How To Give Bad Advice

ENTRE NOUS

BY CLAUDE DUCLOUX

Some things just come naturally to many of us. But that doesn’t mean we’ll do that thing well. How many singers whose warbling frightens cats and makes babies cry are convinced they should have been professional vocalists? How many lawyers think that the path to fame and glory is simply to sound smart, guess at answers, and lie when necessary? Quite a few, unfortunately.

Of course, every profession has its deceivers and con artists, taking advantage of customers’ lack of knowledge or experience. Opportunists like this recent expert advising me.

As you know, the “Snow-pocalypse” last February had disastrous effects on our plants and trees. When it appeared the tips of many of my oak trees were dead, I waited several months, and then hired an expensive tree service. “Bob’s” company charged me a rather breathtaking price to trim my trees in July, but he failed to take out many dead limbs, and I brought him back to discuss. The excuses I received for the crew’s failure to prune the lofty but clearly dead limbs off were almost like a Mel Brooks skit:

TREE GUY: “Sir, I have to consider soil compaction, and the minerals available in subsoil strata.”

ME: “Really, you need to consider subsoil to cut a dead branch 30 feet up?”

TREE GUY: “Well, you don’t want to stress the phytophthora or the fusarium, do you?”

ME: “Uh … aren’t those actually two root fungi?”

TREE GUY: “How’d you know that?”

ME: “Prune the dead branches, Bob.”

Sadly, Bob didn’t know how many grievances I’ve handled— and that I’ve known Dicky Grigg so long—that I’m immune to most categories of B.S. But I had really good training, too.

As most of you know, I started my career as a grievance attorney for the State Bar back in 1978. I was one of four so-called “Assistant General Counsel” for that office. The General Counsel’s office, then under Davis Grant, had all the typical duties of a true general counsel—contract review, advising the board and departments on a multitude of business and legislative issues, but we also operated the grievance system, advising 30 different grievance committees, and handling disciplinary litigation (always filed in the home county of the accused lawyer). My experiences in that area of law have now been part of my practice for over 40 years.

Like a good medical diagnostician, experienced disciplinary counsel can trace problems to several key areas, and you don’t need to be a forensic psychologist to connect these causes to their effects.

Needless to say, every profession has bad apples, and word gets around to others in that trade. If your mechanic needs to “adjust the points” on an electronic ignition, stay away. And some professions do our dirty work. A plumber might have to “clear the lines” when outgoing effluent piles up, and sadly, disciplinary counsel sees exactly the same “stuff.” But our effluent usually is the toxic result of bad advice.

Like a good medical diagnostician, experienced disciplinary counsel can trace problems to several key areas, and you don’t need to be a forensic psychologist to connect these causes to their effects. Here’s a primer on how to give bad advice.

FIRST: ALWAYS BE THINKING ABOUT THE FEE

Too many lawyers do not see a client walking in the door, but rather, a “piece of business.” How do I goad this “mark” into emptying his pockets? Clearly, it’s easier with family law clients, who are often frightened and stressed.

This constant gambit to harvest more fees leads to this classic advice:

“You got here just in time. There’s no time to waste, and we need to protect your assets, and secure your rights. By filing first, we have the advantage. Sign here, and we take cash, check, or credit. And you’ll need to refresh this retainer every 72 hours.” If the client asks how much it will cost, have reliable standby answers. “As much as it takes to secure justice! That’s what you deserve.”

It doesn’t matter that the client only hired you for a traffic ticket.

SECOND: TREAT THE CLIENT LIKE AN IDIOT

“You know, Ms. Jones, we need a complete audit of accounts, and to depose everyone you have spoken to since the Reagan administration. Can you give us a list?” If she asks, “Why?” you say, “We need to be fully prepared. And I’ll need to upgrade my computer to handle all your records, too.” When she asks, “Uh, what records?” you say, “We’re required by law nowadays to keep metadata. It has to be kept in a magnesium separator. And datestamped. Just leave that to me.”

THIRD: TREAT THE DISCIPLINARY RULES AS MERE SUGGESTIONS

When confronted by a motion to disqualify you because you represented the opposing party in a related matter, spend 25 hours drafting a vigorous response (on the client’s nickel), complete with cases from an out-of-state court, defending your right to engage in conflicts. Oh, and don’t forget to keep the client in the dark until the judge rules against you. He shouldn’t worry about this, after all.

Duty? Shmooty. I’m way too busy to answer your call.

The oldest daily lies bad lawyers tell relate to how busy they are. Now, most clients are aware that since March 2020, that old standby excuse, that “he/she is in court today,” is a lie. You should at least change it to, “He’s on a Zoom.” Yet, the number one grievance in America is, “My lawyer won’t communicate with me.” Just remember that communication is the most important word in the practice of law. Doing it proactively and honestly makes you a better lawyer. Using an excuse is temporary, and only digs you into a deeper hole.

FIFTH: BLAME THE JUDGE, THE OTHER ATTORNEY, AND YOUR SECRETARY

When you’ve pursued a case strategy which predictably fails, never take responsibility. Just go ahead and blame the judge. I’m sure (a) it will never get back to her; and (b) she won’t mind. And besides, you always have that dastardly opposing counsel to dump on. And your paralegal was frighteningly slow transcribing that brief you dictated 20 minutes before the filing deadline. Explain to your clients how they should all be punished.

FINALLY: MAKE SURE TO GO INTO AREAS OF LAW THAT YOU’RE INCOMPETENT TO HANDLE

While learning new areas of law is admirable and appropriate, don’t dive in without a lifeguard. If you do, you’ll end up giving advice like this:

“Sure, I think we can charge 25% APR on that personal promissory note.”

“My research [none] shows you don’t have to pay taxes on that income. And the IRS won’t ever find out anyway.”

“I’m pretty sure the statute of limitations on contract is… like… five years or something. We've still got time.”

“This contract is under the law of Louisiana. It’s probably just like Texas.”

“Here’s an email of all your passwords, in case you forgot.”

So, be a smart lawyer. Give honest advice. And, of course, make sure your magnesium separator is up to date. AUSTINLAWYER

–Keep the faith. AL AL