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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.

 

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Sexism: The Elephant in the Courtroom

Posted By Administration, Tuesday, August 14, 2018

by: Judge Ashleigh Parker Dunston, Wake County District Court

My dad always told me that I can be anything I put my mind to.  He actually encouraged me to be a doctor instead of a lawyer, which is ironic since he retired as a prosecutor.  He also made it very clear to me that I would be treated differently because of 2 "strikes" against me: my gender and my race.  One common misconception is that the higher the education or profession, the less likely that sexism and racism exists.  Even in light of the recent #metoo movement, we, as professionals, tend to distance ourselves from having this difficult conversation because we don’t believe that sexism is a problem in our field; hence, the elephant in the room. 

Sexism is defined by Merriam-Webster as prejudice or discrimination that foster stereotypes of social roles based on sex. Sexism is also one of the least discussed topics when we talk about attorney professionalism.  In fact, when I attempted to research applicable Rules of Professional Conduct that directly relate to inappropriate comments or actions not occurring in the courtroom to fellow attorneys, the closest that I found was Rule 3.5: Impartiality and Decorum, Comment 10, Rule 4.4: Respect for Rights of Third Persons, Comment 2, and Rule 8.4: Misconduct, Comment 5.  I encourage you to take a look at these rules and determine for yourself whether you deem them directly on point. 

In my experience as an Assistant District Attorney and Assistant Attorney General, I have been asked in open court if I am “Mr. _____’s secretary,” if I am an intern, ignored during calendar call, discouraged from positions, so on and so forth.  But this article isn’t about me, it’s about all of the women throughout our bar who have experienced sexism and misogyny in their professional careers.  The following are true accounts from women throughout the 10th Judicial District Bar.  I solicited their stories because I wanted to ensure that we all understand that this is a problem that we cannot avoid talking about.  It’s the elephant in the courtroom, boardroom, and breakroom that is negatively affecting your colleagues every day.  My hope is that through sharing these experiences, we can begin to discuss ways to change this dynamic and speak up when we see instances of sexism taking place.  To those who bravely shared--thank you, to those who wanted to share, but couldn’t--thank you, and to those who stood up for these women--thank you!

{These stories have been edited for brevity, clarity, and, in some cases, to protect the victims.}

“Several years ago, a male colleague called and berated me over the phone in the presence of another colleague for over 5 minutes. It was allegedly because of an email where he believed that I had belittled him, although I hadn’t. I was in complete shock and was busy trying to find a rational answer for his behavior that I didn’t call him out for his unprofessionalism and verbal abuse, which still makes me mad at myself today. I’m now aware of several other times when he has yelled at others, but like my interaction, most have been unreported or, if reported, not really dealt with.”

“I’ve never been treated differently by those in my firms because of my gender, but I have encountered issues from third-parties. I’ve been asked if I was my boss’ paralegal.  Once he found out that that was an issue, he made sure to always introduce me as an attorney to try and prevent it.  I’ve also had opposing counsel that has had an issue with the fact that he was litigating against a woman.”

“When I was a brand-new attorney, I handled a motion in court extremely well.  An older male partner in my firm was with me, and when I and opposing counsel finished our arguments, the judge proceeded to ignore me for the rest of the proceedings although I was the one who handled the case.  I felt offended and confused, but it gave me energy and motivated me to not only continue to excel in my field, but also to never treat other people the way I’d been treated that day.”

“Most notably, I have had a male attorney approach me and ask me to stand up and turn around in a circle so that he could see what kind of ‘little dress’ I was wearing that day and what it looked like on me.  He then told me to not be surprised when he sent all of the other attorneys in to come and look at me.  Later, when I was looking at something on a colleague’s computer, he proceeded to tell my superior that the reason that he was stopping by was so that he could watch me bend over.  I’m a curvier woman who tries to clothe myself appropriately for my shape and age; however, I’ve noticed that men use that as an opportunity to pass judgment and make crude or inappropriate gestures to me.”

