Ethics Lessons from the
Cockpit
I flew to Lincoln last Friday to visit my daughter Tammy and
take in the Big 10 opener between the Huskers and Badgers.
It was a thrilling game – made more so by
Nebraska depositing the pigskin on the turf on 2 of its first five plays from
scrimmage – and a great fall weekend overall.
Saturday morning we sampled scones from the Farmer’s Market at Lincoln’s
historic
Haymarket over coffee at
The Mill.
Sunday we flew up to
Barnstormers
restaurant in Norfolk for lunch, and on the way back found the
Camp
Fontanelle corn maze.
Tuesday morning as I was pre-flighting my plane for the
return to Boulder and work, I wondered how many of the lessons and pithy proverbs
I have learned as a pilot translate to legal ethics and the practice of
law.
The legal profession is not without
its own collection of colorful maxims.
I
am particularly fond of the one attributed to Sol Wachtler, former chief judge
of New York's court of appeals, that a prosecutor can get a grand jury to
indict a ham sandwich.
I have no doubt
of Sol’s wisdom, having witnessed some rather suspicious pork in my own hydrator
on occasion.
(For lovers of legal etymology
and phrase origins I recommend
Law Talk: The Unknown Stories Behind
Familiar Legal Expressions.)
But compared with the piloting world, the legal lexicon is
positively bereft of adages in the area of risk management.
Piloting literature is sprinkled with such gems
as “There are old pilots and bold pilots, but no old bold pilots,” and a
personal favorite, “’Tis better to be on ground wishing self in sky, than in
sky wishing self on ground.
(For my
flying friends
Slipping the Surly Bonds: Great Quotations
on Flight is a fabulous
collection of such sayings.)
So, with
three-plus hours in the sky to ruminate on the subject, I used the time, my
knee-board, and the back of my KLNK airport information print-out to outline this
blog: some piloting wisdom and proverbs I think have value for my legal brethren
in managing professional risk.
Don’t Do Nuttin’ Stupid
When I bought my current plane in 2000, the interior was
upholstered in what I called
Nouveau
Navaho, and the placarding would have made an FAA ramp examiner LOL.
It did, however, have one of the best warning
placards I have ever seen, posted directly below the directional gyro: “Don’t
Do Nuttin’ Stupid.”
If Woody Allen is
correct that 80% of life is just showing up, heeding this admonition ought to keep
lawyers well below the disciplinary regulators’ radar.
Still, notwithstanding its commendable pith,
it lacks a bit in specificity.
Eric’s Three Rules for Safe Flying
Offering more detailed guidance to lawyers are three basic
rules for safe flying espoused by one of my favorite flight instructors, Eric
Armstrong:
- Don’t crash
- Don’t do anything that calls attention to
yourself, and
- The chicken wins
Rule One: Don’t Crash
On one level, the translation of Eric’s first rule to
lawyering is pretty basic: don’t violate a Rule of Professional Conduct and
don’t commit malpractice, i.e., Don’t
Do Nuttin’ Stupid. Drilling down a bit
further into some of the reasons
pilots crash, reveals deeper lessons for lawyers in Rule One.
A significant cause of General Aviation (GA) fatalities is
weather – particularly when a pilot trained and licensed only for flight under VFR
(Visual Flight Rules) continues into the teeth of deteriorating conditions requiring
an IFR (Instrument Flight Rules) rating and IFR-equipped aircraft.
Such folly frequently leads to what is known
in aviation parlance as CFIT – Controlled Flight into Terrain, in which a pilot
flies a perfectly good, fully-functioning aircraft in the
Cumulus Granite because he can’t see and has lost situational
awareness.
This type of accident is often induced by “get-there-itis,” a frequently fatal condition
in which the pilot feels compelled to reach a destination now, when waiting a day, or even a few hours, would have avoided
the weather and fatality. An essential part
of primary flight training is learning to make a sound “Go /No Go Decision.” It is a lesson that must be constantly
practiced and perfected over one’s flying career. If mastered, it may allow others to someday
scatter the pilot’s ashes from the sky; if not, the pilot may end up doing the
job himself.
