The Ethical Esquire

By: Maryam Hatcher, Esq.

Dear Ethical Esquire: Becoming a lawyer has always been my dream.  Ten years ago, that dream came true.  Now I am a junior partner at a mid-size firm with my own roster of very demanding clients.  Meanwhile, some other dreams of mine have also come true – I’ve gotten married and my spouse and I have started a family.  Between working all day, parenting all night, and handling firm and family obligations all weekend, I feel like I’m not showing up 100% in any area of my life.  Not to mention the fact that I never have time to take care of myself.  Despite my plate being completely full, I nonetheless feel pressure to continue taking on new matters at the firm so that I can maintain my partnership stake and make a name for myself.  The most recent project I’ve taken on has a client deliverable due next week, and I’m starting to think there are literally not enough hours in the day for me to handle it while also fulfilling my numerous other obligations.  Is it unethical for me to keep taking on work when I know the quality will start to suffer over time?

– Burned Out Barrister*

Dearest Burned:  Sit down, close your eyes, and take a deep breath.  And another deep breath.  Now one more.

There.  I suspect that you have not indulged yourself with three uninterrupted deep breaths in a while.

First, let’s get to the heart of your legal ethics-related question (after all, that’s what I’m here for).  One of the very first rules in the ABA Model Rules of Professional Conduct, Rule 1.1, discusses the requirement of competent representation.  Under the Rule, competence includes “thoroughness and preparation,” both of which require that the lawyer taking on the matter has sufficient time.  So if you know that your work is coming in at a pace too fast for you to prepare and thoroughly execute your work, then you need to step back and assess how to better manage your workload.

Second, even if you are able to maintain the threshold competence required under the Rules, your overloaded schedule may be impeding your ability to do a stellar job.  It’s not just important to keep your license, but you want to make sure that you continue to have a strong reputation as an excellent attorney.  Sometimes that means taking fewer assignments or better delegating your responsibilities.

Lastly, you must take care of yourself.  Your physical and mental well-being have to be paramount in your life, and that sometimes means responsibly (i.e., in a manner that does not violate your ethical obligations) tuning out your work and attending to yourself.  It’s impossible to be a competent attorney with a reputation for exceptional work if you perpetually neglect your personal needs.

 

Take a few more deep breaths.  You got this!

Now – go forth and be ethical!

–  EE

*Disclaimer: “Burned Out 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.

Lady Lawyer: Marcia Olivia Wright (Part I)

By: Patricia Donkor

Thanks for tuning into another installment of the Lady Lawyer.   Many professional women spend a great deal of time curating their outward personas.  For some, it’s important to be perceived as satisfied with their careers, happily in love with their significant other or purposefully single, financially secure, and the list goes on.  While appearing to have it all behind the scenes, some hate their jobs, are falling in and out of love, taking care of sick loved ones, and various other personal tribulations. It’s one thing to recognize that you are unfulfilled, but knowing how to change course is a different feat.  Change can be scary.  Failure can be equally crippling.  So, some live a lifetime pretending to be content.  Some are forced into change.  And some garner the courage to take control of their lives and do things differently.

This month, I feature Marcia Olivia Wright, Esq.  Marcia, principal attorney of Wright Law & Advocacy, is a Virginia and Washington, D.C. lawyer by day, and by nights, weekends, and whenever else time permits, she is owner of a boutique culinary business, Sweet Mossie’s.  She also helps to run the Womanhood Training Rites of Passage Program based in Washington, DC.  Marcia believes that mentoring teenage girls through the Womanhood Training Program is one of her life’s best works.

Today, Marcia’s law practice and culinary business are both flourishing.  However, it took a journey and an awakening to the importance of self-care and authenticity to bring her where she is today.  She candidly spoke to me about her exploration.  Our conversation was so vast and raw that I will feature Marcia in a two-part series.  Check out Part I of my interview with Marcia, below.

PD: Marcia, tell me about yourself.

MW: Where do I begin? I’ll start with the basics. I was born in DC and raised in Arlington, VA. I graduated from Yorktown High School. I earned my undergraduate degree at Spelman College in Atlanta, Georgia in 2000, and my Juris Doctor at The Catholic University of America, Columbus School of Law in Washington, DC in 2003.  I have been practicing law, amongst other things, for about 15 years.

PD:  When did you decide you wanted to practice law?

MW:  It wasn’t necessarily something that I knew innately.  At an early age, due to my demanding, brainy and inquisitive personality, my family always told me that I would be a lawyer or a preacher. Because I heard this over and over again, and figured I was too much of a wild child to preach, being a lawyer is what stuck with me.  If I were to do it all over again, however, I doubt if I would make the same choice.

PD:  Really?  When did you realize that?

MW: Honestly, I think that very early on in my practice I thought “this does not feel like I thought it would feel.”  But, at the time these feelings started to surface, I was neither bold nor confident enough to do something different.  My very being was attached to the title “Attorney”, so I decided to continue to make it happen regardless of how it felt in my body.  Now that I am in a totally different space in my life and womanhood, the goal is simply to be great. If I could reconstruct my life without the influences of others, however good intentioned, I just don’t know if law would have been my path.

PD:  So, walk me through your journey a little.  What did you major in at Spelman?

MW: I was a Sociology major and a Mathematics and Spanish minor. In other words, I was totally confused (laughter).