“When I walked into the courtroom with my older, white, male paralegal, the judge asked him if he was ready to proceed, despite my name being on every pleading filed in the case.  I stood, smiled, and advised him that I was the attorney for the department and was ready to proceed.”

“When I was a new attorney, I was working on a case against an older male attorney who called my male boss to complain that I was referring to him by his first name instead of Mr. ___.  He believed this to be disrespectful, although he had referred to me as, ‘honey, darling, sweetie,’ etc. in our phone conversations.  Thankfully, my boss gave him a lesson in professionalism, informing him that, as colleagues, he expected we would all call each other by our first names regardless of years of practice--or gender.”

“While at a firm retreat, a male associate groped my private parts without my consent.  When I later confronted him, he claimed to be drunk.   It caused me significant pain because I felt like, as an attorney, how could I advocate for anyone when I couldn’t advocate for myself?”

“I have been consistently called ‘aggressive’ and a ‘ball buster’ by men.”

“I worked at a law firm where men were constantly scoping out new female hires to ‘grade’ them on their looks.  If there was one who was deemed to be less attractive, they’d give the woman a nickname like ‘Fat So and So.’  I once heard them state that a very competent and kind female attorney had legs that looked like ‘pigs wrestling under her skirt.’”

“Once, while in the attorney room, several male attorneys started complaining about prosecutors and began to demean one female prosecutor in particular.  One referred to her as a c**t, and others chimed in using a variety of four and five letter words.  It was as if I was invisible, so I eventually picked up my folders to make it evident that I was present and walked out.”

“When my client’s name was called out, I went to the defense desk as my client made her way to the front.  The male judge asked me where my lawyer was.”

“I am a Wake County retired emergency judge.  I graduated from UNC School of Law in 1975 and immediately went to work as the first female assistant district attorney in Wake County.  There were only a handful of female attorneys in the county at the time.  So few, in fact, that I used to say we could all meet in a courthouse elevator and still have room to spare! 

Several years into my job as a prosecutor, there was a vacancy on the district court bench.  A rumor was going around that I was interested in it, which, at the time, I wasn’t.  A white male prosecutor, who was interested, dropped by my office and asked if I was going to pursue an appointment to the vacant position.  Apparently, just because I was female, he thought the appointment would be given to me, because he said ‘I’m tired of Anglo Saxon males being discriminated against.’  I have no recollection of how I responded to that, but I do remember thinking ‘You’ve got to be kidding.  You have no idea what discrimination is!’

A few weeks later, I was attending a Wake County Bar Association Christmas party.  I was approached by a middle aged white male attorney who asked if I was going to try to get appointed to the vacant judgeship.  I said no, and he said ‘Good.  I don’t think women should be judges.’  I’m sure this was just an offhand comment to him, but I was shocked, offended and speechless.  I quietly walked away, wishing I had been quick enough to come up with an appropriate response to his remark.  I was surprised by what these two men had said to me, particularly since most of the men in the Wake County bar had been welcoming to me when I started working in the District Attorney’s Office. 

I doubt that the two lawyers who made these comments even remember them, but they have stuck with me all these years.  In the 1980s, I became a judge, after running one time and losing, and then being on 4 separate appointment lists that went to two governors.  It was obviously not as easy for me to get appointed to the bench as that male prosecutor thought it would be!  I can’t begin to tell you how proud I was as we added one female judge after another to the Wake County District Court bench.  With each new addition, I remembered the lawyers’ comments.  The poetic justice in the number of women on the bench now is much better than any response I could have given when those sexist remarks were made to me so many years ago.

They are certainly not the only personal examples I could share, as there have been others over the years, but these comments made a lasting impression on me.  Fortunately, these experiences have been greatly outweighed by the tremendous support and kindness shown to me by numerous other male attorneys.”

 

If you experience or witness these or similar acts of sexism, please find someone you trust and confide in them and remember that these experiences do not define you.  Sexist and misogynistic comments and actions hurt, distract, and erode the profession.  So now that we’re aware of the elephant, we should all do our part to end sexism and raise the bar of professionalism in Wake County.

