National Webcast: Legal Ethics: The Latest Malpractice Risks and Prevention

Happy Memorial Day, everyone.  Please forgive my inattention to the blog lately.  I've been busy writing materials for a national webcast to be recorded at NBI's headquarters in Altoona, Wisconsin in June.  My ethics presentations have been recorded live many times, but never for a national ethics webcast.  Exciting yes, but it has sucked virtually all writing time out of my weekends for the last two months.  If you can't tune into the webcast on Friday 28 June, if you need ethics CLE credit it is still available (for a fee) as on-demand video from NBI.

Although I am finally done writing for NBI, I just promised the Denver Business Journal an article in June, tentatively titled How to Fire a Client.  So it's going to be a while yet before I get back to the blog.

Mirror Lake in the Eagle Cap.  (photo by denisseattle)

Fear not, though.  I've been stockpiling what I think are some great ideas for the blog -- some lighter, summer fare.  I should have time to write and post at least one article before the start of my my first summer vacation in 5 years -- a mid-July backpacking trip through the Eagle Cap Wilderness Area with my oldest daughter.  New hiking boots have acquired to be broken in, new gear must be purchased, and I need also need to re-up my FAA medical and biennial flight review in June.  It's going to be a busy summer.

Does Blue Horseshoe Still Love Anacott Steel?

Ethics Is Easy, Until . . . 

Early in my legal career I was given an opportunity to teach at Denver University’s College of Law by John Carver, a long-time faculty member who was also Of Counsel to our firm.  Phil Figa — later to become Judge Figa — was taking a leave of absence from teaching to chair the Colorado Bar Association’s Ethics Committee, so D.U. needed a Lecturer in Law to teach Phil’s Professional Responsibility class.  John knew I had a teaching bug so, either to help me scratch that itch or cure me of it, he recommended me for the job.

I’m not sure there was much competition.  It was the night division of the law school and if it paid anything it was an honorarium so small I can’t recall what it was.  But I loved it.  Here was a group of students, most of whom were holding down day jobs, who so badly wanted to become lawyers that they were willing to pull double or triple shifts to achieve their goal.  I was determined to give them their money’s worth and engage and challenge them.  

 If “Legal Profession” was considered to be an “easy ‘A’” at most law schools, it wasn’t going to be in my class.  I not only had a casebook, I created a 100-page supplement.  My goal was not to be a hard-ass, but to go well beyond the Code of Professional Responsibility to show how ethics applies in real legal practice.  For, to paraphrase Lt. Commander Riker, “When has ethics ever been as simple as a rule book?” 

To this end, one evening when I sensed my charges growing incredulity at the brazen ethical lapses that filled their casebook, I dramatically pulled out my wallet and, holding it aloft, proclaimed, “Ethics is easy, until this gets in the way.”  Melodramatic?  Sure, but also more accurate than I could have possibly then known.

I recalled this bit of classroom stagecraft recently while watching Wall Street: Money Never Sleeps, the sequel to Oliver Stone’s classic Wall Street.  In the original film, the protagonist, Gordon Gekko, preaches that “Greed . . . is good,” at least until you’re caught.  In Money Never Sleeps, after several years in prison and another seven years out of public view, Gekko is back in the limelight pitching his book, a story of personal redemption, Is Greed Good? 

Throughout the film the audience is left wondering whether prison has truly rehabilitated Gekko, or whether his public reformation is simply another con.  The uncertainty of Gekko’s salvation, set against the backdrop of the 2008 financial meltdown, and featuring a cast including ethical, unethical, and morally ambiguous characters, is surprisingly engaging and suspenseful.

