Sunday, October 7, 2012

Ethics Lessons From the Cockpit

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:
  1. Don’t crash
  2. Don’t do anything that calls attention to yourself, and
  3. 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.