Still, good and careful pilots can be surprised by rapidly
changing conditions. In such instances,
remembering there are options – such as landing the plane and waiting out the
adverse weather – can avert catastrophe.
The “live-saving (180 degree) turn” is another smart option to
continuing flight into instrument conditions.
Another leading cause of GA fatalities is the existence of a
skills gap.
That is, whether through
lack of training, practice or innate inability, a dangerous or fatal gap exists
between the skill set required to safely complete a flight and that possessed
on a particular flight by the pilot.
The
pilot may, at one time, have possessed the training and ability necessary to
safely complete a flight, but on the occasion in question does not.
External factors, such as illness or stress,
or innate character flaws such as fatalism or cockiness, can erode the safety
margin between skills required and the skills needed for the particular flight,
thus creating a skills gap even in a well-trained and currently proficient
pilot.
What does all this have to do with
safe lawyering? Plenty. Particularly in this economy where there is
tremendous external pressure to originate clients, understanding one’s skills
and limitations is critically important to one’s professional health and
financial wellbeing. Like the pilot who
succumbs to get-there-itis, the
ability to exercise professional judgment in making a Go /No Go Decision regarding
whether to take or continue with a case is vital to professional survival.
In evaluating a case a lawyer must
frequently perform that most difficult of maneuvers: detaching oneself from
one’s wallet. Is the case fundamentally
sound? Is the client emotionally stable?
Is the lawyer being pressured to take on a case out of financial necessity or by
external pressure from a client who, while eager for legal redress, is
incapable of evaluating the potential legal storms which may lie ahead?
If a case is legally and factually
sound, does the lawyer have the skill set necessary to take it on?
If not, can requisite skills be obtained
through training or study?
Associating
with counsel who has the necessary training and skill is always an option to
avoid disaster.
You may recall that John
Kennedy, Jr.’s flight instructor offered to fly with him on his
fatal
flight to Martha’s Vineyard, a flight into instrument conditions of haze
and gathering darkness that John, despite some instrument training, was not competent
or rated to make.
John declined, saying “he
wanted to do it alone.”
The price of
that hubris, or simple bad judgment, was not only his life, but also that of
his wife, Carolyn, and sister-in-law, Lauren Bessette.
Fatal
Distractions
Another consideration in making a
prudent Go / No Go case decision is, even if the case is sound and the attorney
has the proper training and skill to successfully prosecute it, can the client
afford the lawyer’s efforts? A popular flying
aphorism goes “the three most worthless things in flying are altitude above
you, runway behind you, and air in the fuel tanks.” Translated for the practice of law, one might
include “a retainer left in the client’s bank account.”
Perfectly sound aircraft are
regularly brought down by an otherwise harmless distraction which, because of lack
of training or discipline, sinks the pilot’s skill level below that required
for safe flight.
Colorado lawyers of a
certain vintage will recall the
fatal
1976 flight of Don R. Evans, a partner of the Denver firm Yegge, Hall and
Evans.
Don, who had been attending his
firm’s annual retreat in Steamboat Springs, departed Sunday in a Piper Aztec
with his wife and four others to return to Denver.
According to the
NTSB
investigation report the weather was clear and visibility unlimited when
the aft cargo door popped open during takeoff.
The attention of an experienced instrument-rated pilot, with 4,686 hours
in his logbook, including 499 in the type of aircraft he was flying, was
diverted by this distraction in to the point where he failed to maintain flying
speed.
The Aztec stall-spun to the
ground, slamming into two propane fuel storage tanks, incinerating all aboard.
An open cargo or passenger door makes a
lot of noise, and is a
bona fide distraction, but will not, by
itself, bring down a Piper Aztec.