PD: When you started undergraduate school did you know that law school would be next?

MW: Yes, that was the goal, but in retrospect going straight through is another regret that I have.

PD:  Did you have a concentration during law school?

MW: I fluctuated between a lot of areas.  I went to law school thinking I would focus on International Business.  I had studied abroad in undergrad and I liked the whole international thing.  But, as I matriculated through law school, my interests changed…often and a lot.  There was a time that I was into entertainment and trademark stuff.  I participated in the General Practice Clinic, where I focused on family law.  I worked for Ayuda, which is a non-profit organization in Columbia Heights, DC. There, we provided family law and immigration services to the Latino community.  I also had an interest in environmental law issues and took a few classes in this area.   I even pursued the healthcare law concentration for a period, where I learned about laws relating to bio-ethics.

So, I spent time exploring just about every area of interest to me, to include family law, which is what I practice primarily now.  Because I didn’t have work experience outside of being in undergrad, I had no idea what I wanted to do.  I just knew the classes I was drawn to and went with that. I competed in Moot Court, and was darn good at it, so at least I knew I wanted to litigate.

PD: What was your first job out of law school?

MW:  I worked on one of the major tobacco litigation cases with the Department of Justice (“DOJ”), performing document review and other discovery based work.  It was simply a place-holder pending Bar Exam results, and while I figured out where I was going to work.

PD: Where did you go after?

MW: I don’t believe I even finished the case at DOJ, because I was hired by a firm in Old Town Alexandria, Virginia.

PD:  When you accepted that position, did you have a better idea of what you wanted to practice?

MW: Well, at the firm, one partner’s practice was primarily high-level federal and state criminal matters, and the other partner had a very heavy civil practice in D.C. Superior Court.  So, my ground training was handling those types of matters in D.C. Superior Court and the United States District Court for the Eastern District of Virginia, Alexandria Division.  When the firm decided that they wanted to diversify, I was able to rely on my work in Family Law, and began to bring in family law cases.  So, I started the firm’s family law branch.

PD: How long were you there?

MW: About 3 to 3 ½ years.  I left to start my own firm.

PD:  People start their own law practices at different points in their careers and for various reasons.  What made you start your own practice when you did?

MW:  I met a young lady that just finished up at Howard Law.  She and I turned out to be kindred spirits. She initially came to me for mentoring because she was going to take the Virginia Bar Exam. The more time that we spent together, the more we realized that we were aligned in our ideals and goals for the practice of law.  She wanted to work for herself, and I was getting exhausted with firm life.  Also, I grew up in a household where entrepreneurship was the standard.

So, the notion of starting a firm with another young black woman that was 1) just as smart as I was (she might be even smarter); 2) a member of my sorority, Delta Sigma Theta, Incorporated, of course; and 3) who wanted to practice in the geographical area where we both were raised, was extremely appealing to me.  I already knew how to run a firm because the firm was gracious enough to give me plenty of opportunities to learn how to do that. So, we made it happen.

PD: Did any self-care or self-preservation considerations influence the decision?

MW: At that point, I was still in my 20s, I think I was 28.  I don’t think that at 28, I was interested in the notion of self-care.  I was more so interested in the grind and even the public appearance of what it would look like to be this young lawyer with her own law firm.

PD:  That is interesting.  I met you years ago, when I was in law school and you were a lawyer that volunteered to assist our mutual friend, Chidi James, coach my trial advocacy team.   You have always come off as someone that walked to her own drumbeat.  But, hearing you say that you did not fully know who you were reinforces the adage that appearance is only one perception.

So, the law firm that the two of you created was Walker Wright, correct? Describe the law practice?

MW: I mostly handled family law matters, some criminal matters and I did a little Guardian ad litem work.  I was also heavily involved with entertainment law.  There was a band that I was quasi managing and doing a lot of contract work for.  In addition, around 2007, I started working for an arts organization called Silver Star Arts Studios (“SSAS”) that consisted of mainly big firm lawyers, from across the country, who worked together to find raw, artistic talent, in the realms of music, fine arts, graphic design, and literary. I worked with SSAS for about three years.

PD: How did you get involved in that?

MW: Two of my friends from Spelman were Assistant General Counsel and asked me if I was interested.  I interviewed with them and initially started off as a Director of Public Relations.  I eventually moved to the role of Assistant General Counsel. I worked with artists, of all types, all over the country.  I worked on contracts, performance agreements and even setting up live exhibits for artists.  Working with SSAS in my various roles helped me in my work with the band.  This was basically my way of adding fun to the otherwise stressful practice of law.

PD: How long did you have Walker Wright?

MW: We started our practice in 2006 and my business partner left around 2009.  She got married to a wonderful man and became a mother to two beautiful children.  So, for her, self-care meant starting a family.  I have been on my own since 2009.

PD:  The band that you worked with was a go-go band based out of Washington, D.C., right?

MW:  Yes. It was a rock/alternative band based out of D.C. that incorporated the indigenous sounds of go-go in their original music.

PD: So, you stated that starting the law firm was not a decision based in self-care; did there ever come a time when you began to make career decisions out of self-care/self-preservation?

