The Ethical Esquire

By Maryam Hatcher, Esq.

Dear Ethical Esquire: I’m in a bit of a prickly situation.  I have a client, who is facing eviction, with an upcoming trial next week.  The problem is, he is being extremely uncooperative.  I really want to help him, and I think that I can secure a victory for him that would allow him to stay in his home (I’m not sure if another attorney could quickly get up to speed before next week’s trial).  However, he does not respond to my calls or emails and he has missed important meetings, which makes it nearly impossible for me to effectively represent him.  I’m thinking about just throwing in the towel and withdrawing my representation.  Would I be wrong?

– Annoyed Advocate*

Dearest Advocate:  I understand your frustration.  You want to advocate for your client, but he is not making it easy for you.  But you know what they say…no one ever said lawyerin’ was easy.

The good news is that the ABA Model Rules of Professional Conduct do provide helpful guidance about whether a lawyer can or cannot withdraw from representation.  Specifically, Rule 1.16(b)(6) states that “a lawyer may withdraw from representing a client if … [the representation] has been rendered unreasonably difficult by the client.”  This provision seems to apply to your case in that your client’s lack of cooperation is proving to be a stumbling block for you.

However, Rule 1.16(b)(1) expressly states that a lawyer is only permitted to withdraw if such withdrawal would not lead to material adverse effects on the interests of the client.  In your case, you mentioned that given the looming trial date, you are not sure whether another attorney could step into your shoes and be prepared to represent your client by the current trial date.  This may not be an insurmountable hurdle if the court and parties are amenable to rescheduling trial to allow the new attorney enough time to prepare, but it is certainly a significant factor that you would have to consider.  After all, if your client’s new counsel cannot adequately prepare for trial then that would certainly have a “material adverse effect” on your client’s interests.

In addition, the Rules require the withdrawing attorney to “take steps to the extent reasonably practicable to protect a client’s interests,” including giving sufficient notice to your client and allowing time for your client to hire a new attorney.  Again, unless the imminent court date can be rescheduled, you likely do not have enough time to give your client reasonable notice if you are seeking to withdraw before trial.  Not to mention, your local jurisdiction’s rules may have different or additional requirements, including the requirement to seek leave from the court before withdrawing representation.

Lastly, keep in mind that whether or not you withdraw, you must avoid saying anything about your representation to the court, opposing counsel, or any third party that could disadvantage your client.  For example, if you move the court to reschedule the trial so that your client may find new counsel, you are not at liberty to badmouth your client to help sway the court (e.g., “my client won’t cooperate; “my client won’t let me help him”; etc.).  You must take all steps to avoid casting your client in bad light, keeping in mind any ethical or legal obligations you have to remain candid with the court.

Now – go forth and be ethical!

–  EE

*Disclaimer: “Annoyed Advocate” 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.

In our next post, Ethical Esquire will offer tips on managing client’s money.  An important issue indeed!

 

 

The Lady Lawyer: Monica Parham Part II

By Patricia Donkor

Hello Everyone!  Hopefully your year is off to a smooth start.  Like many of you, in the spirit of the new year, I recently attended a vision board party.  It was my introduction to vision-boarding.    I used to think the concept was, shall we say, cliché.  However, this particular party was organized by a legal network of black Lady Lawyers and therefore I was incentivized by the company, more than the concept.   However, my preconceived notions were unfounded.  I had a great time!

We enjoyed brunch and mimosas as we fellowshipped, flipped through magazines, and artfully designed our boards.  Because resolutions and “New Year, New Me” talk is so commercialized, I took for granted the value of goal setting and forecasting.   It was refreshing to listen to the other women as they discussed their plans for spirituality, family, and career.   I was reminded that there are women just like myself with similar goals, insecurities, and wishes.  That is one of the reasons for this blog – a space to learn something from women, like yourself, even if you were not expecting it.

This month’s blog is Part II to last month’s post.  If you haven’t had a chance to read Monica Part I, you can find it here http://gwacbar.org/2018/01/the-lady-lawyer-monica-parham/.  You will recall that Lady Lawyer Monica Parham, is a Diversity, Inclusion, and Talent consultant.  She spent twenty-one years at Crowell and Mooring, LLP, where she held positions ranging from Associate to Diversity Counsel.

Monica Parham

PD:  Welcome back Monica!  So, I wanted to begin Monica-Part II by discussing law firm attrition, particularly as it relates to minorities. A friend of mine, a black woman, recently left her second associate position at a large firm.  She candidly reported that she felt she was pushed out of both firms. Partners seemingly had their favorite associates, and she was not among the desired.  Few partners gave her work, making it difficult for her to meet her billable hour requirement.  Ultimately, she was told that she should look for a new position, but the firm would provide her with a favorable recommendation.  Do her experiences sound unique to you?

