'What Were They Thinking?' Is A Rhetorical Question

'What Were They Thinking?' Is A Rhetorical Question<br />
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Legal Ethics
May 2023

'What Were They Thinking?' Is A Rhetorical Question

It's been a while since I've asked, "What were they thinking?" There have been recent examples that almost leave me wordless. But not quite. Have lawyers and judges learned nothing since graduating from law school, entering the real world of practice, and (some of them) ascending to the bench? Do they not care about their reputations? Their licenses? Their judicial robes?

Allison Diercks. If that name is not familiar, it should be as it is a clear example of how an eager young lawyer gets herself into a pack of trouble because she wanted to do what she thought was right. However, she ran smack up against the inviolate nature of the attorney-client privilege.

Diercks is the lawyer who took it upon herself (working at Covington and Burling on document review in the MeToo/CBS/Les Moonves investigation) to contact a New York Times reporter to, essentially, spill the beans on what she had learned about the investigation. She provided critical and previously unknown information to that reporter. Diercks knew even when she was spilling those beans that it was a clear violation of her duty as an attorney, but that knowledge didn't stop her.

What was she thinking? Her license has been lifted for 18 months and reinstatement is conditioned upon her showing fitness to practice. That order was entered in January 2021 and so, by my calculation, she could be eligible for reinstatement later this year. Would any law firm of any size be willing to hire her? Would any client ever trust her to keep client confidences confidential? Would you?

Diercks had a misguided sense of trying to do the right thing as the transcript of her interview with the New York Times reporter indicates. And while that may be a good thing in the abstract, the reality is something different. The bedrock of lawyering is maintaining that attorney-client privilege. We all know (or should know) that it is not ours to waive.

The best line to describe the essence of the privilege is in John LeCarre's novel, "The Constant Gardener": "Where secrets are concerned, compared to me, the grave is a chatterbox."

How about this one? Rachel Rollins has resigned as United States Attorney for Massachusetts after release of two investigations into her conduct while in office. The Office of the Inspector General as well as the US Office of Special Counsel ticked off a litany of misdeeds, not the least of which was lying to investigators. A United States Attorney didn't think it was wrong to lie to investigators about leaking information to Boston newspapers about a political rival of a friend of hers? That was not her only misstep, but perhaps the most egregious.

What is it about the irresistible temptation to leak information and then lie about it? Haven't we gotten past the "I've got a secret and you don't know it" that permeated our childhoods? Think back to childhood (a stretch for some of us more than others) and remember that delicious sense of being in the know when other peeps weren't, those taunts on the playgrounds. Has anything changed since childhood? Do people really think that they won't get caught in lies, that they won't face the consequences of violating their oaths as attorneys?

Why are attorneys so willing to throw their reputations and their careers overboard? And for what? You tell me. What is it like for people to see their careers, their professional reputations in tatters?

Is there anyone, lawyer or nonlawyer, who relishes paying taxes? We would all rather spend the dollars earned on fun things, although everyone probably has their own definition of "fun."

A Connecticut attorney decided that his definition included booze, drugs, gambling, and other hedonistic activities. He was so busy having fun that, guess what? He forgot to pay income taxes of close to $600,000. He also ignored repeated notices from the IRS reminding him to pay up. Oopsie. The IRS nailed him for tax evasion (what a surprise).

Here's one case of judicial shenanigans, just so that lawyers don't feel that I only pick on them. A now-retired Colorado district judge had too much to drink and made repeated sexual overtures to a younger male lawyer at a conference. The lawyer found the judge's propositions unwelcome, but somehow the judge ended up in the attorney's hotel room.

The judge, Lance Timbreza, stipulated, among other things, that he would resign as a judicial officer and that he would be publicly censured.

As the Colorado Commission on Judicial Discipline and Public Censure noted, this incident was not the former judge's first disciplinary rodeo, having been publicly censured for a driving under the influence violation and a previous private censure for what the commission labelled "delay in the performance of his judicial duties."

A perfect example of why substance abuse on the job leads to situations like this one.

And we all know that substance abuse is an issue for legal professionals that is not going away any time soon. Does ChatGPT have a substance abuse problem? I think not.

'What Were They Thinking?' Is A Rhetorical Question
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at
[email protected].