In perhaps my favorite scene Gekko runs into his former protégé, Bud Fox, at a lavish philanthropic event at the Metropolitan Museum of Art.  Catching up on their lives, Bud tells Gordon that, “after a little time away” (in prison for insider trading) he turned his father’s airline “into one of the largest private jet brokerages in the world and sold it . . . made millions.” Fox now lives the life of ease he sought in Wall Street – “golf, winters in St. Barths, philanthropy,” and a gorgeous woman on each arm.  Fox then asks Gekko, “Does Blue Horseshoe still love Anacott Steel?” (the code phrase used in the original Wall Street to signal others to start buying and bidding-up the price of Anacott Steel.)  Gekko smiles and, laughing, replies, “You know it.”  But the audience is left wondering is Gekko just playing Fox?  Is he kidding himself?  Is “greed,” still “good” for Gekko?  Is the thrill of the game, and the desire too win, simply too intoxicating, too all-consuming, for Gekko to resist?  And are lawyers all that different from Gekko?

Why Do Good Lawyers Go Bad?  

Most lawyers are hard-working, honest, and ethical.  Still there are notable exceptions – the kind that filled my students’ casebook.  How many lawyers succumb to Gordon Gekko’s mantra “Greed Is Good”?  

One gets some idea reviewing the 2012 Annual Report of the Colorado Supreme Court’s Attorneys’ Fund for Client Protection.  Established in 1999 to reimburse losses caused by dishonest Colorado attorneys, as of December 2012 the Fund had made total disbursements of $5,127,474.47 on claims totaling $10,057,474.09.  That represents quite a few believers — and more than a few true believers — of the Gekko gospel among our legal brethren.  

Sadly, fraud, theft and other dishonest conduct by lawyers is frequent enough that, a few years removed from law school, the novelty is gone and we are generally anesthetized to the monthly “Roll of Shame” published in The Colorado Lawyer. That is, until it happens to someone we know and like.  Then we ask, “why did this happen?” and, if we have the temerity, “could this have happened to me?”

The Curious Case of Mark W. Fischer   

Fischer's Confession

My “there but for the grace of God” moment arrived in April 2007 when Mark Fischer, an attorney I had worked with years earlier, made a startling confession.  In 2005 Fischer had fabricated an order and forged the signature of federal judge Phillip Figa – the same Phil Figa whose Professional Responsibility class had been entrusted to my care years before.  

The faux order purported to stay execution of all judgment liens in a protracted and bitterly contested theft of trade secrets case in which Fischer had been engaged as defense counsel.  Fischer gave this forgery to his client, Judy Heumann, to record.  The counterfeit order purportedly enabled Heumann to stave off foreclosure and possible bankruptcy, continue to borrow against the property, and thus continue to finance her defense.  In his confession, Fischer stated:

I want to be absolutely clear.  Ms. Heumann and her husband had absolutely no knowledge that this document was false.  They had no reason to believe anything other than the document had been legitimately secured from the Court.  As evidence of this, before giving Ms. Heumann the document, I required her to provide my firm with $90,000 which I told her I would deposit into the Registry of the Court in order to secure the stay of execution.  Of course, no such deposit was ever made.

When I first met Mark Fischer in 1995 he was a young IP associate with Chrisman, Bynum & Johnson.  CBJ was an established Boulder firm which had grown to become the largest in town.  Although Mark struck me as a bit formal, he also impressed me as intelligent and hard-working.  I never had any occasion to question, or even consider, his honesty.  Although I had been practicing for ten more years than Mark, we were the same age and, both being IP lawyers, I felt a kindred connection with him, even more so because we both lived in Boulder.

In the twelve years since that encounter, CBJ merged into Faegre & Benson, and Mark had become a partner.  Reading his confession in Above the Law and other contemporaneous news accounts, I was disturbed that Mark could have done such a thing.  

Mark’s disbarment was a foregone conclusion, but offered no resolution for me.  Six years later, whenever I thought about it, his possible motivation and the forces that led to Mark’s downfall still bothered me, like a personal poltergeist.  In an attempt to make some sense of this tragedy I recently dug into the public record.  The clues I discovered left me better informed, but in ways more mystified.

Mark’s confession — in which he also professed “I am uncertain as to why I did what I did” — demonstrates a disturbing lack of self-awareness and/or candor.   I always assumed that money was at the root of his behavior.  An Amended Complaint filed against Fischer, Faegre & Benson, and their clients by Infant Swimming Research, whose judgment lien had been released by the ersatz order, seemed to confirm my suspicion:

10.   In late 2004 and into 2005, Faegre & Benson was pressuring Defendant Fischer to get its bill paid for legal fees in the Prior Action.  Otherwise, Fischer risked losing his job, his income, and his partnership interest in Faegre.