MW:  I would say that my choices had very little to do with the practice of law and more with how life kind of happened.  I got engaged in 2006.  In 2007, I was planning a wedding.  I ultimately did not marry that person.  That same year, my father, who I was very close with, got sick.  For six-months, or more, I was caring for him.  I have a large family — nine siblings.  We took turns being caretakers.  However, I was the one most accessible during the day because I worked for myself.  I could be in court and would get a phone call from my dad’s nurse I would step out to take the call and my father would be on the other end asking that I come and assist him with something.  So, my dad’s illness began to shape my priorities at that point.

As he began to die, practicing law lost its importance to me.  I lost interest in being involved in local bar associations.  I began to develop more of a thirst to be authentic to who I was. Still unsure of how to express that or even what that looked like, I became more drawn to the aspects of law that gave me joy.  Hence why I jumped into the “management” role with the band.  I was supposed to be practicing law and managing a firm, but instead I was on the road going to shows. It was quite ill-advised, but it sure was fun and a much-needed respite.

PD: Was the work with the band more fulfilling to you than the traditional practice of law?

MW:  Let me give you a little background.  I worked with the band from 2007 until about 2012-2013.  I wasn’t managing the band at first, I was helping them negotiate a deal.  Then they severed their relationship with their manager and there was a gap in coverage of the management duties.  I never really called myself their manager, but I ended up taking on roles that were like a manager such as booking their shows, which was far beyond what I should have been doing as a lawyer.  I got caught up in that because it was a break in the busyness of a family and criminal practice, and the mental break that I needed from having just lost my father.  I think that losing my father helped me look in the mirror and for the first time in my life begin to ask the question, “who are you?”  I was the first in my family to do most things, so, everyone had these expectations of me and who I was going to be.  I was their golden child.

PD: How did this golden child stigma affect choices that you made?

MW: I didn’t want to be the golden child.  Unlike some of my siblings, I am very much a non-conformist.  I am very unique and creative before anything else.  I have this academic side of me, yes, but I also have this very wild gypsy creative part of me too.  I don’t think that I ever felt empowered to embrace the part of me that was wild and creative because that girl did not meet the expectation of what the professional, smart, Spelman-grad Marcia looked like.

PD: Do you feel like you were using the creative side of you before this point in your life or had you been completely suppressing it?

MW: There were aspects of my life that I tapped into outside of work, such as writing. I spend a lot of time writing.  But I did not hone into all the intricate parts of who I was, that to me now are equally as fabulous as Marcia the lawyer.  I didn’t embrace them.   The funny part is, anyone who sat down and talked to me, realized very early in the conversation that being a lawyer was just a very small aspect of who I am. I had to speak at an event recently.  I told the audience that I consider myself to be a fisherman of men (and women).  I walk into a space, no matter what that space is, and something about my energy invites and invokes people to reach back into themselves and truly discover what is authentic and divine.  It’s the spirit of Sankofa. I wasn’t ready for that level of dialogue at 25 or 26, when I first started to practice law.  It didn’t seem to have a place in the field and I struggled with it, but eventually arrived at a place where I didn’t have to struggle with it anymore. I was set free. I was able to find the place in the practice of law, and in life, where I could bring my whole self to the table.

PD: When did your father pass away?

MW:  He got sick in June of 2007.  He died February 16, 2008.

PD:  Do you feel that losing your father was the catalyst to the beginning of your self-discovery as a lawyer and a woman.

MW:  Absolutely.  That was the catalyst without a doubt. Transitions invoke other transitions, if you are ready.

In Marcia, Part II, we will pick up with Marcia telling us about her awakening to self-discovery and how that impacted her law practice, personal life and how those episodes prepared her for the woman and lawyer that she is today.

While you wait for Part II, you can read more about Marcia and her culinary company Sweet Mossie’s by clicking the below links.

http://www.wlalegal.com/marcia-wright/

http://sweetmossies.com/

 

The Ethical Esquire: Avoiding Ethical Concerns When Transitioning Jobs

By: Maryam Hatcher, Esq.

Dear Ethical Esquire: I recently left my job in private practice to work for the government.  I love my government job, and the experience I gained at my old firm is really helping me understand the issues that arise in my new cases.  The problem is, now that I work for the government, I find that I am most often advocating for the exact opposite position that I used to take with my clients in private practice.  I know that I have duties to my former clients and I want to live up to those obligations, but I don’t want to find myself conflicted out of every new case that comes my way because the general argument is adverse to one I took with my previous clients.  How do I find a good balance?

– Happy Government Lawyer*

Dearest Happy:  Congratulations on your new position!  I am glad to hear that you are enjoying your new job and even more glad that you have given your duties to your former clients some real thought.

Transitioning between private practice and the government is common, and many times new government lawyers find themselves on opposite sides of the issues they dealt with while at their former firms.  There are many ethical challenges that may arise in this situation but, never fear, you can competently perform your new role for the government without failing your former clients.

First, you may be able to take legal positions that are adverse to your clients under certain conditions.  However, per ABA Model Rule of Professional Conduct 1.9(a), the matter cannot be “the same or a substantially related matter” to the one in which you represented your client.  The comments to this Rule clarify that matters “are ‘substantially related’ … if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  Thus, merely taking a position that is different than the position you took on a client’s behalf on a completely unrelated matter will not necessarily invoke the rule.