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Purposeful Mentoring

Posted By Administration, Tuesday, August 14, 2018

by: Megan West Sherron, Campbell Law School Assistant General Counsel & Assistant Dean of External Relations

Mentoring is an experience that most of us have at some point in our career.  Perhaps your first mentor was your supervising attorney in your first job or maybe it was an informal connection with an attorney you admired.  However you came to find a mentor, they all provide value to us in multiple ways.  Legal mentoring has four specific functions and mentors can provide all or one of these various functions.[1] 

One of the first and most significant functions of mentorship is career mentoring.  Career mentoring is all about helping a protégé learn the ropes and advance in their career.[2]  This type of mentoring should help a protégé develop networking skills, instill time-management, assist with career planning, and provide practical legal knowledge.  People who have had career mentoring report greater career outcomes including advancement and compensation.[3]

Psychosocial mentoring is another important function that mentoring can provide.  This function is about creating self-esteem and professional and personal growth for a protégé.[4]  This type of mentoring is accomplished through challenging yet manageable work assignments, feedback, acceptance and confirmation, and even something as simple as coffee and a conversation.  This function is powerful because it affects how a protégé is likely to feel about their job.[5]

Legal mentoring has two additional functions that business mentoring does not have, role-modeling and professionalism.[6]  Role-modeling focuses on developing professional standards, knowledge, and skills.[7]  This could include lessons in getting and maintaining clients, relationship management, counseling, negotiations, finding solutions to legal issues, and practice management.  The professionalism function focuses on instilling the ethical standards required by the legal profession.[8]

Mentorship is a unique relationship in which one or all of these functions come to play.  Recognizing where you need mentoring or perhaps where you could be a good mentor is an important step in a successful mentorship relationship.  The Campbell Law Connections Mentorship program will start again this August and we welcome new mentors and new attorney protégés to join our program.  For additional information on the program and requirements, please contact Megan West Sherron at sherron@campbell.edu.

 


[1] Neil Hamilton & Lisa Montpetit Brabbit, Fostering Professionalism through Mentoring, 57 J. Legal Educ. 102 (2007).

[2] BELLE ROSE RAGINS & KATHY E. KRAM, THE HANDBOOK OF MENTORING AT WORK: THEORY, RESEARCH, AND PRACTICE 5 (Sage Publications, Inc. 2007).

[3] Id.

[4] Id.

[5] Id. at 5-6.

[6] Hamilton et al., supra note 1, at 108-109.

[7] Id.

[8] Id. at 109.

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The Legacy of Professionalism

Posted By Administration, Tuesday, August 14, 2018

by: Ryan Shuirman, Yates McLamb & Weyher LLP

There’s a saying about standing on the shoulders of giants, and we are lucky to practice in a community where there are so many giants providing us sure footing.  The collegiality we enjoy here truly is not enjoyed in a lot of other places, and we clearly have our predecessors to thank. 

If you’re as fortunate as me and have had a chance to practice with some local lawyers to whom the utmost in professional conduct comes naturally, then you’ve gotten a firsthand look at the ideals of our profession in practice.  We can all aspire to those ideals, but we’re even more fortunate when our partners’ actions send a clear signal of what is expected in our special bar.

Recently, a younger associate in our firm attended a deposition with one our firm’s senior partners.  When he returned to the office, he mentioned that so much of the professional style of the senior partner was what he had seen and read in transcripts from depositions taken by others in our office.  He found it remarkable that despite such disparate personalities and practice specialties within even our firm, the professional way of handling witnesses and opposing counsel in depositions was so consistent among our lawyers.

The explanation for this consistency is not that the lawyers in our firm have individually studied the Rules of Professional Conduct and independently reached some standard for how issues will be handled.  Rather, the obvious explanation is that those who came before us knew how to conduct themselves professionally and they have mostly unintentionally, but sometimes intentionally, served as examples for how things simply “should be done the right way.”

