The Ethical Esquire

The Ethical Esquire

By: Maryam Hatcher, Esq.

Dear Ethical Esquire: I graduated from law school last spring and took the bar exam over the summer.  I’m still waiting on my bar exam results, but I know that my family members back home are going to be asking me for legal advice over the holidays.  My question is – how much should I charge them?

– Lawyer in Limbo*

Dearest Limbo:  Do you believe in fate?  I think that fate brought you to this advice column.  Why else would you come to the Ethical Esquire seeking advice on how to appropriately bill your family members/would-be clients?  Surely you did not think that I could assist you with such matters.  Yet you were drawn to me by some force (perhaps fate!) because somewhere, deep down, you knew that you were in need of ethical guidance.  You have come to the right place, Limbo.

First things first, you, my dearest, are no lawyer.  And to be clear, that means you are not an attorney either.  While you are no doubt proud – and rightly so – of your shiny new Juris Doctor degree, being a lawyer requires more than just a J.D; you have to actually pass the bar and, in some jurisdictions, be sworn in before you can hold yourself out to the world as a lawyer.  Even if you are already working at a law firm or some other legal services provider, your professional communications to the outside world must include a disclaimer (which can vary in nature, so check your state’s rules!) that essentially lets the world know (a) you are most assuredly NOT licensed to practice law in your jurisdiction; and (b) you are being supervised by someone who is.  In short, you have no business calling yourself a lawyer or giving legal advice.  For shame!

Secondly, you mentioned that you will be offering this illicit legal advice when you are “back home.”  Even assuming that between now and the holidays you become licensed to practice law in the state in which you took your exam, you are not out of the woods yet.  Is home the same jurisdiction in which you took the bar exam?  If not, then you may find yourself engaged in the unauthorized practice of law, which we the in the ethical world refer to as “a big no-no.”  I want you to spend some time reading and re-reading ABA Model Rule 5.5 (and the ancillary rule for any state in which you plan on practicing) to fully understand the limits on giving legal advice in a jurisdiction you are not barred in. You are walking a mighty fine line, Limbo, and I would rather not see you topple over.

Limbo, I beseech you, enjoy these halcyon days of pre-lawyerdom before the enormity of your distinguished calling as an attorney consumes your life.  And in doing so, remember – you are NOT a lawyer (yet), you are NOT going to spend this holiday season giving legal advice to your family members wherever the heck “back home” is, and you ARE going to learn every ABA Model Rule of Professional Responsibility by heart (or at the very least, refer to them often).

Now – go forth and be ethical!

–  EE

*Disclaimer: “Lawyer in Limbo” is a fictional advice seeker.  This blog is satirical in nature and, though it aims to provide helpful guidance regarding professional responsibility dilemmas, it is not intended to offer legal advice.

Next month, the Ethical Esquire will delve into the wonderful world of attorney advertising.  Should be fun!

 

 

The Lady Lawyer: Kerslyn Featherstone, Esq.

Happy November!   So far, the Fall is off to a great start for me.  The weather has been crisp, but comfortable here in Washington, D.C.   Likewise, the majority of my cases have been relatively quiet as the holidays approach.  However, I’m sure many of you, particularly litigators, can relate there is usually calm before a storm.  Chaos is often right around the corner.

As I await the next surge of depositions, motions, witness meetings, and trials, I think back to July when I first-chaired a two week-long jury trial.  During that time I worked until 2 a.m. every night, seven days a week, over the week leading up to the trial and during the trial.  I breathed and dreamt witness testimony, evidentiary objections, and exhibits.  Needless to say, I neglected everything and everyone around me, including myself.    It was exhausting, but no one was irreparably harmed, and most importantly, we won!  So, all is well, right?  Probably not.   Considering how drained I was in the end, I recognize that tuning out the rest of the world is unrealistic, long-term, and for many it may be impossible now.

This month, I wanted to speak to a Lady Lawyer that does not have the luxury of tuning everything out.  Our November Lady Lawyer is a litigator and mom, Kerslyn Featherstone.

Kerslyn Featherstone, Esq.

Patricia Donkor (“PD”): Where are you from?

Kerslyn Featherstone (“KF”): Memphis, Tennessee

PD: Tell us what you do.

KF:  I am a Civil Litigator with the D.C. Office of the Attorney (“OAG”), in the Civil Litigation Division.  My official title is Senior Assistant Attorney General.  Prior to that, I was a Prosecutor with OAG’s Public Safety Division from 2003-2008.

PD: How many jury trials do you have in a given year?

KF: One to two.  They typically last 1.5 to 2 weeks.

PD: When do you get into trial mode?

KF: Depending on the complexity of the trial, I typically get into trial mode about a month before the trial.  In other words, that’s when I start meeting with witnesses, getting files ready, move around other assignments, and make time for the trial.

PD: Tell us about your kids.

KF: I am a mother of identical twin boys.  They are seven years old and in the second grade.

PD: So, as a mom and trial attorney, how do you balance those roles?

KF: It’s a balancing act between keeping up with them in general, their school, staying active in my community, managing a case load of thirty cases, and trying to make time for myself so that I am operating at my best.  It can be challenging, difficult, and almost impossible at times, but it is something that I have to do.  I have to figure out a way to make it work for my own sanity.

PD: What does that look like?

KF: For me, I have a shutdown period from about 8:30 p.m. to 9:30 p.m.  During that time, there is absolutely nothing going on in my head.  This is after I have put my kids to bed.  Even if I have taken work home with me, I will wait until after that down period to do that.  I spend an hour doing nothing, reading gossip blogs, or whatever makes me unwind.  My mom lives out of town, but she will sometimes come into town, like once a quarter, for a week at a time to give me an extra hand.  This gives me time to work out in the mornings or evenings, and gives me a break from having to rush home to help with homework.

PD: We are both trial attorneys, for me, I shut down when I’m in trial, but for you as a mother of two, this may not be possible.  How do you do it?

KF: As a single mother, which I am, I don’t have the ability to completely shut down.  I have to remain plugged in on some level.  Sometimes, my mother is able to come into town for my trials.  Within a week of trial, I go into shut down mode, but it is impossible for me to shut down completely.  I would love to, but a part of that balancing is actually performing the balancing act.

PD: What would you say to our mommy readers, who are litigators or thinking of litigating, about how you handle business while caring for yourself?

KF: Being a litigator you already have toughness about you and think you can do it all, but you don’t want that breaking point to come at your cost.  You have to make time for yourself, have to have an unplug period, have to pull that hour out for yourself, you have to eat lunch away from your desk, and you have to begin to start taking little breaks.  You will know when your body is telling you that you have done enough.  It is hard to give one answer that fits everyone. It depends on the situation and one’s level of comfort.   Everyone needs to find that balance for themselves.  Don’t believe that you can do it all.  Regarding work, if you are at a place that is requiring 18 hour days, that may not be a place for you.  There has to come a time when you decide whether the employer you are working with suits your needs for your ability to make time.  It’s a tough decision, but it’s a balancing thing.

PD: Do you think you find that you have mastered the ways to care for self?

KF: Absolutely not.  That is why I am affirmatively trying to make time for myself.  I have now started to accept that I can’t do it all.  You have to find your own center and once you do you will make the right decisions.  Don’t measure yourself by what someone else is doing.  Don’t look at another mom.  Look at your situation and make sure you are making the same decision for your family or career.  You can do more or less but that does not make you less of a mom or a lawyer.  People can look at me and think, “I don’t know how she does it.”  But I may be different.  In fact, at one point I would think I’m good, I’m good, but now I am taking more help.

PD:  Great advice!  Thank you so much for your time Kerslyn.

Self-care is subjective.  There is variation depending on work responsibility, home life, etc.  However, I think we all can agree it’s important.  I’m a work in progress.  Hopefully, through the exploration of this blog, I, and maybe you, will get closer to self-actualized self-care.

-Patricia Donkor

 

The Ethical Esquire

The Ethical Esquire

By: Maryam Hatcher, Esq.

Dear Ethical Esquire: I just passed the bar – yay! – and I had to sit through my state’s tedious professional responsibility seminar.  After hearing about all of the potential professional responsibility pitfalls, I am scared to death of getting disbarred!  After all – these student loans aren’t going to pay for themselves!  What’s a baby lawyer like me to do?

                    -Newbie ESQ*

Dearest Newbie: Congrats on getting through law school and passing the bar!  With all of the jokes out there decrying the seediness of our noble profession, you would think we don’t care a thing about ethics.  On the contrary, becoming a licensed lawyer often means that you have taken at least one professional responsibility course in law school, earned a sufficiently high score on the Multi-State Professional Responsibility Exam (MPRE), learned enough about state-specific ethics rule to pass your state’s bar exam, and provided a detailed explanation of every infraction in your life (from your parking tickets to that one time you fibbed to your fourth grade teacher about your dog eating your homework) via your character and fitness disclosures.  And then you have to meet your (sometimes yearly) ethics continuing legal education obligations.  Not many vocations can boast of quite so many safeguards to ensure that their professionals understand and abide by certain codes of conduct.

Nonetheless, each year thousands of lawyers throughout the country find themselves before their states’ attorney discipline boards for alleged violations of a myriad variety.  As brilliant as the Ethical Esquire likes to think she is, even she cannot explain in one blog post how each of these violations could have been avoided.  To claim otherwise would be, well…unethical of me.  However, knowledge is power and I encourage you to keep your post-bar exam enthusiasm for professional responsibility knowledge going by staying on top of changes in your jurisdiction’s ethical rules.  When you have a question about a professional responsibility issue, don’t ruminate quietly in your office until that sick feeling in your stomach goes away – seek an answer immediately!  If you’re feeling a bit lost on how to proceed, try these resources to help point your research in the right direction:

  • The American Bar Association’s Model Rules of Professional Conduct (the “Model Rules”)
  • The American Bar Association’s Ethics Opinions
  • Your State’s Rules of Professional Conduct, which may differ from the Model Rules
  • Your State Bar’s Ethics Hotline
  • Your firm’s principal in charge of Professional Responsibility

Additionally, it goes without saying (and yet, here I am saying) that, to the extent that you have found yourself in violation of the rules, honesty and forthrightness are the best policies as you work to rectify those violations.

Ok, Newbie, I answered your general question with a list of general professional responsibility resources.  I hope that this information helps you sleep at night knowing that, while you will never hold all of the answers in your head at one time, the answer is in fact out there somewhere.  Seek it zealously.

Now – go forth and be ethical!

                       -EE           

*Disclaimer: “Newbie ESQ” is a fictional advice seeker.  This blog is satirical in nature and, though it aims to provide helpful guidance regarding professional responsibility dilemmas, it is not intended to offer legal advice.

Next month, the Ethical Esquire will tackle the purgatory-like period of time after you earn your law degree but before you’re licensed to practice law.  She will offer tips on how to navigate post-JD life like a champ and avoid getting called out by bar counsel for the unauthorized practice of law.  Stay tuned!

Guest Blog: No Vote. No Voice.

By Melanie E. Bates

No Vote. No Voice.

(Originally posted on http://www.melaniebates.net/blog/no-vote-no-voice)

9/26/2017

United We Stand

Over the weekend and during Monday Night Football, millions of people from all around the globe watched a beautiful thing: unity in the fight for justice. The National Football League came together to take a stand against police brutality and racial injustice in America, by kneeling and locking arms during the singing of the National Anthem. Even the Baltimore Ravens and Jacksonville Jaguars, who were playing in London on Sunday, demonstrated their support. These historic acts by the courageous players of the NFL signals a giant step forward in our fight for equality.

No vote. No voice.

There is nothing more important than voting in the fight to effectuate change. I have heard people say, “What is the point of voting? My vote does not count anyway.” This could not be further from the truth. If you do not vote, you silence your voice. By not voting your address is in jeopardy of being removed from the voter rolls. You will therefore not receive bulletins about debates or other information about how to become involved in the political process. Generally, candidates running for elected office work unbelievably hard to raise money to run their campaigns. These candidates do not have the incentive to use their limited funds to engage persons who do not vote and they will instead focus on persons who do. As Thomas Jefferson said, “The government closest to the people serves the people best.” The reality is if you do not exercise the privilege of voting, you will not have the ability to make your voice heard.

Take Action!

Today is National Voter Registration Day. If you are not registered to vote, there is no better day than today to do so. Tell everyone you know to register to vote as well and create a plan to get out to the polls on Election Day. We owe it to ourselves and our ancestors who put their lives on the line to fight for our right to vote. Use the inspiration of the NFL to fuel you to take action.

The Lady Lawyer

By Patricia Donkor

Welcome Readers!

I am ecstatic about this blog and excited that you are tuning in.  Being a Lady Lawyer is challenging.  Our work can be intense, emotional, and chaotic and that does not even begin to address the obstacles that we encounter in our personal lives.  This is why the notion of self-care is paramount.  However, self-care is a dynamic concept.   Sometimes self-care occurs organically and other times it requires ongoing internal conversations or even consultation with others.  With this blog, I am hoping to explore every cornerstone of this subject.

Upon graduating from law school, I spent a year as a judicial law clerk and from there have held multiple trial attorney positions.  Deciding which positions to take, when to leave a position, and how to succeed in various positions involved an element of self-care.   Certainly, with every career move, I had to assess my long-term goals and how the position juxtaposed with them.   However, the less apparent assessment that I needed to make was whether that move made me feel good inside.  That thought process is one version of self-care.  Similarly, I have pursued leadership opportunities in the legal community, some of which I have out grown, while others are still near and dear to my heart.  Moreover, I like to maintain an active social life.  I am constantly weighing which social activities are the best uses of my scare free time.   Each of these are other versions of self-care.

Because this is the first installment of the blog series, it was only right that GWAC’s President, Janea Hawkins, weighed in on the subject.

President Janea Hawkins

Patricia: Hi Janea, our members and readers know you as President of GWAC, but tell us a little more about yourself.

Janea: By profession, I am a trial attorney with the Personnel and Labor Relations Section of the Office of the Attorney General for DC. I am also an Adjunct Professor for the second-year appellate legal writing program at the Antonin Scalia Law School at George Mason. I am heavily involved with the Washington Bar Association Educational Foundation Board and the Washington Council of Lawyers. I also immensely enjoy singing with the choir at my church, Ebenezer AME Church in Ft. Washington, Maryland and my biweekly bible study sessions with my small group. Last but not least, I am happily married to my husband of just over one year, Jabari, and we love to travel, spend time with friends and family, and play tourist around DC!

Patricia: You have your hands in a number of things.  With so many interests, what does the concept of self-care mean to you?

Janea: For me, self-care means making yourself a priority. We all lead incredibly busy lives and it is so easy to lose ourselves in that.  Self-care means unapologetically taking an hour out of each day to exercise, pray, meditate, whatever you need to keep yourself balanced.  Self-care for me also means eating healthy, getting plenty of sleep, and shutting the computer and/or phone off at a set time each evening so that I can reset to tackle the next day.

Patricia: Self-care seems to be a popular topic among our members, why do you think that is?

Janea: I think it is primarily because we all want to operate at our optimum level. It is difficult to do that when we are constantly tugged and pulled in multiple directions at the same time. We are all Wonder Women in our own right, and we need to openly share ways to maintain our optimum levels. The best way to do that is to align ourselves with like-minded people and encourage each other along the way.

You see, although we may share common traits as black women attorneys; there is substantial diversity amongst us.  Some of us our mothers, mentors, or mentees. Others work as government lawyers, trial lawyers, transactional lawyers, criminal lawyers, big firm associates and partners, and non-traditional lawyers. These distinctions shape how we self-care.   Each month, we will speak to a different Lady Lawyer and explore the role and importance that self-care plays in her life.  Perhaps you will recognize yourself in some of our features, learn new ideas for taking care of yourself, or think about a concept that had not previously dawned on you.    Whatever you take away, hopefully you enjoy journey!

 

Getting to the “Personal” in Personal Branding

Don’t Forget About the “Here and Now”

WOW! The 2016-17 bar year has come to an end just as quickly as it started!

We began the bar year with board and member retreats in our summer best and will be ending the year with our annual installation ceremony of our new officers this Thursday.  From launching the Inaugural Resident Blogger Program to hosting our own virtual 5K, GWAC has attempted to provide quality programming and resources to our members throughout the 2016-17 bar year.

As Public Relations Chair for GWAC, I am always thinking of new ways to promote the next GWAC event.  This idea of “next” can infiltrate different parts of our lives.  How are you going to get the next promotion, that next job, that next volunteer opportunity?  If you are anything like me, focusing on the “next” endeavor can divert your attention from the task that you are currently confronting.  What about this current position, this current job, this current volunteer opportunity?

Thus, I wanted to end the getting to the “personal” of personal branding blog on a simple note: while it is important to set goals, do not forget to complete the tasks that are before you now.  Your personal brand is what others think of you when you are not in room.  Do you want to be known as the person that submits incomplete work, the person that does not put forth their best effort, or the person that is involved in so many activities that you are not really good at anything?  Of course not!  Therefore, before networking your way to your next position, make sure you are doing your absolute best in the position you are in — so you can be ready for the responsibilities that come with that next position, that next job, that next volunteer opportunity.

I hope you have a safe, joyous, and prosperous summer!

What is the Solution?

What is the Solution?

(Originally posted at http://www.melaniebates.net/blog/what-is-the-solution)

African Americans are racially profiled and discriminated against consistently by law enforcement, due to implicit bias stemming from the horrendous history of this nation. I am outraged that yet again another police officer has been acquitted for murdering one of our people. I am sick and tired of this cycle repeating itself over and over without requiring accountability and transparency on the part of our government, which is paid by our tax dollars to protect and serve.

“I feared for my life.” These five words are regularly used by police officers as a defense. Fear is defined as “an unpleasant emotion caused by the belief that someone or something is dangerous, likely to cause pain, or a threat.” The countless police killings in recent years prove that the law does not protect African Americans. These instances are teaching us that if you are African American, you are a threat and therefore free game to be killed. The reality is, African Americans are the ones who are in constant fear for their lives. For example, if I am driving and see a police officer behind me, my stomach flips. I get nervous and shaky. I am worried that I will be pulled over for no valid reason and endure unnecessary emotional stress during the encounter. It does not matter that I am an attorney and know my rights. All it comes down to is that I am African American and perceived as dangerous.

When I was learning to drive, the first thing my mother told me was if I ever got pulled over, to keep my hands on the steering wheel at “10 and 2” where the officer could see them. If I did not have a chance to get my license and registration out prior to the officer coming to my window, I was to ask for permission to remove it from the glove compartment. I am certain my friends in white households were not taught the same.

I refuse to sit idle and watch another tragic incident occur. We must demand change. We cannot stop fighting until we see measurable impact. If transformation will not come from our elected officials and others in power, we must serve as the influencing voice to advocate for justice. But what is the solution?

Melanie Bates is an attorney based in Washington, D.C. She is on the Advisory Board of Free Minds Books Club and Writing Workshop, a nonprofit organization that uses books, creative writing, and peer support to awaken D.C. youth incarcerated as adults to develop their own potential. The views expressed here are her own.

Law & Well Being

Making a Case for Downtime

By Denise A. Robinson

Want to be more productive? Take a break.

As discussed in the first blog in this series, our American culture drives us to do first, be later. And the legal profession and client-service fields like it take that mantra to that next level. We are rewarded for pushing through, working all the time, and dropping everything when the client calls. But this approach means that we’re fighting a losing battle with our ability to focus, according to the research of Daniel Levitin and other neuroscientists.

While we are trained to think that if we just keep at it, we’ll get the work done, the fact is that our brain cells fatigue like any other cell in the body. To keep them fresh, we need to regularly allow the attentional filter in our brains called the insula, to move from tasks that require focus and concentration to those that don’t. These attention states are known as task positive and task negative, respectively. Taking a break from work is a way to get to the task negative state, but some of the common things we do when we think we’re taking a break won’t get us there. Consider the last time you were working and stopped to do something else. If that something else included checking your email or reading the news online, your brain treats that just like working from an attentional standpoint. It may feel like a break to you, but those activities compete for the focus and concentration needed for work tasks.

No wonder we’re so tired!

In addition to getting proper rest, something as simple as taking a brief walk outdoors or even around the office can reset your brain and provide you greater attentional resources when you return to tasks requiring focus. Recreational activities have a similar effect, as do hobbies such as gardening, painting, or making crafts. Listening to music or getting lost in a good novel works as well.

Taking vacations where you’re truly unplugged counts, too, but don’t wait for your next trip to give yourself a break. Make time for downtime every day.

How do you hold DC police accountable? Here’s how I learned.

How do you hold DC police accountable? Here’s how I learned.

(Originally posted on http://www.melaniebates.net/blog.html)

By GWAC Past President Melanie E. Bates

“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” This profound quote by Thurgood Marshall succinctly illustrates the importance of knowing your rights when encountering the justice system, especially if you are African American. It is undisputed that African Americans are racially profiled and discriminated against consistently by law enforcement, due to implicit bias stemming from the horrendous history of this nation.

African Americans are pulled over by police, searched, and arrested at tremendously higher rates than whites. In Washington, D.C., between 2009 and 2011, more than 8 out of 10 residents arrested were African American. The inmate population at the D.C. jail is 89.1% African American, but African Americans only make up 48.3% of the city’s population! These figures are shocking and demonstrate how African Americans must always be prepared to demand equal treatment under the law. Unfortunately, I recently found myself in a situation where I would need to do so.

A few months ago, my friends and I were passengers in my friend’s vehicle, a newer model Maserati, when we were pulled over by D.C. police for no apparent reason. We were followed by this officer for at least .25 miles prior to being stopped. We were told the reason for the stop was due to a call about a woman in distress. The officer also stated that my friend failed to use his turn signal. Both of these statements appeared to be unfounded. After the officer collected my friend’s license and registration and returned to the vehicle, he stated that sometimes foxes are mistaken for a woman’s scream. He then issued a warning for failure to signal. My friends and I were outraged. The stop seemed to be an obvious act of racial profiling and a clear abuse of discretion. We were four young African Americans in a luxury vehicle, driving in an upper class neighborhood in the early morning hours. I shudder to imagine how this incident would have ended had my friend not indicated he lived in the neighborhood.

Fortunately, the District of Columbia established a mechanism for residents to hold law enforcement accountable. The agency was opened in 2001 and is called the Office of Police Complaints (OPC). The stated mission of OPC is to increase community trust in the District of Columbia police forces by providing a fair, thorough, and independent system of civilian oversight of law enforcement. Residents can file complaints against the Washington, D.C. Metropolitan Police Department and D.C. Housing Authority Office of Public Safety within 90 days of an incident. Since OPC opened, it has received approximately 15,830 total contacts with potential complainants and has handled 6,968 formal complaints.

I submitted my complaint to OPC via the online form. A few weeks later, I was interviewed by an OPC investigator. My case was then referred to mediation. In mediation, the mediator guides you and the officer through a dialogue about the incident that led to the complaint with the goal of reaching a common understanding. My mediation went surprisingly well. The officer was very cordial. He provided an extensive history of his background and thought process for the stop. He said hindsight is 20/20 and described what he would have done differently. He was clearly briefed and his statements seemed a bit rehearsed, but I think he was genuinely concerned and empathetic about my frustrations as an African American woman in America. The officer’s body worn camera footage did not capture the alleged failure to signal so it was essentially his word against mine. In the end, I agreed to resolve the complaint. It was a transformative learning experience. I was able to hear directly from the officer about his perspective of the incident and he was able to identify what he could have done differently, hopefully leading him to make better choices in the future.

I strongly encourage all residents to take advantage of the services OPC has to offer. While it can be an extensive process, the results are invaluable. You will feel empowered and motivated to help others fight for their rights. We must come together and join forces to hold our government accountable to its citizens. Our collective action will effectuate movement towards a more fair and balanced justice system.

Melanie Bates is an attorney based in Washington, D.C. She is on the Advisory Board of Free Minds Books Club and Writing Workshop, a nonprofit organization that uses books, creative writing, and peer support to awaken D.C. youth incarcerated as adults to develop their own potential. The views expressed here are her own.