Also, as was touched on in the above language from the comments to Rule 1.9, the ABA Model Rules forbid you from using confidential information you gained from a former client to support your position in a later case.  Specifically, Rule 1.6 says you cannot reveal confidential information you gained through the representation of your client except for certain enumerated reasons, none of which is you getting a new job in which that information would be helpful.  This is true even if the new matter is completely unrelated to your representation of your former client.

Keep in mind that, with your former client’s informed consent (which you should memorialize in writing), you may be able to take an opposite position in a matter substantially-related to your former client’s matter and use your former client’s confidential information to do so.

As always, check your jurisdiction’s rules and other guidance to ensure that it comports with the above.

In a nutshell, Happy, you have to toe the line when it comes to working on matters closely related to your former client’s matters or when dealing with your former clients’ confidential information (unless you get your former client’s written, informed consent).  But that does not prevent you from taking legal stands that are counter to the one’s you took in private practice.

The law is rigid, but not that rigid.  Sheesh.

Now – go forth and be ethical!

–  EE

*Disclaimer: “Happy Government Lawyer” 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 her final post of the year, Ethical Esquire will discuss how the issue of work-life balance plays a role in meeting your professional responsibility obligations.

 

 

Lady Lawyer: Vernida R. Chaney (Part II)

By Patrica Donkor

Hello everyone!  Thanks for tuning into another installment of the Lady Lawyer!  I’m so excited warm weather is finally here!  One of my goals for the year is to participate in more speaking engagements.  So, I am excited to be speaking at the International Municipality Lawyers Association (IMLA) conference in a couple of weeks.  It will be my first time presenting a CLE.  There is something about the idea of speaking to a group of lawyers that makes me nervous.  Wish me luck!

If you tuned in last month, you will recall that I spoke with Vernida Chaney, criminal defense attorney extraordinaire.  There, she and I discussed her experiences as a Fairfax County Senior Public Defender (PD) and Capital Defender, and some of the self-care considerations that she grappled with in those roles.  This month, is a continuation of that discussion.  Vernida, who established her own law practice three years ago, and I will explore the decisions that preceded this venture, as well as tackle the decisions she continues to face as owner of Chaney Law Firm.

PD: Welcome back, Vernida!  Tell me, how did you know it was time to leave Fairfax County Public Defender’s Office (PD’s office) office and establish your own practice?

VC: I loved being a public defender; however, I always knew I wanted to either head up my own PD’s office or start my own law firm.  I decided it was time to step out on faith and chose the latter. Over the years, I had learned a lot but I was eager to explore other aspects of law, mainly federal law.  Therefore, by going into private practice, I am able to represent clients in both state and federal courts,  which offer a nice variety of cases.   

PD:  I see.  So, at that time, you felt that you had reached your full potential at the PD’s office?

VC:  Yes.  I had learned a lot and gained invaluable experience, but everyday is another opportunity to learn something new.  I wanted an opportunity to work in the federal system and explore different practice areas, like personal injury.  The Fairfax Public Defender’s Office only handled state criminal cases.

PD:  Was speaking to people important to you as you began to seriously think about starting your practice?

VC:  Absolutely!  Before I decided to start my own practice, I consulted with dozens of people, including former public defenders, about going into private practice.  Everyone I spoke with was very generous with their time and advice.  They gave me so many tips and resources, including things to avoid.  For example, one piece of invaulable advice was to keep my overhead expenses low for the first few months of starting a new law firm.

PD: Makes sense.  Okay, tell me about the planning process for starting your own practice.  What did that look like for you?

VC:  Before I left the PD’s office, I began to set things up.  First, I told my boss at the PD’s office that I was planning to leave about six or seven months prior.  Over my last four or five months there, I began to move things into place.   I took various training classes and Continued Legal Education (CLE) courses on the new areas I wanted to explore, such as federal criminal law, family law, and estate planning.

PD: Did you do anything else?

VC: I read a lot about starting a law practice.  I wanted to avoid many of pitfalls that attorneys experience when leaving the public sector for the private sector, so I took time to educate and prepare myself.  I also consulted the Professional Rules of Responsibility and Virginia State Bar to make sure my practice complied with the ethics rules.  Additionally, once I made the decision to start my own law firm, I began telling people, especially other lawyers.  Most of my first cases came as a referral from other lawyers.  To this day,  many of my clients still come from referrals from other attorneys, who have confidence in my work and skills.

PD:  How did you decide what you wanted to do about office space? In Virginia, you don’t actually have to have an office.  You could identify your home address or even a P.O. Box as an “office” for recordkeeping.  Considering you wanted to keep costs down, was having a physical office important to you?

VC: I spoke with a lot of attorneys about office options, too.  You’re correct; you are not required to have a physical office in Virginia.  I know many attorneys who do not have a private office but instead work from home and meet clients at the courthouse or other meeting locations.  Over the past few years, many attorneys have taken advatange of virtual offices which provides them the flexiblity to rent office and meeting space on an as-needed basis.  Both options are excellent for reducing overhead; however, I was used to working in a physical office and wanted to establish a permanent presence with my firm.  My office is located across the street from the Fairfax County Courthouse.  The cost for the space  is  a business expense I personally feel is necessary for me to have a place that is comfortable for myself and my clients.

PD:  Now that you have been out on your own for a couple of years and have seen a bit, can you think of any common, yet unnecessary, purchases by people opening their own practices that you strayed away from?