The truth is we’re not unique in how we approach our work professionally.  Truer still – we are not original in our professional approach.  Each of us is a product of our observations of other lawyers who have come before us, and we owe a debt of gratitude to those who have shown us what to do.  Don’t miss opportunities to be the example others can emulate, especially during summer clerk season and as new members of the bar are sworn in this fall.  Younger lawyers and students are looking.  And if we want the next generations of Wake County lawyers to have as fulfilling a practice as we are lucky to enjoy, then we can only do what those who have come before us have done so naturally for so long.  Few things in the practice of law can be more satisfying than knowing younger lawyers take from you a bit of the professional wisdom you learned from those before you.

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Hey Opposing Counsel: Let Me Give You a Hand

Posted By Administration, Tuesday, August 14, 2018

by: Katie King

Not long ago, I was watching the semi-final round of a mock trial competition.  Single elimination.  The first team had presented a flawless case – until one of the advocates, in the middle of a smooth cross-examination, stood before the jury for nearly two minutes struggling to set up a faulty easel.  It was like watching a famous figure skater, moments away from completing a 10.0 routine, wipe out on his final double axel. 

A student from the second team quietly stood up, pulled his own easel out from behind his counsel table, and walked it across the courtroom for the other team to use.  It was a stunning act of professionalism for any lawyer, much less a law student. 

When I was in my first year of practice as an assistant district attorney, there were many moments where I wiped out on that double axel.  Sometimes, I didn’t even know how I came to be sitting on the ice or how to get back up.  There was one defense attorney, an older attorney who had the benefit of wisdom and experience, who would talk to me after each motion or trial we had.  His conversation would start with, “Let me tell you why I said this…” or “Here’s why you can’t argue that case under these circumstances…”

He made me a better lawyer with each piece of advice.  He probably also saved himself having to rebut legally inaccurate arguments or motions that didn’t rest on solid footing from a novice attorney.  It is this kind of informal conversation and general amiability that betters our profession as a whole.  For the older lawyers, when you see a young lawyer making a common mistake: pull her aside after court or telephone her to give some helpful advice.  Trust me, it will be more appreciated than you can imagine.  For younger lawyers, the value is in listening. 

Sometimes the common courtesies that we extend to one another as human beings are checked at security along with the rest of our briefcases and file folders. The adversarial system has a tempting way of turning us as attorneys into adversaries.  But we are not adversaries – not personally anyways.  Zealous advocates standing at irreconcilable positions?  Perhaps – but never enemies.  The Golden Rule applies as well in the courtroom as it does in the cathedral, convenience store, or anywhere else:

Treat others as you would like to be treated.  

 

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If the President Calls – Decline, in a Totally Professional Way, of Course

Posted By Colleen Glatfelter, Friday, June 29, 2018

By Maria M. Lynch, Tenth Judicial District Bar President, 2018

This is not a political post.  If I represented only those clients who agreed with my politics, I would have starved to death long ago.  This is about professionalism in the attorney-client relationship at the outset.  Rule 1.16 of the Rules of Professional Conduct deals with declining or terminating representation.  Before undertaking representation of a client, do your best to determine whether you may later have to review the provisions of 1.16(b), which outlines circumstances in which you are permitted to withdraw.

 

Good client selection skills foster professional relationships, but all lawyers make mistakes in this area occasionally.  Fortunately, potentially difficult clients can often be identified early in the process by certain common characteristics, many of which are present with respect to the President.  First, he has been through multiple lawyers.  A client who has a history of hiring and discharging lawyers or hiring lawyers who later quit should be given greater scrutiny.  Generally, I might ask if the client would waive attorney-client privilege and allow me to discuss the earlier representation with the lawyers who have been fired or withdrawn.  If a client has been through multiple lawyers, proceed cautiously.