MP: Law firms are inherently attrition models.  Most still use a rough “pyramid” model:  You can’t have as many people at the top of the pyramid as you have at the bottom of the pyramid or your financial leverage is off.   That’s one reason why it’s hard for diversity initiatives to gain traction: you are trying to gain traction in a setting that is essentially based on pushing people out as you move up the pyramid.

Do I think that this is felt by minorities disproportionately?  Yes, because you have so few people of color to start with.  So, if you take away 1/3 from an entering class of 30, you lose 10.  However, as applied to the, say, 6 people of color in that class, it’s a different dynamic and it leads to the isolation and other factors that then feed into and accelerate attrition.   With a lot of other demographic groups, you start to see attrition accelerate at the mid-level stage.  For women of color, particularly African-American women, you start to see it operate pretty much from the get go.  By the time you are talking about partnership, the pool of African-American women is so small it’s hard to measure.

PD: You managed to stave off the attrition curse.   How did you pull it off?

MP: To some extent, I had blinders on.  I kept my head down and worked hard.  I was not special.  I was a little bit stubborn.  In hindsight, that was a double edge sword.    I was focused on doing top-notch work, which is what allowed me to move to Counsel.  However, I was not as focused on building relationship capital as some of my peers and that, ultimately, was not to my advantage.

PD: Did you tune out on purpose?  Was that your version of self-care?

MP: I think it was a form of perceived self-protection.   As a woman of color in a large organization one  can start to feel very lost.   You look up from doing the work and you realize that other people are going out to lunch and you are not being invited.  You realize that other people have gone to partners’ homes and are becoming personal friends and you are not a part of that friendship circle. So, at that point, the instinct is to kind of retreat into the work.  After a while, a not-so-virtuous self-reinforcing cycle starts forming where you react to isolation by further isolating yourself.  One key piece of advice is that while it may not always feel comfortable, but it is critical to focus on building internal relationship capital, reaching out and going on lunches, etc., even when it’s not what you’re feeling – and even when you may basically have to invite yourself.

PD:  After over a decade as one of very few black women attorneys at the firm, you became Crowell and Mooring’s first Diversity Counsel (“D&I”).  To me it sounds like you did not always feel like an insider during your time as an associate and Counsel, in part because of who you are and the way you were raised.  Considering this, was it uncomfortable to hold a job where you were having to discuss others’ implicit biases related to background, race, gender, and class?

MP: Well, it was invaluable that I had stayed on the practice side as long as I had.  I had been on the practice side 12 years.  I had been evaluated, done evaluations, seen most processes from both sides.  Part of what I brought to D&I role was a focus not simply on programming, but a focus on structural change, since I’d had an inside view of the structures because I had been part of them.  Even so, some things surprised me.

PD:  Like what?

MP: I think it was the naiveté among very intelligent people across the profession regarding diversity and inclusion.  For instance, the insistence on using the term “qualified minorities.”  Whether the speaker fully comprehends the meaning or not, the phrase implies that minorities are inherently not qualified – while the lack of such qualifiers with other groups implies that they are.    That, in turn, triggers a veritable domino effect of other biases such as confirmation bias that create tremendous headwinds for women of color.

D&I is hard, because you are engaged in change management.  You often can’t just say “you are just wrong.” You are often working with leaders who didn’t necessarily have with a lot of law school classmates of color generally, and who more broadly often have had very few Black women colleagues and personal friends through their own personal and professional journeys.   They may be grappling for the first time with how to address, on an institutional level, the issues that we’ve been dealing with on a personal level for a lifetime.   You have to build trust in order to close that gap before any change can begin to occur.  That’s one reason why I feel that dialogue –  in the old-fashioned sense of sitting down and actually talking and getting real about things – is a much more powerful instrument of change than “training” that allows everyone to check off a box (done!) but changes very little.  Yes, training is needed but without the ongoing dialogue the needle isn’t going to move.

PD:  Were there frustrations?

MP:  Every day it was something.  Life became a series of teachable moments.

PD: What outlets were important to you as Diversity Counsel?

MP: Within the context of wellness, lots of people talk about work-life balance.  With Diversity 2.0, I think of it more as work-life integration.  Work-life balance historically developed around the notion of women balancing work and having children.  There are any number of things, regardless of parental status, to integrate:  your professional life, spirituality and faith, community service, friendships, family (whether nuclear or extended, biological or not), exercise, diet, sleep – the list is slightly different for everyone.  These may shift in priority over time, but the key is to identify and integrate those things that are meaningful to you into your life.