VC: Yes, office space. Office space can be the biggest monthly expenditure so people starting their own practice should fully consider all options before making that financial commitment.  Although, I considered other options, for me, it made the most sense to have a permanent physical office for my practice.  Besides having a nice office close to the courthouse, I also found that I needed a work space outside of my living space to handle complex trial litigation.  In the type of cases I handle, I often receive boxes of discovery from the government.  Having an office separate from my home provides me with a place to review and store a mass of files and documents. Additionally, I have work and conference rooms at my office that others can use to assist me.

PD:  Sounds like your decision to wait on the permanent office space was a form of self-preservation.  Are there any other wasteful expenses that you can think of that you consciously avoided?

VC:  Yes.  Other things that a lot of people spend money on right away, which may not be necessary, are websites, optimization, and branding.

PD: What is optimization?

VC: Hiring companies to increase your placement on search engines is an example of optimization.  There is definitely a benefit to having your law firm appear first or second in a web search when a potential client is looking for a lawyer; however, I decided against spending money on this.  I knew from having left the PD’s office that I did not want to have a volume practice.  Instead, I decided to focus on procuring the right clients and not on being first on the list of a Google search.

PD: Have you seen people take on more than they can chew?

VC: Definitely. Starting a new practice can be overwhelming, both professionally and financially.  Many people take on cases they may be unprepared to handle just to pay the bills.  I chose not to do that and only handled cases and clients I could properly serve.

PD: Any other common pitfalls that you knew were not conducive to how you wanted to enter private practice?

VC: Yes, hiring unecessary full-time staff. As attorneys, we must delegate a portion of our admistrative tasks so we can focus on representing our clients.  However, attorneys should be cautious in delegating specialized tasks to staff and create a monitoring or checks system to ensure those tasks are done properly.  Also, attorneys should consider the cost and productivity of the staff to assess whether the investment in human capital is worth it.  My business background requires me to think of things like return on the investment.

PD:  So, do you use any support staff or do you do everything on your own?

VC:  Yes I do. I cannot do everyting on my own.  Using assistants, paralegals, and interns have proven to be vital for me.  They help me with client communications, research, discovery review,  and the like.  I also use courier services to pick up/drop off items and a transcriptionist to save time.

PD: In the beginning, did you have to decide how much money you wanted to make versus how many cases you wanted to take on?

VC: I made a conscious effort that I would not take everything that comes through the door.  I would only take what I could handle.  Also, I decided that I was not going to overextend myself.  That meant that I had to turn down some cases.  I knew it made sense to focus on what I knew, so that I would not have to worry about the learning curve if I ventured into an unfamiliar area.  The times that I did venture into new things, those cases were  ancillary to criminal law, such as grand jury witness representation, protective orders, school disciplinary hearings, et cetera.  I think setting those parameters early in my practice have served me well.

PD: I am curious about this decision.  I can see someone just starting out and being tempted to take on as much as they could, especially when they go from a steady income to having to generate income.

VC: So can I, but I didn’t do it.  I just stuck to what I knew. I’m a firm believer in staying in your lane.

PD: You are your own boss.  How did you determine what your work schedule would be?

VC: I don’t necessarily have a set schedule. I usually work Monday through Friday during traditional work hours either in my office, at the jail, or on the road.  I also work nights and on the weekends, as needed.  If I am not able to meet with a client during the day because of court or other obligations, I will meet with them in the evening.  I also tend to spend a lot of Saturdays at the jail visitng clients.  Flexibility and balance are important to maintain when operating your own law firm. For instance, when I finish a big project, I try to take a bit of time off before I move on to the next big project.

PD:  You mentioned that you informed people that you were opening your law practice before you left the PD’s office.  How was business in the beginning?

VC: When I first began, I had a lot of downtime which was much-welcomed as it allowed me time to focus on establishing a strong foundation for my private practice. During this time, I continued to explore legal topics relevant to criminal defense as well as wrap up any administrative obligations the firm had or would soon need.

PD: Another decision that I think falls under the category of self-care/self-preservation when starting your own practice is partnering with other lawyers.  Did you consider partnering with anyone?

VC:  I did.  A few people solicited me for partnership.

PD: Why did you decide against partnering?

VC:  It was a hard decision.  I was approached and had conversations with several great attorneys who I admire.  At the time, I knew I could benefit from a partnership; however, I felt the better option was to establish myself first.

PD: You did not partner, but do you collaborate with other lawyers in any way?

VC: I do, often.  I have a group of lawyers that I work well with.  We share cases.  We refer cases to one another.  I cannot say I will never partner with anyone, but it is something to weigh very heavily before doing.

PD: You mentioned taking downtime in between big projects. What else do you do to clear your mind?

VC: After my most recent trial ended a couple of weeks ago, I travelled  to visit my sister.  After another big trial last summer, I vacationed at the beach for a week.  I need to have downtime.  My happy places are anywhere there is water and a beach.  I take advantage of these getaways whenever I can.  It’s relaxing to get away from work and deadlines. It helps me to balance the demands of running my law firm.

PD: Describe the vision that you have for your practice, as far as Vernida is concerned.   What do you want your practice to look like, for you, mentally?

VC: I am blessed to have a good practice and great clients that trust me to handle their cases.  This work is hard and can be very unpredictable, so it is important for me to take things in stride and stay composed no matter what obstables may come.  My vision for myself is to stay on this path I’ve already established so that I may continue to give my clients highly-skilled and ethical representation.  Also, I will continue to steadily grow my business and, maybe at some point in the future, have a full-time staff and perhaps a partner.

