Sunday, January 4, 2009



By : Orwell F. Schandler, Esq., Attorney at Law, Schandler & Scruple, P.C., Providing Counsel to Business, Financial and Investment Capital Clients Worldwide

In today’s legal market, attorneys need to keep their clients. Law students entering the profession today struggle to find employment for a simple reason: Law firms are struggling to keep the doors open. They do not have the resources, money or time to hire fresh-faced idealists. Law is business, and time is money. In the law business, we do not have time to waste. We need to make every hour and every second count, because our competitors are all too happy to pick up our slack.

Competitors are everywhere. If we do not aggressively cultivate new business, a competitor will seize our clients and make money we should have made. At Schandler & Scruple, we built our reputation on aggressive client acquisition and a no-nonsense approach to winning. We get clients however we can; and once we get them, we win. Results are everything. When we win, we get fees, and that makes everyone happy. But we do not play around. We know that if we let our guard down for even a second, some ruthless up-and-comer will snatch our clients right out from under us. And if that happens, our bonuses will not be as big as they were last year. We are determined to avoid that fate.

Law is no different than any other business. We have a simple mission: To exceed costs with profits. We have many costs. We have to pay rent for our office facilities, we have to pay employees, we have to pay for office supplies and we have to pay court filing fees. We have to lay out money for expert witnesses and transportation. Sure, we ultimately bill the client for these expenses, but in the meantime we need money in our account to keep the place running. We get a steady fee stream from our clients, but it is a constant battle to maintain healthy income. Without constantly working, we do not get the bonuses we deserve. Bonuses give us our homes, cars and vacations. We will be damned if we make a smaller bonus this year than we did last year. Put simply, we operate a business like any other. And we have the same goal: To make as much money as possible while spending as little money as possible.

Bar associations and professional licensing boards make life difficult for lawyers and law firms. They only allow us to keep working if we ascribe to so-called “ethics rules.” This is a major handicap for law firms. Unlike other businesses, these presumptuous rule-makers burden us with “do’s” and “don’ts” about the way we do our jobs. Bankers can make money however they want. Yet lawyers have to follow these brainless “ethics rules.” They forbid us from making money in the easiest, most direct way possible. Furthermore, they restrict our ability to represent certain clients, harming our ability to obtain new business. They even bar us from taking jobs with certain employers because we know their secrets. In America, these restrictions should appall any wise businessman, and they certainly appall us. That is why we rarely follow them. Unsuccessful lawyers fail because they follow the “ethics rules.” We refuse to be unsuccessful.

Who has time for “ethics rules?” I have a business to run, and I will be damned if some uppity academic theorist tells me I can’t represent a client now against whom I once had a case. In America, 97% of all businesses fail. The 3% that succeed only survive because their leaders adopt any means necessary to stay financially secure. Yet under the “ethics rules,” lawyers are not allowed to pursue the means necessary to win. Any business faces a hard road in America; lawyers have it even harder. I worked hard for my money and my success. I do not allow “ethics” to control my business. Winning is everything; and you can’t win if you can’t pull every trick in the book. You wouldn’t let your star quarterback play a clutch game with his ankles tied together, would you? Of course not. Yet this is precisely what “ethics rules” do to lawyers: They tie our ankles before the game.

“Ethics rules” have no role in our profession. True, clients want to feel that lawyers adhere to a “high moral standard” when they practice law. But they would much rather have advocates who pull out all the stops to win than soft-hearted weaklings who refuse to fight hard for “ethical” reasons. Life is not fair, and neither is legal practice. Fairness is not our goal; winning is. “Ethics rules” attempt to bring fairness to an inherently unfair, exploitive enterprise. When money is on the line, we will call our opponents directly, even if they have lawyers. We will approach people in-person to solicit them for business. We will cajole them into settling, even if we know they have excellent cases. We will spy on people. We will lie under oath. We will stretch the truth beyond all recognition. We will destroy evidence that will hurt our cases. We will bill on two cases at the same time for double pay. We will take money from client accounts to pay our mortgages. And by God, we will represent both sides of a legal dispute if it will earn us more money. “Ethics rules” tie our hands in a life-or-death struggle for financial survival. In such a struggle, you should not fight fairly. If you need to use low blows and backstabs to win, by all means use them.

Yes, we studied the Model Rules of Professional Conduct. We even took the Multistate Professional Responsibility Exam (MPRE®). We know the “do’s” and “don’ts.” But we don’t give a shit. Lawyers can learn any rule and any exception. Lawyers can take standardized tests better than anyone. If we know the rules, we also learn how to avoid them. That is what we do. It is one thing to violate “ethics rules.” It is quite another to prove a violation. As lawyers, we know how to break rules without anyone ever knowing. We also know how to manipulate evidence so that proof is impossible. And if someone calls us on a violation, we always have an explanation—supported by text—to bail ourselves out. After all, we recognize that the “ethics rules” have nothing to do with “making us into good people with a good conscience.” They constitute nothing but another rulebook governing behavior. It is easy to conform behavior to a rulebook. If anything, we lawyers know how to comply with rules in letter, yet completely ignore their spirit. That is what we do.

Anyone who practices law knows that winning is everything. Without winning, you don’t pay the rent and you don’t get the bonus. “Ethics rules” make it harder to win by restricting us from acting in the most economically fruitful way possible. Thus, practicing lawyers should be hostile to ethics. Ethics cut in on our livelihood. What else is there in life? Conscience? Conscience does not win cases or make money. Conscience does not generate larger bonuses or help you make partner. Conscience is no way to run a business. Business is about winning. And to win, you need to have the cunning and flexibility to employ any means necessary to reach your goals.

We refuse to lose business for ethics. In a word, we wipe our legally-trained behinds with “ethics books.” As long as we do not get caught, we will violate them at will. Everyone else is doing it. There is nothing “special” about lawyers. We are businessmen like any other, and that is exactly how we act. Sure, we might have learned about “truth, justice and right” in law school. But those concepts never helped us find jobs, get promoted or win cases. In fact, it was always the most unscrupulous man who seemed to win, so we followed his lead. For lawyers, seeming is more important than being. As long as we appear to follow the “ethics rules” on paper, we can get away with anything. After all, we passed the ethics tests. We even certify that we attend “continuing legal education” courses on “ethics training” every year. Doesn’t that make it seem that we are ethical? Nothing more is required.

Now, would you excuse me? I don’t have any more time to waste on this ethics drivel. I have a business to run. I will not sacrifice my year-end bonus for ethics. Ever.

No comments: