The Profession — The Wolters Sanctions Case

District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It is refreshing to abandon cynicism about the profession and to focus every once in a while on what the practice of law can and should be. A few excerpts:

• “[W]hile the idealized notion of the small-town lawyer is an anachronism, the idea that civility among lawyers is incompatible with full and effective representation should not be. Indeed, while Rule 7-101 of the Lawyer's Code of Professional Responsibility obligates a lawyer to provide zealous representation, it provides at the same time that ‘[a] lawyer does not violate [this responsibility] by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.’... So, while our system is by its very nature adversarial, it goes without saying that such a system expects —indeed, requires — a measure of civility.”

• “Even conduct that I did not find to be sanctionable showed dismaying incivility to the others involved in this case, the Court included.”

• “While I am dismayed at the way in which many law firms today approach the practice of law, I realize that for the most part it is none of my business and indeed not the business of the judiciary in general. The fact that partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable, hours is not only the alpha and omega of bonuses but that these hours — or at least the ones that count — often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt major internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession. While decriable, these are as I said really not my concern. Rather, it is the fallout from such conduct, sonic of which we witnessed here, that ineluctably drives some lawyers and sonic law firms to the kind of conduct that played out before me at this hearing and that then becomes the business of the courts.”

• “On a final note, the reader should be clear that I firmly believe the sentiment expressed in the Craco Report that ‘the actual level of professionalism brought to thousands of lawyers across the state, in court and office, day in and day out, is extraordinarily high.’ I am hopeful that by casting a ray of light on This anomalous and sanctionable behavior the public and the profession will be better served.”

Ten years ago, on a very slow news day, I debated another lawyer on the Today Show who maintained that he was “paid to be rude.” Wrong then, and wrong now. We’re paid to be effective, not rude. Rudeness is the refuge of the less capable.

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