The Ethical Esquire

By Maryam Hatcher, Esq.

Dear Ethical Esquire:  I’m having a labor issue that I’m hoping you can help with.  I recently hired a very experienced paralegal, and I asked her to handle some tasks while I was on vacation.  First, I asked her to deposit a settlement check made out to Client A into my firm’s bank account, which I will give to the client once I return from my 14-day Mediterranean cruise.  Second, I asked my paralegal to deposit a $5,000 retainer from Client B into my personal checking account for a matter I will handle when I return from my cruise (the matter will end up costing my client at least $30,000, so there is no way any of this cash will be returned to Client B after my representation ends).  Upon hearing my requests, my paralegal seemed concerned that I was inappropriately intermingling client funds with my own.  My question for you is: would it be unethical for me to fire my paralegal for insubordination?

– Big Boss Barrister*

Dearest Big Boss:  I will hold off on giving you my recommendation for your labor dispute while I tackle the client funds issue at hand because it is, as they say in modern day parlance, a doozy.

Let’s start with dearest Client A, for whom you seem to have helped secure a settlement of some kind.  Kudos to you!  But do you think it is correct to make your client wait to receive those settlement funds while you bask in the glow of the Mediterranean sun?  The ABA Model Rules of Professional Conduct don’t think so.  Specifically, Rule 1.15(d) requires attorneys to “promptly deliver to the client . . . any funds or other property that the client . . . is entitled to receive.”  There may be circumstances in which waiting 14 days to give a client his or her entitled funds may still constitute a “prompt” distribution of those funds, but I don’t think your vacation is a reasonable reason to make your client wait.

Also, you did not mention whether or not you were entitled to any portion of that settlement check, but you implied that at least some of it belongs to your client.  Per Rule 1.15(a), any funds that belong to your client must be kept in a separate account from your or your firm’s account – this is true regardless of how careful you are about keeping an accounting of which funds belong to whom.  For the brief time you hold on to a client’s funds that are owed to him, keep those funds apart from your own.

Next, let’s move on to dearest Client B, who has paid you up front for at least some of the services you will be rendering on his behalf.  Even if you’re 100 percent confident that you will end up using the entire retainer on legitimate legal services and expenses, you cannot put that money in your personal bank account to spend on vacation tchotchkes.  Rule 1.15(c) requires that you place yet-to-be earned legal fees in a client trust account, which you cannot withdraw until you have provided the corresponding legal services or accrued related expenses.  That money is not yours until you do the work to earn it – plain and simple.

Thank you for indulging me as I went on and on about a pesky little issue you did not even ask about.  While I offer no opinion on the question of whether it would be unethical for you to fire your paralegal for insubordination, I must say that I think it would be terribly unwise.

Now – go forth and be ethical!

–  EE

*Disclaimer: “Big Boss Barrister” 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 tackle the very serious issue of substance abuse in the legal community.


The Lady Lawyer: Michelle Bradford

By Patricia Donkor

Welcome Back, everyone! Thanks for tuning into another installment of the Lady Lawyer!  When I decided to become a lawyer, I knew two things.  One, I wanted to regularly appear in a courtroom.  Two, I wanted to work in criminal law because by the time I completed high school, so many of my childhood friends had come into contact with the criminal justice system.

So, when the late Brian Roberts, an enthusiastic Assistant Public Defender with DC’s Public Defender’s Service (PDS), spoke to a group of aspiring lawyers at my undergraduate school, Virginia Tech, I did what any anxious goal-oriented college student would do:I asked him for a job.  That summer I worked at PDS as an intern investigator.  I returned to PDS after my 1L year of law school as a law clerk. After completing a judicial clerkship, I worked as a criminal defense attorney at the Alexandria Public Defender’s Office in Alexandria, VA for a couple of years. I ultimately switched to civil litigation, but consider my years at the Alexandria PD’s office to have been some of best of my legal career. As a young criminal defense attorney, I had begun to develop ways of coping with the stress of the job.  I’m certain that I would have revised and perfected those strategies had my career progressed in that field.