 

Second, the President has been reported in multiple stories in the press to be, at best, slow to pay his lawyers’ fees.  I do a fair amount of pro bono work, but I only do it for clients who cannot pay, not for those who will not.  Finally, the President certainly has the reputation of not taking the advice of his lawyers.  I tell clients they do not have to take my advice, they just have to pay for it, but at some point this is not a truthful statement because, if a client never takes your advice, the client is looking for a mouthpiece, not a lawyer.  A client who insists upon taking action that the lawyer considers to be contrary to the advice and judgment of the lawyer is going to result in a troubled attorney-client relationship.  In fact Rule 1.16 allows permissive withdrawal for an attorney who represents a client who insists upon taking an action the lawyer considers “repugnant, imprudent, or contrary to the advice or judgment of a lawyer, or with which the lawyer has a fundamental disagreement.”

 

If you find yourself in a relationship that is straining the limits of your professionalism, review the provisions of Rule 1.16 and determine if you can withdraw.  Make sure you comply with applicable law requiring notice to or permission of a tribunal, and in every case in which withdrawal is permitted, a lawyer must take steps to protect the client’s interest.

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She posted that? He tweeted what?

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 30, 2018

Maureen McDonald Zyglis,  Parker Poe Adams & Bernstein LLP

As an employment lawyer, I frequently advise clients on issues surrounding social media use by their employees. Many employers have well-crafted, reasonable policies in place, policies which outline expectations of appropriate social media usage by representatives of the company. Yet, inevitably, they are left scratching their heads saying, “She posted that?” or “He tweeted what?” I often find myself saying the same thing when I see the constant barrage of tweets from the White House. Regardless of political affiliation, I think we can all agree that the amount of tweets from the highest office in our land may be cause for a reassessment of the role social media plays in our society.

We are surrounded by a generation that thrives on 6-second sound bites, YouTube videos, and Facebook likes. It is easy to get lost in what is appropriate to share with the public, and to blur the lines of professionalism in the process. As lawyers, we have a duty to be ethical and professional, and I submit that this duty does not end when we leave our offices for the evening. We are a profession and, more importantly, a local bar of respect. Our social media presence should reflect that. For some that may mean simply avoiding certain topics, while for others it may mean maintaining separate accounts – one for professional use and one for personal use.  Whatever your choice, here is my top five list on using social media:

1.      Do not disparage clients, co-workers, bosses, opposing counsel, judges, or jurors, no matter how much you may think they deserve it.

2.      Think about the image you want to portray before posting photos. (ie: Wait until you are clear headed the next day to decide whether to post the picture of you shot-gunning a beer at 3am.)

3.      Foster intelligent discussion when you can.  I’ve watched one of my mentors do this so gracefully during the recent debates on gun control and was impressed by her ability to help those with a seemingly drastic difference of opinion find common ground.

4.      Before posting or tweeting, imagine reading it aloud in front of your boss, your mentor, or the person you hold in the highest regard in your office (for some lucky folks that may be the same person).

5.      Proofread!  Proofread!  Proofread!

Our society is battling a social media epidemic - and yes, I do believe it is an epidemic. People have become quite comfortable sharing intimate details of their lives via social media, and it does not seem to be slowing down. Studies show that 81% of millennials check Twitter at least once per day, and that teens are spending nearly nine hours per day on social media platforms. We may not be able to stop the train bearing down on how those in our society interact, but what we can do is set good examples in our little corner of the world. 

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Accentuate the Positive

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 16, 2018

Ripley Rand, Womble Bond Dickinson (US) LLP

Chief Justice Mark Martin has named 2018 “The Year of Legal Professionalism” in North Carolina. This proclamation will not be the only focus on the professionalism of lawyers in our state this year, though. Recognition of lawyers with a history of exceptional professionalism happens every year. The Chief Justice’s annual Professionalism Award “spotlight[s] individuals whose career commitments in areas such as legal ethics, disciplinary enforcements, and lawyer professionalism demonstrate the high calling and higher achievement of lawyers in modern society.” The North Carolina Bar Association has two professionalism awards: The H. Brent McKnight Renaissance Lawyer Award recognizes the “enduring influence and high ideals of the full, accomplished life of a ‘Renaissance Lawyer.’” And the Young Lawyers Division presents the Robinson O. Everett Professionalism Award to younger lawyers who demonstrate professionalism through their commitments to local, state, and national bar associations. A number of county and district bars also have awards honoring lawyers who have shown the highest standards of professionalism and legal ethics in their practices.