Basic primary
flight training instructs that a pilot-in-command must ignore the distraction,
fly the airplane, and land as soon as practicable to fix it (it is virtually
impossible to close a door in flight).
Any deviation from this standard operating procedure can be fatal, as it
was for Don Evans, his wife and colleagues.
An attorney who discovers himself
up to his neck in litigation for a client who is even more deeply underwater in
his financial responsibilities to pay the legal freight faces a serious
distraction. A small legal practice with
an all-consuming case in this posture poses a genuine risk of distraction to
the point of disengagement (as opposed to withdrawal) by the lawyer-in-command which
is dangerous to both himself and his client.
Insisting on a retainer adequate to complete the legal mission is not to
be dismissed as greed; it is a reality check for the both lawyer and
client. Just as a pilot must never undertake
flight with less fuel than necessary to complete it (plus the FAA-mandated safety
reserve), if a client is unable or unwilling to provide a retainer adequate for
his cause, the case should not undertaken or, subject to leave of the court, the
lawyer should withdraw.
If the lawyer makes a poor Go / No
Go decision, or if unforeseen headwinds or changed conditions arise, the lawyer
must not succumb to get-there-itis. Options, including associating with more
experienced counsel and withdrawal from representation, are always
available. Circumstances can change
without warning despite careful planning.
However, continuing legal flight into discovered adverse conditions is
inexcusable. Above all, the attorney
should not allow inexperience, hubris, or other outside forces to erode the
safety margin to the point where the attorney puts not only himself, but his
client, in peril.
Rule Two: Don’t Call Attention to Yourself
Eric’s Second Rule was illustrated
on a training flight we took to Platte Valley Airport one winter day. It had snowed earlier in the week and little
wispy fingers of snow lay across 18V’s runway.
I had been doing all the flying to that point, and thought it only fair to
give Eric a chance to shoot a touch-and-go.
He took the controls, executed a textbook approach, and touched down
lightly on the runway. There things got
interesting. Instead of the anticipated
spray of powdery snow we quickly discovered that what we had both thought were
snowy wisps were, in fact, icy berms.
Bam! We hit the first one.
Bam! The second. Bam! Bam! Bam! all the way down the runway to
a stop. The plane was fine, but we
weren’t sure we could achieve takeoff speed with those ice speed bumps strewn
across the runway. Regardless we were
not of a mind to try.
The air was cold, and my Cessna
Skylane is STOL (Short Takeoff or Landing) equipped, so we briefly
contemplated, and quickly dismissed, using the ice-free taxiway as a runway.
Doing so would not have been illegal, or even
unsafe.
It would, however, have violated
Eric’s Second Rule: “Don’t Call Attention to Yourself.”
So we waited until the airport plow truck
showed up and made quick work of the little ice berms to take off.
Eric’s Second Rule is easily
ported to law practice risk management.
For example, nothing a lawyer can do will more quickly draw attention
than overdrawing his trust account. In
Colorado, financial institutions are required to promptly report any instance
of a dishonored instrument or insufficient funds to the Office of Attorney
Regulation Counsel, “irrespective of any overdraft privileges that may attach
to such account.” The OARC moves at
supersonic speed in response to any such incident report.
Overt conflicts of interest also
call attention to oneself. Concurrent representation
of an entity and a constituent may avoid detection in business transaction, but
side-switching or representation adverse to a former client in a litigation
matter will quickly draw the attention of opposing counsel and usually shortly
thereafter, the judge.
And can there be any more brazen violation
of Eric’s Second Rule than disregarding
Colo. RPC 7.1 in advertising?
An obviously misleading misrepresentation –
“Over 500 years of legal experience!” – ballyhooed in the local media will get
other lawyers talking.
An unsustainable
comparison with another lawyer’s services will produce a grievance faster than
you can say “RFI.”