This month, I wanted to talk to a Lady Lawyer in the criminal arena about her experiences, approach to tackling the stressors of the job, and general self-care considerations.  Meet Michelle Bradford.  She is an experienced Assistant United States Attorney (“AUSA”) with the District of Columbia United States Attorney’s Office.  Since 2006, she has tried over thirty criminal jury trials.

Michelle Bradford

PD:  Welcome Michelle!  So, tell me, where are you from?

MB: I grew up in the Bronx, New York.

PD:  Tell me a little about your upbringing?

MB: We were lower-class.  Until I was a teen, we lived in the projects.  The majority of people around me were African-American and on some type of assisted support.  My dad worked as a correctional officer at Riker’s Island, New York City’s Jail Complex.

PD: How did your upbringing influence your decision to become a prosecutor?

MB: There was always this dicotomy for me.  My father was Mr. Law and Order and a lot of my play uncles were police officers and detectives.  But, then there were my friends, from the streets, that hated the police and anything to do with law enforcement.  So, it was always challenging for me, growing up, to see both sides.  I knew my dad was a great person and so were his friends, but my friends were saying things like “f— the police.  They are pigs.” So, I think that was part of why I wanted to be a prosecutor, so that I could put a more positive face on the legal system for people.

PD: What did changing the perception of the legal system mean to you?

For me, because of my dad and the work he did, my focus was always on victims, particularly with respect to violent crimes.  For instance, my grandfather was a robbery victim.  I also had an interest in the witnesses.  I would hear people say “I’m not talking to them.” It was always puzzling to me.  Why wouldn’t you want to help catch the person that did this?  Why wouldn’t you want to be a part of the process?  Is it because you don’t feel like you are valued in the process?

I always felt like the prosecutor controls a lot and I would have more power as a prosecutor than as a defense attorney.  I do think that over the years that notion has been reinforced.  I am very proud of cases that I win but I’m also very proud of the cases that I dismiss.  I can keep the case from even starting if I think there is not enough evidence or if there are problems with the evidence.

PD: How did you end up in D.C.?

MB: I went to Georgetown Law.   But, I returned to New York afterwards and worked at a large firm where I was primarily doing document review.  So, I began exploring the idea of a clerkship.  I came back to D.C. for a two-year clerkship with Judge Reggie B. Walton of the United States District Court for the District of Columbia.  After the clerkship, I returned to the firm doing Labor and Employment defense work.  After two years, I joined the United States Attorney’s Office on the civil side.  I wanted more trial work and so I switched to the criminal side three years later.

PD: What rotations have you done on the criminal side?

MB: I’ve worked in Appellate, Misdemeanors, Guns and Drugs, Case Initiation, Domestic Violence-Felonies, and Violent-Felonies.  I then reached the point where I was able to apply for a senior section for a certain amount of time.  I applied to Homicide, where I was for three years.  Since 2015, I have been in the Fraud and Public Corruption Unit.

PD: What was your favorite rotation?

MB: Homicide.  I felt like I was getting to put to use the skills that I had developed as a prosecutor up to that point, both in terms of trial and investigation skills.  I felt I was giving a voice to victims that no longer had a voice.  I was working with witnesses that may not have wanted to be in my office, at trial, or involved with the grand jury process.  I tried to make them appreciate the significance of the process even if they did not like being a part of the process.  For me, it wasn’t about making them think the police were great, but instead making them understand how the system works and why we have prosecutors, defense attorneys, and trials.

I would explain to them that the system is not perfect, but we do our best to ensure everyone has their day in court, if they want it.  I met some of my most challenging witnesses, but I also got to improve my people skills.  It was definitely a very stressful time because the dislike some people have for police runs deep and you aren’t always aware of it.  They would call and curse me out.  They would call me a “b—-.”  They would say things like “go f— yourself Ms. Bradford.”  Those encounters definitely helped me develop thicker skin.  I would think to myself “Why don’t you like me, I am trying to figure out what happened.”  But for the witnesses, they have their own concerns.  They do not want to be killed because they talked to the police.  So, it required me to have an understanding of their perspective.   But, I also had to make sure that they understood my perspective.   

PD: How did you develop thicker skin?  I am sure being cursed out by someone that you were attempting to help was not easy.  How were you able to respond to that interaction rationally instead of emotionally?

