we do not waste our time on cases that yield no fruit. The ABA says that lawyers “should strive to ensure equal access to the legal system.” What for? If you can’t afford a lawyer, that’s your problem. Securing “equal access” is not our job. We even venture to say that “equal access” is not an American value, either. Equal access is not the reason we get up and work for success each morning. We get up and work for success because we want unequal access to wealth. It would defeat the whole purpose if everyone had an equal claim to wealth—and the law exists to protect people like us, not people like them.

Perplexingly, the ABA places incredible importance on this issue. In a separate rule, they say: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” MRPC 6.1. We note the words “should” and “aspire” in this rule. “Should” does not mean “must.” “Aspire” means “try to,” not “do it.” These are not commands; they are recommendations. You do not have to follow recommendations. We will leave it at that. No thank you, ABA. We decline your recommendation to waste firm resources on quixotic adventures for unimportant clients.

But the ABA just will not leave us alone. Irkland & Mellish practices in all 50 States, but we do most of our business in Illinois. As if the ABA did not interfere enough, the Illinois Supreme Court has its own meddlesome “ethics” rules. Wisely, Illinois does not impose even an “aspirational” duty to waste firm resources on hobos and petty criminals. But it nonetheless needles lawyers who do not “volunteer their time” to help the poor. In its preamble to the Illinois Professional Code, the Illinois Supreme Court writes about pro bono service: “An individual lawyer’s efforts in these areas is evidence of the lawyer’s good character and fitness to practice law.”

When will these idiots realize that lawyers are not saints? How dare the Illinois Supreme Court suggest that lawyers do not have “good character and fitness” simply because they refuse to refuse to handle worthless cases? What is this, church? We are not a charity; we are a major Chicago law firm with major industrial clients. We do not have the time, resources or patience to represent penniless black guys who say the police falsely arrested them for something they did not do. How does this indicate “bad character?” We are not “good characters” because we refuse to make brainless economic decisions? If that reasoning were applied to business across America, there would not be a single “good character” to be found from coast to coast. The Illinois Supreme Court has gone too far. After all, we all passed the MPRE and the Bar Board certified us as having “good character and fitness” after we passed the Bar Exam. The Illinois Supreme Court cannot disparage our “good character” simply because we refuse to make bad business choices. Practicing law is about profit, not public service. The Illinois Supreme Court would be wise to calmly remove its head from its rectum in order to see that truth.

It saddens us to see that the ABA and Illinois Supreme Court know so very little about lawyers. In fact, the Illinois Supreme Court actually writes in its Ethics Preamble: “Legal services are not a commodity. Rather, they are the result of the efforts, training, judgment and experience of the members of a learned profession.” We beg strongly to differ. Legal services are undoubtedly a “commodity.” We define the word: “Something useful that can be turned to commercial or other advantage.” The American Heritage Dictionary of the English Language, 2006 Ed. While we do not deny that we are a “learned profession,” we disagree that legal services are not a “commodity.” Our services are “useful” and we turn them to “commercial advantage.” We learned our skills, people need them, and we get serious money from them. That fits the definition perfectly. The Illinois Supreme Court likely understood the word “commodity” to refer to easily interchangeable, cheap, street-level goods. While the word “commodity” embraces that concept, there is no “dignity” qualification. Selling legal services is no different than selling apples, carburetors, syringes or massage parlor services. These are all “useful things” that can be turned to “commercial advantage.” We may have had to learn some fancy words and phrases before we could sell our crafts, but in the end it’s all the same: A way to make money.

In sum, the ABA and Illinois Supreme Court grossly misunderstand the legal profession. They insult us with unrealistic demands and confuse business with principle. We believe the ABA should reevaluate its “ethics rules” in light of current professional practice. No one practices law to be a good person; people practice law to buy nice homes and “earn a respectable living.” If people want to soothe their souls, they can join the clergy. Here at Irkland & Mellish, we pride ourselves on the fact that our lawyers know who they are: Businessmen with accounts to service and annual billing quotas to satisfy. We passed all the tests and we have all the certificates we need to ply our trade. Nothing the ABA says can take away our livelihood, no matter what moral judgment it makes about our culture of success.

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