PD:  Thanks Vernida and congrats on the success of your firm!

VC: Thanks Patricia!

If you want to learn more about Vernida, visit her on LinkedIn at https://www.linkedin.com/in/vernida-r-chaney-b9899045

The Ethical Esquire: Substance Abuse in the Legal Community

The Ethical Esquire

By: Maryam Hatcher, Esq.

Dearest Readers:  I am best known for my unparalleled wit and profound ethical reasoning (at least that is what I think I should be known for), but I will forgo offering solutions to the ethical quandaries of fictitious advice seekers this month, and instead discuss an issue that is no laughing matter: substance abuse in the legal community.

While substance abuse is a widespread concern in the United States, it is particularly prevalent in the legal community.  The stress and hyper-competitiveness that law students face as they earn their JDs, often leads them to turn to illicit substances to assuage tension or abuse prescription drugs to increase academic performance.  A 2016 study found that 20 percent of lawyers felt that their substance use was problematic, with most of them reporting that their problematic use of those substances did not start until law school.

Unfortunately, substance abuse in the legal profession increases once students leave the hallowed halls of their law schools.  One study from the 1990s reports that 18 percent of attorneys abuse alcohol, as compared to 10 percent of the general population.  The same study found that after 20 years in practice, the number increases from 18 percent to 25 percent.

These statistics are very grim.

And attorney culture helps feed these figures.  For example, the significant stress and heavy workloads attorneys face throughout their careers can, without other intervention, cause them to turn to substances for comfort.  Also, the weight of the issues that many attorneys deal with – including heinous crimes and civil injustices – can cause them to burn out quickly and seek illicit substances to mitigate the stress.

But attorneys do not just use alcohol to drown their sorrows; they also turn to it in times of celebration.  In fact, social drinking in the work place is often encouraged by way of networking events and victory dinners with cocktails and wine on the menu.

Further, and quite understandably, there is a direct correlation between an attorney’s substance abuse and her likelihood to be brought to the Bar for attorney misconduct.  The American Bar Association has reported that 27 percent of attorney discipline cases involve alcohol misuse by attorneys.  After all, Rule 1.16(2) of the ABA’s Model Rules of Professional Conduct expressly prohibits a lawyer from representing a client if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”  Individuals suffering from substance abuse are likely sufficiently impaired to trigger this rule, any may find themselves in trouble for violating it.

Fortunately, the Bar is on notice of the alarming level of substance abuse in the legal profession, as evidenced by the ABA’s adoption of Resolution no. 105 that “supports the goal of reducing mental health and substance abuse disorders and improving the well-being of lawyers, judges and law students.”  The resolution’s report details research on this topic, and offers recommendations to help the legal community tackle the problem.

The ABA also offers a list of various resources to help lawyers dealing with substance abuse.  You can access those resources here.  If your local lawyer assistance program is not listed, be sure to call your bar association directly for information on how to get help for yourself or others.

Now – go forth and be ethical!

–  EE

*Disclaimer: 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, Ethical Esquire will offer tips on avoiding ethical concerns when transitioning from one job to another.

 

The Lady Lawyer

The Lady Lawyer: Monica Parham Part II

By Patricia Donkor

February 5, 2018

 

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. 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. 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.

 

Lady Lawyer: Vernida R. Chaney

By Patrica Donkor

Welcome back everyone and thanks for tuning in to another installment of the Lady Lawyer!

Last month, we spoke to a Lady Lawyer that has enjoyed a successful career on the prosecutorial side of the criminal arena. This month, I wanted to stay on the criminal side of things with a Lady Lawyer working in criminal defense.  With her, I will explore the unique challenges she faces and the self-care/preservation decisions that have helped her stay the test of time.

Meet Vernida R. Chaney. She is the owner of the Chaney Law Firm, PLLC, a booming criminal practice that takes her into state and federal courts across several jurisdictions in Northern Virginia. Prior to launching her firm three years ago, she was a Senior Assistant Public Defender at the Fairfax County Public Defender’s Office in Fairfax, Virginia (“PD’s office”) for eight years. She briefly left after six and a half years to join the Northern Virginia Capital Defender’s Office where she handled death penalty cases before returning to the Fairfax PD’s office for a year and a half as a Senior Assistant Public Defender. Vernida is a zealous advocate well known for both her litigation and negotiation skills.

PD: Hi Vernida! Thanks for meeting with me.  First off, tell me where you grew up?

VC: I was raised in Richmond, Virginia.

PD: Tell me about your education.

VC: I earned a B.A. in Sociology and African American Studies from the University of Virginia in Charlottesville. Upon returning to Richmond after graduation, I enrolled in business school at Virginia Commonwealth University, where I received my M.B.A., then pursued law at Howard. After receiving my J.D., I began working at the Fairfax PD’s office.

PD: So, you have your own practice now, but how did you end up at the PD’s office?

VC: Well, I have always known that I would eventually venture out on my own. In fact, I was quoted in the Richmond Times-Dispatch right after graduating Howard Law, saying “I am going to work at a public defender’s office and then I plan to open my own firm.”