MB: This was a process that started as early as my Misdemeanor rotation.  There were defense attorneys that would act rudely to me.  I was the new kid on the block and they would have the attitude of “I don’t have time to waste with you, just give me the plea.”  I recall at first thinking “Why are you talking to me like that?”  Coming from the Bronx, for me, I would think “What?  You are really coming at me.”  But, for me it helped to talk to my colleagues and then my supervisor after an experience like that.  It required taking a step back.  Being able to think through situations is probably one of the greatest skills a lawyer has.  I had learned a lot of that while handling misdemeanors.  On that calendar, there were times when I was getting insulted by defense counsel, my own colleagues, and judges.  You are literally taking it from all sides.  But, I had to remember that this is about the process, not about me.  I am not going to take it personally.  I am not incompetent just because the judge said that I am.  I know that I am smart.  I know that I am capable.

PD:  Wait, a judge has actually called you incomponent or something similar?

MB: Yes.  While every judge is different, many of them felt like all of us AUSAs were fungible.  Judges would essentially say: “Okay, you can’t do it, fine, go get another one of you.”   I’d have to explain, “well this is my case, so I need to be here.”  I would have to step back and realize that everyone can have a bad day and that there was no need to make their problems my problems.

In the beginning, there were times where I would have to go into the bathroom, for instance, and take deep breaths.  After a while, if a judge would say something I may say something like “I’m sure your Honor did not mean to disrespect me when he called me ignorant, but if I can just explain the situation.”  Some of them would respond “I don’t want to hear it.”  But others may actually apologize.

I developed thick skin by being subjected to difficult situations and realizing “well, what are you going to do.”  As I matured through the rotation, I learned this.  By the time I got to the Homicide rotation, I had been cursed out by multiple victims and witnesses.  My philosophy is you can cry about it, but no one cares, and I’m not going to cry in court anyway because that would make me look crazy.  So, you just deal with it.  I would say that the biggest thing for me is to leave “work” here at the office.  I try not to take it home with me.

PD: How many of your defendants are black?

MB: Not sure of a number, but the majority.

PD: Having come from a predominately black environment did the defendant’s race make the job uniquely difficult for you?

MB: No, because the victims were almost always black too.  Minorities are often committing crimes in their own areas.  It is rare, in my experience, that they are going into other communities to sell drugs or commit some other crime.  I am an advocate for defendants too.  The opposing side may not always realize what is happening behind closed doors in my office regarding their case.  For example, when there is a case that does not meet our standards, I can dismiss it. I go in and fight for pleas proposed by defense counsel when I really believe that the situation warrants that plea.   When we feel that we cannot prove a case beyond a reasonable doubt, I have had supervisors say, “let’s close it out, dismiss it, or let’s continue to investigate.”  The people in this building want to do the right thing.

PD: Let’s talk about dealing with difficult opposing counsel.  What tactics do you employ to ensure you are able to work with counsel, in the future, after having a really contentious experience with someone?  For example, do you subconsciously put that person’s case to the end of the list when you are answering discovery?

MB: The most uncivil attorneys that I dealt with were on the civil side, plaintiff’s counsel.   I’m talking attorneys that were rude, would scream, and engage in unethical behavior at depositions.  I have not had that experience with the defense counsel, including local PDS.  They may not particularly like us, but I have been very impressed by their level of advocacy.  So, I would never say, “your client is not going to get discovery on time because you are so rude.”  That is not going to benefit anyone.  In the end, that would come back on me and I would be in front of the Office of Professional Responsibility and Bar Counsel trying to explain why I did not turn over this or that.  So, I’m only hurting myself if I do not turn things over.

PD: You mentioned that one big thing for you is to leave “work at the office.”   To me that is easier said than done.  Were you always able to leave things at the office or did you get there at some point?

MB: I got there, more so, when I got married.  Before I got married, my trend was to work in the office very late.  I also would hash out things with my colleagues.  Then, I would go home and continue to think about things.  I would say to myself “Why didn’t I say this?  Did I turn over that document?  It’s 2 a.m., should I go back into the office to check on that one thing?”  Thankfully, my husband is not a lawyer.  Early on in our relationship, he told me “When you are with me I want you to be with me.”  That was a good rule.

PD: When you had your first homicide cases, how were you able to suppress the emotion associated with those cases?  You were probably reviewing graphic autopsy photographs.  How were you able to block that out of your mind?

MB: I can’t say that I never thought about them.  I just made a conscious effort not to discuss them.  While watching a movie, I may see a murder scene and think, “wow that is similar to what happened in one of my cases.”  I may think about it internally, but I don’t obsess about it.  I think that is normal that something may come to you, in your home life.  For me, if that happens, I may jot a note to myself that says “check on that on Monday.”  However, I am not ruminating about things.

PD: Tell me about your current position with the Fraud and Public Corruption Division.

MB: There is a lot of investigating.  I am investigating white collar cases from scratch.  I still have the ability of steering the investigation in the way I want it to go.  In many of my cases, I am resolving the question of whether a crime occurred.  With these cases there is usually a paper trail and my job is to investigate the reason behind the paper trail.  “Were you stealing from the company or is there a legal justification for the paper.”  The work is interesting.

PD: We are in a time right now where there is a lot of talk about public corruption.  We are hearing it a lot in the context of the current President’s Administration.  For example, this week, the memo by House Intelligence Chairman Devin Nunes is dominating the news cycle.  When this article is published, it will be something else.   How does the media’s discussion of public corruption issues or other topics that are similar to your own cases impact you?

MB: It doesn’t.  I know as much about some of these issues, such as the Nunes memo, as you do.  A component of self-care is to know what your battles are and what to take on.  If I were to become personally concerned with every allegation that comes out of the White House, I would be a basket-case.  I cannot do anything about the things that are happening or being said.  I am not working on those matters.  I try to educate myself so that I know what is happening and if there are mistakes that are being made, I can say, “Don’t do those things in your cases.”  Even though fraud and public corruption is very big right now, I have to focus on the cases in front of me.  Being in this role does not give me some special vantage point.  If I were to take on those things, I would never get anything done.  I could spend all day on CNN, NPR, etc., just trying to keep up with the latest.  If there is corruption it will be brought to light, if not it will go away.  I educate myself, but I don’t take it on.

PD: Do people in your personal life solicit your opinion on these sorts of matters because of your line of work?

MB: No, people that know me know that I do not want to talk about law.  My dad comes to visit me, and he likes to talk politics.  However, my friends know that I don’t.  We talk about things like our families and career.

PD: I understand that you are a mother of two now.  How did becoming a mother impact your self-care?

MB:  Having a little one has been one of the best forms of self-care for me.  It made me realize that it is not all about me or what we do in our offices.  What really matters is who we go home to, who we love, whether it is your dog or significant other.  That is what really matters in life.  Specifically, having my daughter at home and then getting pregnant with my son while I was working the Homicide rotation.  I know some people have children, yet still work around the clock.  That wasn’t my case.  Having my children was self-regulating for me.  I can’t talk about a murder with my kids around.  When we go out to the museums or aquarium, I don’t want to be thinking about that.  I want to be in the moment.  I want to enjoy it.  I know when they grow up, they will be gone.  For me, having a family gave me an outlet.

PD: Do you have any other self-care outlets?

MB: Several.  For one, I work out 5-6 days a week.  I can play Biggie Smalls or whatever music I want to hear and I do not think about work during that time.  Every morning, I try to get up around 5 a.m. or so and I try to work out for an hour.  If I cannot, there is a gym in my office building.  If I do not work out, I feel it. I am tired.  I’m stressed.  I need coffee.  On the days that I work out, I often do not need coffee.  The workout is natural adrenaline for me.

Another outlet for me is I volunteer as a board member with CAP (“Center for Abused Persons”). It’s a nonprofit in Maryland that provides support to victims of domestic violence.  I am a member of Top Ladies of Distinction (“TLOD”) and do a variety of other volunteer work (from mentoring teens to visiting nursing homes to cleaning trash off the roads in Southern Maryland). I’m an Inn of Court member and I’m on the board of my daughter’s school PTSA.

PD:  Wow and I thought that I was busy!  This has been a great conversation.  Keep up the good work and thanks so much for your time Michelle!

Ladies, read more about Michelle here 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.