. . . .

16.   Through the forged order, Fischer retained his job and partnership, Faegre & Benson’s bill was paid, and Heumann was able to proceed with AGR’s work on the property and avoid foreclosure.  Fischer and Faegre & Benson were also able to bill more fees for an appeal for Heumann in the Prior Action, even though they lost.

Mark’s confession certainly hints that the $90,000 was used to pay Faegre’s legal fees, and I found nothing in the record to contradict drawing that inference.  Mark’s Conditional Admission of Misconduct resulting in disbarment was based solely on the creation and presentation of the fabricated order.  There was no claim that he converted the $90,000 he required from his clients as a condition of “securing” the stay of execution.  There is no other mention of what happened to the $90,000 in the public record – only the statement in Mark’s confession that “Of course, no such deposit was ever made.”  Since this “deposit” was given by Judy Heumann two years before the deceit was discovered, it is reasonable to infer it was used to pay outstanding legal fees which must have been substantial given the many years over which the Infant Swimming Research case was prosecuted.

However, in an affidavit submitted in support of Faegre’s successful motion for summary judgment, Mark categorically denied that his actions were the result of any pressure placed on him by his firm:

3.  . . . At no time leading up to the fabrication of the Order did Faegre “intensify its pressure on [me] to get its bill paid.”

4.  I was never under the impression, and no one ever indicated to me in words or substance, that my job or partnership interest in Faegre were in jeopardy should Heumann fail to pay her bill.

5.  My decision to fabricate the Order had nothing to do with insuring that Faegre was paid for services performed on behalf of Heumann.

Declaration of Mark Fischer dated 19 June 2007 (emphasis added).  

How does one reconcile this statement with the allegations of the Amended Complaint that Mark’s position at Faegre was at risk?  

One way is to discount the affidavit as disingenuous.  As the plaintiff argued, this was, after all, the statement of someone who had confessed to fabricating a court order and forging a federal judge’s signature, and who was at the time under investigation for violating federal criminal law[1].  Parsing the affidavit, Mark does not attest that he felt no pressure for Heumann’s bill to be paid, only that Faegre did not “intensify its pressure on [me] to get its bill paid.” (Emphasis added.)  

It is also entirely believable that Faegre did not “indicate[] to [Mark] in words or substance, that [his] job or partnership interest in Faegre were in jeopardy should Heumann fail to pay her bill.”  The pressure to collect large receivables is rarely so overt in law firms, yet it is palpable.  Most firms regularly provide accounts receivable reports to partners, and one’s compensation, if not one’s equity status, is determined on the basis of “productivity,” a central component of which is collections.

Moreover, for any conscientious partner the pressure to collect fees is internalized.  Faegre would not have had to have threatened Mark with expulsion.  $90,000 — assuming, as the record suggests, that the requested “deposit” had some relation to Heumann’s outstanding legal fees — is a substantial receivable.  The pressure to collect it would have been enormous, omnipresent and more insidious than any overt threat.  

There is, however, another explanation which comports the allegations of the Amended Complaint and the most interesting statement in Mark’s affidavit – that his “decision to fabricate the Order had nothing to do with insuring that Faegre was paid for services performed on behalf of Heumann”: The possibility that Mark had become lost in his case.

If one assumes a relationship between the $90,000 “deposit” and fees owing to Faegre, that Faegre would not have remain engaged as counsel indefinitely without a substantial payment of fees owed and/or a retainer against future fees and costs, and also considers that Faegre’s representation continued for two years following the fabrication of the order, Mark’s statement that his conduct “had nothing to do with insuring that Faegre was paid” can be explained as the actions of an attorney who had become so involved in his defense that he could not bear to see, and would not allow it to end for something as crass as non-payment of legal fees.  Having admittedly practiced a gross deceit against the court, his clients and his firm, Mark’s actions may be understood as those of an attorney who could not disengage; one who not merely adopted his client’s cause, but usurped it.  This possibility is far more disturbing than assuming that Mark acted out of financial self-interest for, if true, it evidences of complete loss of professional objectivity.

I am resigned to never knowing for certain what drove Mark to commit professional suicide.  There was no discovery or trial because the civil suit against Fischer, Faegre and their clients was shortly dismissed on summary judgment.  The dismissal was affirmed by the Tenth Circuit because, “notwithstanding Fischer’s abhorrent conduct, ISR suffered no injury-in-fact because its judgment was paid in full immediately after the final judgment was entered; thus, it never needed to execute or rely on its lien.”  

Perhaps Mark simply thought that, because Infant Swimming Research’s judgment was promptly paid, his actions would go unnoticed.  In fact they were for two years, until Infant Swimming Research’s counsel discovered the faux order, which forced Mark to “out” himself and Faegre to withdraw.  However, while calculating that the risk of discovery was small may have weighed in Mark’s decision-making, it does not explain his reasons for undertaking such a brazenly unethical and fraudulent criminal act in the first instance.  Was “greed,” i.e., financial pressure to blame?  Was the defense too simply too all-consuming for Mark to disengage?  Or was he driven by something else?  Like Gordon Gekko’s, Mark’s motives are consigned to remain a mystery.

Epilogue 

Once or twice in the past when I thought about this case I entertained the idea of driving over to Mark’s house and demanding point-blank “Why did you do it?”  It was brief entertainment.  I didn’t know Mark well.  It would have been intrusive and self-indulgent, and Mark had already paid the ultimate professional price.  Moreover, if Mark was unwilling to be candid with himself (“I am uncertain as to why I did what I did”), there was no reason to believe he would be honest with me.  It is, in any event, too late.  In researching his case I discovered that Mark passed away last summer from complications of bladder cancer.

Following his disbarment, Mark appears to have found peace and accomplishment outside the practice of law.  He was employed by CGQ in Denver, where he rose to become its Vice President of Product Management.  He was beloved by his family, and admired by his colleagues.  De mortuis nil nisi bonum dicendum est.

What lessons can be drawn from the legal life Mark Fischer? 

First, assuming that the financial pressure of a client being behind in its bill was at least partly responsible for Mark’s actions, allowing one’s client to incur a large debt, even in a perceived good cause, is not charitable; it has adverse consequences.  A client with a large account payable is under duress, and a lawyer with a large account receivable is, at a minimum, distracted from focusing on solutions to the client’s problems.  This combination rarely bodes well for the quality of representation.  If a client is falling far behind in her financial commitments and/or cannot afford the cost of litigation going forward, an attorney must at least consider that litigation — “The Sport of Kings” as one of my former partners called it — may not be in the client’s best interest. 

Second, a legal cause belongs to, and must at all times remain, the client’s.  An attorney provides value through professional objectivity and dispassionate representation.  Undertaking the client’s cause as one’s own, or worse, covertly converting it to one’s own, is both unethical and unwise.  The function of law is to resolve disputes.  Litigation is not an end in itself, no matter how irresistibly intoxicating the Sport of Kings may be.  A client deserves an honest lawyer, which requires first that a lawyer be honest with himself.

For me, though, the greatest lesson taken from Mark Fischer’s legal life may be humility.  In the Mark Fisher that I worked with as a professional colleague I saw a reflection of myself: a Boulder IP lawyer, just my age, hard-working, reasonably intelligent, whose integrity I never had cause to question.  In the tragedy of Mark’s fall from grace I cannot ignore that there are dark paths upon which even an ethical lawyer may somehow be tempted to stray.

John Donne

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.

John Donne, Meditation XVII.  

Rest in peace, Mark.

---

[1] On 15 February 2008 Fischer pled guilty to one count of violating Title 18, United States Codes §505, forging or counterfeiting the signature of a judge or court officer.  His conditional admission of misconduct and disbarment occurred one month later, on 24 March 2008.

A WEEK WITHOUT E-MAIL!

 

It wasn’t a planned vacation.  On Tuesday evening, about 5:40 p.m., we lost our staff’s e-mail connection to our Outlook Exchange server.  Ten minutes later we lost the attorneys’.  We were victims of buzzard’s luck: Two RAID discs and the controller in our Exchange server —the replacement of which had been postponed to avoid a weekend disruption during preparation for a trial — all gave up the ghost in rapid succession. 

As our firm’s resident geek-attorney our IT Director, Sean, sought my advice.  Parts were on order, but would not arrive until the following afternoon.  The Internet, our network, and every other system were purring like a kitten, however there was a high probability we going to be without e-mail for at least most of Wednesday.

Wednesday being “Donut Day” at our firm, I suggested hanging a sign on the door: ‘It’s e-mail-free Wednesday!  Enjoy the donuts!’” 

Sean, wisely, did not take this counsel.

“Okay, let’s pull out ‘Plan B,’” I suggested a little more helpfully.

“Plan B” is our firm’s version of “Reverse 911.”  Years earlier I had suggested that we harvest our employee’s cell phone numbers so we could text-message everyone in case of an emergency.  The exigency we had in mind at the time was a snow day, but to some in our office the absence of e-mail would constitute an emergency and was certainly sufficient cause to deploy Plan B. 

"Plan B"

So while Sean tried to diagnose the failure – the cause of which was still unknown – I composed a text message to our attorneys.  Succinctness not being my strongest suit, this was challenging because of the character limitations imposed on text messages sent between different cellular providers.  Twitter is more generous with its character allowance.  

I finally settled on this:

MW E-mail Services Are Down.  

MW e-mail services crashed shortly after 5:40p this evening.  IT is working heroically tonight to restore service, but restoration time is uncertain.  You may need to rely on personal web-based e-mail on Wednesday.  Incoming e-mail is being held at Postini.  Take whatever measures you need to protect/alert of [sic] your clients.

Even this pithy prose had to be sent in three parts.  I sent it twice because my Comcast webmail kept falsely reporting that my efforts had been unsuccessful, notwithstanding that they were appearing, almost instantly, on my iPhone.

That done, it being after-hours, and with no e-mail alerts to intrude on my thoughts — only the soft glow of the yellow triangle with the black exclamation mark emanating from my message bar declaring Outlook was dead — I had time for a little personal techno-reverie:

I thought back to the earliest days of my practice.   In 1981 written communications were primarily made using an IBM Selectric II typewriter and the U.S. Postal Service.  If something had to get somewhere in a hurry, you dashed to FedEx.  Head, Moye, Carver & Ray owned a Qwip –an early fax machine that was advertised as being able to send one page every two minutes (it was more like six) on a spinning cylinder, but only to another Qwip machine.  The Qwip —manufactured by Exxon Office Systems, which also produced the cabinet-sized Vydec word processor — was spectacularly unreliable, and was thus employed with the same frequency, trepidation, and success as Get Smart’s “Cone of Silence.”

 

Fast-forward about a decade.  When we first put IBM PS/2s on attorneys’ desks, we couldn’t get them to turn them on.  DOS was an operating system only a geek could warm to, and few attorneys had the keyboard skills, or patience, to learn WordPerfect.  There was no e-mail because there was no commercial Internet.  When Banyan “Blue Mail” finally arrived it worked only on our internal network, and no one read it.

My how things change.  Cobwebs grow on our in-boxes, which nowadays deliver mainly magazines and junk mail.  It’s been years since a runner appeared in my doorway breathlessly announcing, “Mr. Luce, it’s a fax for you! It’s a fax!”  Most attorneys don’t know how to use a Dictaphone, and virtually all do their own typing.  We have become addicted to Internet e-mail which, for attorneys, turned out to be the “Killer App.”  We get it on our PCs.  We get it on our smartphones.  We get it 24/7/365.  It is addicting, demanding, disruptive and essential.  And now ours was kaput.

Our IT crew, of which I proudly claim to be an “associate member,” worked valiantly, and largely without sleep, through the night and the next several days to restore modern order.  By dawn Sean had moved us from Postini to McAfee MX-Logic, so that we could actually access new incoming mail.  We backed-up everyone’s local Outlook in-box to supplement our regular full mail-server backups.  When, after the controller replacement arrived, it was discovered the two RAID discs on which our e-mail was stored had bad sectors, we began a restore from our backup tapes to good discs.  Concurrently we prepared our new Exchange server and brought it online by Friday.