PD: In one of our conversations, you mentioned that wellness is equally important in the conversation of diversity and inclusion and authenticity.  What role does wellness play in the authenticity conversation to you?

MP:  The wellness components of diversity and inclusion are often overlooked.  We talk about opening doors for various groups, including women of color, but we don’t talk about the physical and mental costs associated with walking through those doors such as less-than-healthy diets, lack of sleep, isolation, depression, and anxiety.

Maintaining one’s physical and mental well-being is absolutely critical to thriving as a Black woman lawyer, regardless of practice setting.  Too often, self-care in the form is wellness is one of the first things to go, when it should be one of the things that we never let go of.  I started working out with Black Girls Run because for me, I needed to integrate physical fitness in a way that was supportive and non-judgmental and yet with some accountability (because otherwise why get up at 5:00 on a Sunday morning to sweat through some miles?)  For me, the benefits are mental as much if not more than physical.  Honing one’s approach to wellness doesn’t require grand gestures:  whether it’s a 20 -minute morning meditation, a brisk lunch time walk, a standing Saturday morning hand-dance class or full-blown marathon training, whether it’s more mindful eating or a new approach to one’s diet find something that works for you, use that as a baseline, and build from there.  Your mental and physical well-being will benefit.  And, by all means, never be ashamed to seek professional support on the mental and / or physical side.

PD: I am first-generation American-born.  My parents hail from Ghana, West Africa.  I am also the first lawyer in my immediate and extended family.  I understand that that one issue that is dear to you is the intersection of women of color and first-generation issues.

MP:  There are many different “first gen” layers.  Being a first-generation American, first generation college graduate and first-generation lawyer are all “first gen” issues, but the contexts are quite different.  There are, however, some key areas of overlap.  Often, there are tremendous family expectations on first generation lawyers.   Your family identity essentially becomes as “the lawyer.”  Particularly in a first gen immigrant context your “community” identity might become “the lawyer” as well.  In each that identity, in turn, may come with an entire set of expectations regarding how lawyers talk, act, dress, etc.  – expectations that may or may not comport with your personal sense of authenticity.  It may also come with the “expectation” that you not only know but can and will offer free legal advice on everything from small business matters to landlord/tenant law to domestic relations/divorce.  Though it is hard, you have to take charge of that narrative, and define your role within these various contexts.   You also have to learn to manage expectations.  Too often, external expectations can keep people in places longer than they need to be because they are so afraid of letting their family down that they lose sight of themselves and what brings them fulfillment and gratification.

When I switched from litigation to D&I, my family was initially less than thrilled and asked why I had bothered to go to law school if I no longer planned to be a lawyer.  My response was that while I would no longer be practicing law, I would always be a lawyer.   In hindsight, I realize that the question was less about what I was actually going to do and more reflective of a feared perceived “loss” – of stature, of income, of gravitas, and fundamentally of identity.  Over time those fears were allayed, but such fears can create tremendous pressure on us, especially along any of the “first gen” dimensions. Honor your family, but know that honoring your family does not mean sacrificing yourself.

PD: There are so many considerations for us Lady Lawyers to navigate.  We have the considerations that are inherent to the workplace, such as understanding the firm’s culture and try to assimilate in the most authentic way you can for yourself.  Then you have the considerations of family and community and the pressures that come with that.  What do you think are common pitfalls that lawyers, particularly minority Lady Lawyers fall into?

MP:  I always tell people don’t let the profession define who you are.  People will ask “Do you think you are a certain way because you are a lawyer?” My response is “I am a lawyer because I think in a certain way.”  In other words, lawyers tend to be verbal, process-oriented, analytical, and good decision-makers.   Those are all very good things and they are qualities that I have, but those qualities don’t define who I am as a human being.   There are a lot of other things that I like, other things that I do and other ways that I define myself.

I also tell people that there is a difference between feeling discomfort and feeling pain.  When you are stretching and growing, whenever you move in a new direction, at any stage in your career, you are going to feel some discomfort.  That is very different from the “pain” of being devalued, isolated and generally being in an environment where you aren’t permitted to thrive.   It is critical to know the difference between the two.  Embrace the discomfort of having a stretch assignment. Organizations like GWAC are the safe spaces where you can massage out those sore spots and then, refreshed and renewed, grab those opportunities for growth.

PD:  Thanks so much for your time Monica! You had so many valuable pointers and we covered a ton of ground in your two-part feature.

Ladies, read more about Monica’s work here https://www.linkedin.com/in/monicaparham/.  Join us next month as we feature a new Lady Lawyer.  Also, feel free to leave comments for me, our guests, or with future feature suggestions.