But when the word “professionalism” pops up in a North Carolina appellate opinion, you can bet it isn’t a happy occasion.

Our appellate courts often address the problematic professional (and sometimes personal) shortcomings of lawyers, whether in specific proceedings or dispersed throughout a period of someone’s career. Sometimes, the Court will chastise a lawyer for straying beyond the lines set by the ethical rules in the context of a heated closing argument or cross-examination in a particular case. Other times, the Court will review the Disciplinary Hearing Commission’s findings about a lawyer’s unprofessional behavior in detail. Almost twenty-five years ago, the Court of Appeals sadly reflected in Storey v. Hailey, 114 N.C. App. 173 (1994), that “legal etiquette and professionalism are becoming more rare.” It’s hard to say from reading North Carolina’s appellate opinions that things have gotten any better.

This may just be a perception problem, though. Other courts across the country have recently pointed out occasions when lawyers have shown the highest levels of professionalism. In State v. Corleto, 161 A.3d 504 (R.I. 2017), the Rhode Island Supreme Court remarked upon the “commendable display of professionalism and candor” that the defense attorney made arguing a procedural motion. In Suter v. Commonwealth, 796 S.E.2d 416 (Va. App. 2017), the Virginia Court of Appeals commended the prosecution’s “level of professionalism in honoring counsel's ethical duty of candor to this Court” in setting forth case law adverse to its position that had not been brought to the Court’s attention. In State v. Woods, 393 P.3d 886 (Wash. App. 2017), the Washington 1st District Court of Appeals included a footnote noting its appreciation of the work of the defense attorney, who had been appointed to represent the defendant late in the process – “We extend our gratitude to Mr. Womack, who handled this unusual assignment with a high degree of skill and professionalism.” And both sides of the case made favorable impressions on the Florida 5th District Court of Appeal in A.J.A. v. State, 215 So. 3d 639 (Fla. App. 2017): “We acknowledge and appreciate the professionalism with which counsel on both sides addressed the sole issue on appeal.”

The only positive reference to a lawyer’s professionalism that appears in a North Carolina appellate opinion did not come from the appellate court itself, but from the trial judge’s commentary as recounted in the opinion. In State v. Barden, 356 N.C. 316 (2002), the Supreme Court noted that “the trial court complimented all counsel for the professionalism demonstrated during trial.” Anyone who spends much time in a courthouse knows that North Carolina’s trial judges often say similar things to lawyers in open court. Appellate judges often congratulate the lawyers who appear before them on their professionalism and on having made outstanding arguments. Clients will also let their lawyers know how much they appreciate professionalism in all kinds of cases, whether those are courthouse matters or not.

The only people who ever know about these commendations, though, are the other people in earshot at the time. As author Neil Postman said, “The written word endures, the spoken word disappears.” North Carolina’s appellate opinions hold a special place in our state’s legal history as the only readily available written summaries of what happens in our state’s court system. Our lawyers (not to mention the public) both deserve and need to know when our judges encounter the highest levels of professionalism. This “Year of Legal Professionalism” is as good a time as any for our appellate courts to recognize that kind of professionalism in their opinions. 

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Resting Our Lawyer-Brains

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 2, 2018

Carmen Bannon, North Carolina State Bar

No one has ever accused me of being a serious athlete, but I’ve spent enough time around jocks and fitness enthusiasts that I’ve internalized the notion that rest and recovery are necessary for optimum performance.  As I understand it, physical exercise is a cellular process of breaking down muscle tissue and then rebuilding it bigger, better, and stronger.  If we push our muscles hard every single day, they don’t have an opportunity to rebuild and may actually end up losing endurance and strength, and being more prone to injury.