The restoration of other, less critical services, lagged.  Outlook “Contacts” and “Autocomplete” had to be manually restored on each PC.  Our voicemail-to-e-mail forwarding service did not get back online until late Friday, and our conference room scheduling was still down as the weekend arrived.  It took about 36 hours for the Internet root servers to recognize our redirect from Postini to MX-Logic, so the release of e-mail spooled at Postini was delayed about two days and arrived in a swarm.  There were sporadic “bounce-back” issues within our network and some Citrix spottiness as the “Nerd Herd” worked to get all the intricate, interlocking electronic gears to mesh again.  But we survived.

Lessons Learned

1.  Shit Happens.  Systems fail – frequently at the most inconvenient of times.  Although the raison d'être of a RAID is its redundancy, a cascading failure such as we experienced not only brought down our e‑mail, but also the flash-frying of our controller did not enable us to confirm there were bad sectors on the affected discs until it was replaced.  

We were snake-bitten, for sure, but could we have avoided this headache?  Few law firms have, or are willing to invest the money required to build completely redundant systems.  Nor are they required to by any reasonable standard of professional care.  Comcast, Amazon and Facebook each experience service interruptions even with formidable redundant systems.  The expense must be balanced against the likelihood of catastrophic failure.  What is required is that attorneys recognize and plan for the arrival of Murphy and the Gremlins before they appear at our doorstep.

2.  Have a “Plan B.”  9-11 finally drove home to most firms the wisdom of providing for disaster recovery.  From our “week without e-mail” experience we learned that firms also need a recovery plan for those disasters falling short of their building being brought down by terrorists.  For example, our Postini system has, at least until recently, been a fabulous SPAM-catcher, protecting our network and increasing attorney efficiency.  However, Postini’s current iteration has no provision for e‑mail continuity.  As a result, last week we could log on to Postini and view umpteen Viagra ads and Nigerian 419 advance-fee scams, but could not access incoming e-mail that we actually wanted.  McAfee MX-Logic has a poorer interface, but provides for e-mail continuity.

Although our IT director acted swiftly to move us to MX-Logic, any e-mail arriving in the gap between our mail-server failure the switch-over to MX-Logic was caught in Postini’s inaccessible spool.  Moreover, our clients had no way of knowing our inbound e‑mail was disrupted since it was spooling securely, albeit inaccessibly, at Postini.  In an age where court orders and pleadings arrive by e-mail, the importance of maintaining e-mail continuity may have been the most valuable lesson learned.

3.  Have a Personal “Plan B.”  Attorneys have become utterly dependent on systems few of them completely understand.  Nevertheless,

A lawyer has a general duty of competence under RPC 1.1, which includes the duty “to keep abreast of changes in the law and its practice.”  RPC 1.1 Comment 6.  To the extent that a lawyer uses technology in his or her practice, the lawyer has a duty to keep informed about the risks associated with that technology and to take reasonable precautions.

WashingtonState Bar Advisory Opinion No. 2215 (2012) (emphasis added).  Similarly, last year ABACommission on Ethics 20/20 Resolution 105(A) recommended this addition to Comment [6] to Model Rule of Professional Conduct 1.1:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis in original.)

The Yellow Triangle of Death

 I have been preaching the “competency in computing” sermon at technology-ethics CLEs for years.  Our “week without e‑mail” demonstrated the necessity of having a personal Plan B when the yellow triangle tells you “you don’t have mail.”  On earlier occasions when our phone system crashed, our lawyers didn’t miss a beat – they pulled out their cell phones and carried on.  Our network and Internet connections remained rock-solid.  Had they needed to, those attorneys who knew how to use their personal Internet provider’s web-mail service to send mail could have functioned quite well.  Many knew how to do that, but everyone needs this skill.  If we don’t develop such rudimentary competencies now, how are we ever going to cope when an electromagnetic pulse or a hacker attack that brings down the entire World Wide Web?

4.  Don’t Let the Lawyers Dictate Equipment Replacement Schedules.  As noted, our Exchange server had been previously scheduled for replacement, but our IT crew postponed this task to accommodate some lawyers preparing for a Monday trail.  Had IT not been so accommodating would our “week without e-mail” have occurred?  We can never know.  

This is tricky office diplomacy as the practice and our clients come first.  However, in a firm of any size, there will always be some trial or closing, and there will never be an optimally convenient time to take down a major network component.  Accordingly, administrators must be ready to push-back and support their IT’s replacement schedule.  If attorneys were given absolute power to veto an upgrade schedule, we’d all still be running DOS 3.1. 

5.  It’s Still a First World Problem.  E-mail is a “disruptive technology,” in more ways than one.  Psychology Today tells us it’s addictive.  Efficiency experts advise us to turn off e‑mail alerts and our cell phones if we don’t want to experience technology-inducedADD.  (BTW, here’s how to turn off the pop-ups and sounds in Outlook.)  

From my own experience both are right.  That pop-up window and e-mail alert elicit a Pavlovian response demanding attention which disrupts my concentration and momentum like a bumper-car collision.  When the e‑mail is really flowing, the default Outlook configuration makes an average computer light-up and sound like a pinball machine.  Lawyers, competitive by nature, find themselves cast in the roll of the “Bally Table King,” playing electronic Whack-A-Mole, a/k/a “I can answer that complex legal issue in 1 minute,” to the detriment of their clients, their professional wellbeing, and possibly their health.  There’s a reason Intel and other companies pilot-tested “e­‑mail‑freeFridays” in 2007, and those overcome by an avalanche of electronic communications declare “e‑mail bankruptcy” – and option attorneys do not enjoy.

Electronic court orders actually requiring immediate response excluded, losing e-mail for a day or even several days, is still a First World Problem.  It can even be a welcome relief.

While most lawyers have willing embraced electronic tethers out of necessity or convenience, the practice of law is not dependent on any machine.  Though we must be prepared to deploy our personal “Plan B,” we are not, and must not, allow ourselves to be undone by something as mundane as a computer failure.

I keep thinking of Samuel T. Cogley, the attorney hired to defend Captain Kirk in the original classic Star Trek episode, Court Martial.  Kirk is ordered to stand trial for allegedly prematurely jettisoning a research pod, thereby killing Lt. Commander Ben Finney.  Kirk arrives to discover Cogley has encamped in his quarters and bestrewn it with books.

Books!

COGLEY: What's the matter? Don't you like books?

KIRK: Oh, I like them fine, but a computer takes less space.

COGLEY: A computer, huh? I got one of these in my office.  Contains all the precedents.  The synthesis of all the great legal decisions written throughout time.  I never use it.

. . . .

COGLEY: This is where the law is. Not in that homogenized, pasteurized, synthesizer. Do you want to know the law?  The ancient concepts in their own language?  Learn the intent of the men who wrote them, from Moses to the tribunal of Alpha 3?  Books.

(You can view this marvelous scene here.)  Later, Cogley forcefully argues Kirk should be entitled to confront his accuser:

COGLEY: The most devastating witness against my client is not a human being. It's a machine, an information system. The computer log of the Enterprise.  . . . I speak of rights. A machine has none.  A man must.  My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine. Indeed, you have elevated that machine above us.  I ask that my motion be granted, and more than that, gentlemen. In the name of humanity, fading in the shadow of the machine, I demand it. I demand it!

(You can watch Elisha Cook Jr.'s marvelous argument here.)

While we have not yet fallen under the yoke of our own electronic creations, there is wisdom in the words of Samuel T. Cogley.  The law is not to be found in that “homogenized, pasteurized, synthesizer,” and we cannot permit our practices to be ground to a halt when technology fails.  From the perspective of professional risk‑management, the essential counterpart to techno-dependency is competence and self-reliance.  Cultivate your inner-geek.  Develop your personal “Plan B.”  Do these things now, and you will easily survive your own “week without e­-mail.”