Rule Three: The Chicken Wins
In explaining Rule Three, Eric
recounted a hellacious commuter flight into Jackson Hole during ski
season: 50 knot crosswinds. Visibilities and ceilings near minimums. A jet had already slid off the runway. In short, pretty typical conditions at KJAC
in December. The less experienced
co-pilot on the two-man crew was apprehensive about continuing the approach,
but to the more seasoned veteran in the left seat this was old hat, so down the
glideslope they went. The approach and
landing were masterful, and legal, but as he greeted his white-faced, disembarking
passengers, the old pro reconsidered the wisdom of his decision-making. “A good pilot is compelled to always evaluate
what's happened, so he can apply what he's learned.” Top Gun. So is a good
lawyer.
Rule Three readily translates to
the practice of law.
Just as in flying,
resource management is an essential skill.
A pilot-in-command is trained to use all his resources, including other
flight crew members, to lessen workload and increase safety.
A seasoned and capable lawyer is well advised
to listen to his junior associates when they appear apprehensive about the
legal course the partner has charted.
Both
Pilots and lawyers are frequently undone by past experiences in which the
decision-making was poor, but the outcome successful.
A successful approach to minimums does not
validate poor decision-making, nor bode success under similar conditions in the
future.
Nor does having dodged a legal
or ethical bullet in the past necessarily portend a similar outcome in a
different case.
“The Chicken Wins” means that,
when faced with a close decision, the option which enhances safety – of the
flight, the passengers, the client and her cause – should be chosen in breaking
any tie.
If an associate is apprehensive
about the legal approach, the old pro should listen. (The associate should also
remain mindful that while acting in accordance with a supervising lawyer’s
reasonable directions in resolving arguable questions of professional duty is
immunized, blindly following the “old pro” down the glideslope below ethical
minimums is not.
See Colo. RPC
5.2)
Having served for years on the
Colorado Bar Association’s Ethics Calling Committee I have observed that most lawyers
who call are not flying blind; they already know the right answer and are
simply seeking a sounding board.
Listening to one’s “inner chicken” is, more often than not, wise practice.
There are old lawyers, and bold
lawyers, but there are damn few bold lawyers whose professional conduct has not
been questioned or punished.
Don’t Do Nuttin’ Stupid.
Tuesday morning as I was pre-flighting my plane for the
return to Boulder and work, I wondered how many of the lessons and pithy proverbs
I have learned as a pilot translate to legal ethics and the practice of
law. The legal profession is not without
its own collection of colorful maxims. I
am particularly fond of the one attributed to Sol Wachtler, former chief judge
of New York's court of appeals, that a prosecutor can get a grand jury to
indict a ham sandwich. I have no doubt
of Sol’s wisdom, having witnessed some rather suspicious pork in my own hydrator
on occasion. (For lovers of legal etymology
and phrase origins I recommend Law Talk: The Unknown Stories Behind
Familiar Legal Expressions.) 
When I bought my current plane in 2000, the interior was
upholstered in what I called Nouveau
Navaho, and the placarding would have made an FAA ramp examiner LOL. It did, however, have one of the best warning
placards I have ever seen, posted directly below the directional gyro: “Don’t
Do Nuttin’ Stupid.” If Woody Allen is
correct that 80% of life is just showing up, heeding this admonition ought to keep
lawyers well below the disciplinary regulators’ radar. Still, notwithstanding its commendable pith,
it lacks a bit in specificity.
A significant cause of General Aviation (GA) fatalities is
weather – particularly when a pilot trained and licensed only for flight under VFR
(Visual Flight Rules) continues into the teeth of deteriorating conditions requiring
an IFR (Instrument Flight Rules) rating and IFR-equipped aircraft. Such folly frequently leads to what is known
in aviation parlance as CFIT – Controlled Flight into Terrain, in which a pilot
flies a perfectly good, fully-functioning aircraft in the Cumulus Granite because he can’t see and has lost situational
awareness. 