Yes, this is a metaphor.  The “muscle” we use, abuse, and over-work in the practice of law is our brain. When we are facing a deadline or a trial, we expect our brains to perform optimally for many long days in a row, sometimes weeks, with little or no rejuvenating experiences to fuel that marathon.  But our brains need rest and recovery as much as our other parts—perhaps more: the consequences of over-taxing our brains are far worse than losing a bit of muscle mass or a few pounds off our personal best bench-press.

In 2017, the National Task Force on Lawyer Well-Being published its report, entitled “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” Among the many recommendations in the report is educating lawyers about the need for “downtime to recover from work-related stress.”  It notes that lawyers who do not finds ways to recover from job-related stress are at higher risk of depression and burnout.  Lawyers who are sleep deprived (a common affliction that severely over-taxes the brain) are likely to suffer diminished cognitive functioning and difficulty concentrating, among other unpleasant effects.

We must, for our mental health and for our productivity, give our brains a chance to rest and recover.  It would be wonderful if we could all spend our lunch hours silently meditating or taking a yoga class…but as someone who has hurriedly eaten my fair share of microwave lunches at my desk so I can promptly get back to working and grinding my teeth, I know that is not realistic for many of us.  And although we need to take proper vacations, a couple of weeks per year out of the office isn’t enough to help maintain brain-equilibrium day-to-day.  The good news, though, is that even small breaks during the work day can make an enormous difference in productivity and focus.  Research has shown that taking even a few-minutes break from a long mental task sharpens your ability to focus on the task when you return to it. 

Although the fitness tracker I wear on my wrist is underwhelmed by my overall athleticism, I have set it to kindly remind me once an hour to get up, move around, and get some oxygen circulating to that critically important “muscle”: the long-suffering lawyer brain.

 

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Harness the Power of Feedback

Posted By Sarah L. Justice, Wake County Bar Association, Monday, March 26, 2018

Whitney Waldenberg, The Brocker Law Firm, P.A.

When we think about communications with our clients, we are often focused on our obligations under Rule 1.4 of the North Carolina Rules of Professional Conduct.  As a result, we often view communication with a client in somewhat clinical terms: reporting information to the client, advising the client about his or her rights, explaining the pros and cons of pursuing a claim or defense, and obtaining the client’s consent to a particular course of action.  But have you ever considered expanding the scope?  For example, would you consider asking your client for feedback on how you are doing?

Extending an invitation for feedback from your client may not seem like a fun exercise and may even feel a little uncomfortable.  After all, most of us strive to be self-assured, and asking for feedback may feel like self-doubt.  However, asking for feedback may not only enhance the relationship you have with your client, it may also avoid misunderstandings, improve your practice, and importantly, provide some welcomed affirmation.

Consider this: just by extending the invitation for feedback, you will have communicated to your client that you care about him or her, that you are interested in what he or she has to say, and that you are listening.  The invitation will likely be well-received, appreciated, and may reinforce your client’s confidence in you.

Further, by giving the client an opportunity to provide some feedback, you may uncover a misunderstanding of which you were previously unaware.  Such a discovery provides a key opportunity to address a relatively small issue early on, before it potentially snowballs into a larger problem.  Many disciplinary complaints stem from breakdowns in communication between the attorney and client and addressing concerns in a proactive manner may just prove to be the stitch in time that saved nine.

If the client is forthcoming, you may learn about areas for improvement. For example, you may learn that while email communication is easiest for you, your client is not computer-savvy and prefers to receive phone calls.  Or you may learn that your client was expecting to hear from you every day, and you now have an opportunity to manage that expectation.  Receiving this type of feedback may flag common issues that you can address across your practice to enhance your relationship with all clients.

Finally, you may actually get some positive feedback, and who doesn’t want that?!