My dad had his own business and my mom worked in corporate America and I grew up in their offices and around their businesses so I have always had a business mindset and entrepreneurial spirit. In my teens and early twenties, I headed a few marketing and event planning entrepreneurial ventures which fueled my interest in pursuing an M.B.A. Afterwards, I went to law school, not to practice, but instead to get into business with a legal background. So, it was never really in the cards for me to practice, litigate, or venture into criminal law. However, Howard Law is known for producing “social engineers.” As stated by Charles Hamilton Houston, “A lawyer’s either a social engineer or … a parasite on society.“ While at Howard Law, I was encouraged to use my passion for helping others by applying the law rather than just understanding it. My education and practical experience was heavily criminally-focused for the latter part of my time at Howard Law that the natural progression was for me to work at the PD’s office. For instance, I interned with the PD’s office, the U.S. Attorney’s Office in D.C., and with D.C. Law Students in Court.  I was also the research assistant for my evidence professor, Adam Kurland, who is a former federal prosecutor and chair of the American Bar Association’s (ABA) white collar crimes division. So, with these experiences, it made sense for me to continue my work as a public defender where I could have a direct and positive impact on so many people. I expected for it to be only temporary but ended up staying much longer than I anticipated.

PD: How did you end up staying so long?

VC: I think because I just loved it. I really felt like I was making a difference. I also felt committed because of the lack of minority representation in the criminal justice system, in the judiciary, in the Fairfax Commonwealth’s Attorney’s Office, and even in the the PD’s office. In a way, I felt obligated to be there. As a minority attorney, there is a level of unique insight that we bring and can offer. When it was not present on either side of the justice system nor the bench, I felt I was there to fill that gap. I felt I could relate to clients better, most of whom were also minorities, and I thought I was able to better understand the circumstances that lead them to the point in their life where they needed legal representation than my non-minority colleagues. My clients would tell me they were able to communicate with me more openly and they were more trusting that I had their best interest in mind. I was also able to educate my colleagues about certain social and cultural nuances that they could easily overlook if they were not familiar with minority communities. It then became somewhat of a mission for me to use my identity as a Black woman to diversify the criminal justice system. Simply, my being there was a revolutionary act and so I felt that it necessary for me to stay and continue to not only fight for justice for my clients, but also fight for greater diversity and inclusion in the legal process. So overall, it was a mix of love and passion for the job and a duty to be, and further, the minority presence.

PD: As you know, I am a former public defender and during my time, I dealt with a multitude of biases – sometimes they related to my age, my gender, or my race. During your time as a Fairfax County public defender, did you experience internal biases and if so, how did you handle them?

VC: Yes, I did. Most of the clients were minorities – African-American and Hispanic. There were times I had non-minority clients who felt that they should be represented by a non-minority attorney because their perception was that they would get better representation from an attorney who looked like them. So, for those clients, I believe my race and maybe also in part, my youth, interfered with my ability to do my job.

PD: Sounds familiar. How did you handle it without taking it too personally?

VC: I just didn’t let it bother me, mostly because I could understand their sentiment. My strategy with these type of clients was to focus on talking to and relating to them on a personal level. Eventually, they would let their guard down and everything would be fine. I did, however, have a few clients, some of whom had mental disorders and were deemed incompetent to stand trial, who would say “I am not trying to be represented by that n—- attorney.” In those situations, there was nothing that I could do other than continue to work with them to the extent they would allow me to and, if they objected, I would have to withdraw from their case due to the breakdown in the attorney-client relationship.

PD: How would the office handle the case when you would withdraw?

VC: The court would appoint another attorney, outside of my office.

PD: I recall one time, as a youngpublic defender, I was assigned the case of a middle-aged Caucasian woman. She and I met. I recall that I spent a considerable amount of time with her because this was her first run-in with the criminal justice system and she was terrified. The meeting ended well, I thought. However, in a few days, I learned that she had hired a white female attorney, whom I knew from law school. I knew the attorney had literally just started her criminal practice and had very little experience. I knew that I could give the client better representation. I later learned that the law school colleague told a mutual friend that the client said that she did not feel comfortable with me. I knew that her discomfort could only be because of my race, particularly based on who she chose to hire instead. That experience stuck with me. Have you encountered anything similar?

VC: I recall a former client, a young white teenager, probably about 18, but still in high school. She got into trouble and did not want to tell her parents about it. Since she was full-time student and did not have income, she qualified for a public defender. I don’t recall what she was charged with specifically, but it was a felony. I wanted her to tell her parents, because like my parents, I was confident that they would do anything to help her since she was an overall good kid who was college-bound. I eventually convinced her to tell her parents. Her parents came in, we spoke, they informed me that they were thinking about hiring an attorney but were happy to have me to continue representing her. For our first hearing, we ended up with a less-than-compassionate prosecutor who was willing to reduce the charge but not dismiss it outright and this kid needed a full dismissal.  At my suggestion, her parents hired an attorney for the next hearing. Her parents were very nice and grateful that I was pushing for a dismissal and not trying to get her to take a plea deal. Her parents said to me “I don’t want you to think that we do not want a minority attorney.” I felt that if this young lady had walked into court with a good, well-respected private attorney, she may have received an outright dismissal. I felt that what was keeping her from getting a dismissal was not me personally or my race, but instead, what I represented – the PD’s office.