 

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Do Help The Elderly Person Cross The Street But Be Careful Crossing Back

Posted By Sarah L. Justice, Wake County Bar Association, Thursday, March 1, 2018

by: Ted Smyth, Cranfill Sumner & Hartzog

I imagine most every lawyer at some point finds herself or himself in the position where she or he has been asked about a topic or issue, while at the curbstone, the BBQ picnic table, the restaurant line or most likely on a telephone call.  Inevitably, someone is seeking legal advice or assistance, in a situation where it is readily apparent, perhaps due to the size of the fees, that your representation is impractical.  In my particular arcane area, it is often a phone call seeking representation for something such as: obtaining loss arising from diminished resale value as part of an automobile collision claim; or an inquiry as to whether the homeowner’s insurer can ask the policyholder to give a recorded statement under oath.  My fellow insurance law geeks know what I’m talking about here! Often, you simply observe that it is not really a circumstance where it would be economically prudent to represent the person.  However, sometimes the impulse arises to spend an extra 5 or 8 minutes on the telephone and give a brief tutorial on that process or issue, perhaps as do-it-yourself suggestion for the person on the other end of the phone. 

Patiently spending an extra 5 to 8 minutes is a frequent occurrence when you are speaking to friends or friends of friends.  Sometimes the person on the other end of the line has absolutely no connection to you, and it is simply a cold call business inquiry.  Even then, I sometimes find myself breaking out the 5 to 8 minute tutorial, when it is highly likely I will never see, hear from, or connect with the person on the other end of the phone ever again.  I would like to think that this impulse arises from the basic desire to have the general population believe that lawyers are good people, and like doctors, we would like to assist a person in immediate need.  That is an excellent and noble reason to spend the extra time on a voluntary basis on the telephone with people who need assistance - to build trust in lawyers as a group. 

I believe that subconsciously, I execute a sliding scale approach to participating in such things depending on my perception of that person’s relative poverty-challenged circumstances, willingness to work hard, and sense of appreciation.  Honestly, it also depends on whether I got a good parking space that morning and don’t have a brief due at 5 o’clock.  I believe that somewhere in the cosmic karma of the universe, when a good thing happens, a tiny vibration bounces out into the world and causes others to do the same.  It is the next best thing to sitting at a phone bank at a Bar Association 4All call-in Friday, a pro bono clinic, or another affirmative commitment to be at a specific place at a particular time to render free legal services.  It is kind of a bite-sized helping of helping.  It is organic, it is random, and it will not make or break a day.

Of course, you want to safely get back to the other side of the street after you have assisted the grandmother in the crosswalk.  I have a couple of internal processes I try to follow in these circumstances.  First, if I decide to take the 5 to 8 minute tour of some arcane area, I have already decided I am not going to charge a fee for the information.  If there is going to be a fee involved, it is an entirely different conversation for me and would need to be structured like any other formal retention of a client.  Second, if the person seeking assistance offers to pay me for my time, I always say no.  Along those same lines, I try to say at least three or four times in the course of this brief discussion that I am not the person’s lawyer, I am just talking to that person today about some general things that might be helpful.  I do not prognosticate on chances that X or Y will likely be the outcome of their efforts, or otherwise handicap how things will progress for them going forward.  I always warn them that there are statutes of limitations and repose, even if I don’t believe there are any such pressing matters.  I always say they could call another lawyer or two if they want for different perspectives.  Even after stating that you are not this person’s lawyer, a letter to the person on the other end of the line confirming you are not their lawyer should be utilized to impress that point on the person with whom you are speaking. 

Additionally, I do not suggest that this telephone call be the first installment of a multiple call series of advice, and I do not invite a periodic call back.  When I get off the phone, I do not expect to ever hear from the person again.  The North Carolina Rules of Professional Conduct are instructive on these matters.  For example, Rule 1.2(c) and Comments [6], [7], [8] and [9] are instructive on an interaction with a client that is limited in scope; Rule 1.16 and Comment [1] are instructive in declining or terminating representation; and Rule 1.18 is instructive on duties to perspective clients, and in particular, the notion that information shared - even in that brief encounter - is subject to privilege.  Finally, one needs to be mindful that in these limited interactions, issues relating to conflict of interest with other firm clients or matters may arise.

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