PD: Wow. That would bother me, particularly because I know that our local PD offices – Alexandria, Fairfax, and D.C. in particular, and so many others – really train their attorneys up. Some of the smartest and brightest lawyers are in those offices, not because they don’t have options; quite the contrary. They are highly recruited for various positions, but instead choose those jobs because they believe in the work. How did that make you feel to tell her to retain a private attorney? How did you cope with that?

VC: I would never want a genuinely indigent client to feel compelled to hire an attorney; however, in that case, her parents were more than financially able to retain an attorney, so it was the right move.  At her next court date, her case was dismissed. Although, I was no longer the attorney of record, I continued to follow the case and was happy that this young lady was able to go to college without a criminal conviction. It was an excellent result.

PD: But I’m sure the prosecutor knew about the quality of your office’s work, seeing as though you all went up against one another every day, no?

VC: True, but sometimes there is an inherent bias associated with poor or indigent clients that may not be attributed to clients who are able to retain counsel. I know this from my own personal experience since leaving the PD’s office and now being a private attorney. I am no different an attorney that I was back then. I have the same type of clients now that I had when I was at the PD’s office but, whereas then, sometimes I would have to fight tooth and nail to get a justified or reasonable result. Now, as a private attorney, most often there is less of a fight.

PD: That’s interesting since you literally are the same person and the prosecutor can see that. Do you believe you present differently as a PD versus as a private attorney?

VC: I will say this, the optics and impressions that you give off matter. As a private attorney, I can’t afford to go to court and not present my best, particularly when I go to a new jurisdiction or before a new prosecutor or judge. I do believe that the appearance and optics that I try to present, now that I am private practice, reflects the seriousness of my work.

PD: What do the appearance and optics look like?

VC: “You need to look like a lawyer.” Plain and simple. I have this discussion with female attorneys all the time. Even when I was with the PD’s office, in preparing for a jury trial, I would go back and forth with myself: “Do I wear my hair curly? Do I wear my hair straight?” I literally had debates about how I was going to wear my hair during jury trials. I finally got to a point, near the end of my career at the PD’s office when I was comfortable wearing my hair curly during the work week.

PD: Has this internal debate changed now that you are out on your own?

VC: I just finished a trial in the United States District Court for the Eastern District of Virginia, Alexandria, Virginia. The trial lasted a month. I wore my hair pulled back in a bun every day until the last day of closing arguments. The trial was supposed to wrap up on a Friday, but extended into a final Monday, for the last day of closing arguments. That Monday, I woke up thinking “What should I do? Should I pull my hair back into a bun again? Eventually, I decided “forget it” and wore my curly hair down.  When I came to court everyone was commenting about how I looked so different. An attorney, representing a co-defendant, suggested that I make a joke about it to the jury, so I did. In my closing, I said “Ladies and gentlemen of the jury, I promise you that I am the same attorney that you have seen for the last month. I know that I look different, but I am Vernida Chaney, Mr. ——’s attorney” and everyone started laughing.

PD: It sounds like you have had to and continue to make decisions about your appearance, as a form of self-preservation. Would you agree?

VC: Yes, but that’s a belief I hold true anyway. When I was at the PD’s office, I had colleagues that wore cute dresses or ballet flats with bows and I loved it. Even though I wanted to dress similarly, I always felt the need to give off the appearance that I was a lawyer.  In the past, people have mistaken me for the court reporter, one of the deputies, or someone that worked in the courthouse. So I always tried to make sure that I didn’t look like anything else other than an attorney.

PD: So this was a consideration that you had as a public defender, and more so now?

VC: Yes, much more so now. For one, I do have clients that are paying to have an attorney, not a secretary or an assistant, represent them. Two, I think when you find yourself in new environments or dealing with new people it is very important that you give off the impression that you are a serious litigator and that you are not there to play games.

PD: Does not being able to appear the way you feel most comfortable have an impact on you?

VC: Like everyone else, it is more comfortable to wear casual clothes versus a suit and heels all day but, for me, it is important to do so. This allows me to feel more confident when I am in court representing my clients.

PD: You spent time as a Capital Defender, representing people who were sentenced to die. Describe what that was like for you. As a litigator, you are often told to keep the emotion out of representation, so to not hinder your ability to be effective. What is your perspective on this? What worked for you?

VC: I don’t think you can take your emotions out of it. That wouldn’t be human. These clients are facing the ultimate punishment – death – and it is important to feel their pain, fears, and troubles. Being emotionally connected to my clients makes me a better attorney.

PD: Did you experience a client execution as a capital defender? Did it ever cross your mind after that experience, that the work was too much to bear?

VC: Fortunately, no. All the cases I worked on the clients were spared the death penalty.

PD: Do you continue to work on capital cases? Clearly everyone is not cut out for the work. What do you think it is about you?

VC: Indeed, these are difficult cases to work on; however, I believe in redemption and that every life is valuable. My Christian faith is my biggest source of strength and guidance in doing this work.

PD: People don’t realize that a huge part of being a criminal defense attorney involves being a counselor. You have mounted defenses against the most serious crimes possible and, with the capital cases, represented clients facing the heftiest sentences. Sometimes a win in a case is getting a client a life sentence instead of the death penalty. Over the years, did you develop an approach to counseling clients, when the victory may come in the form of the lesser of two extremely tough alternatives?

VC: You are exactly right. I am a counselor to my clients but in order for them to listen to me, they have to trust me. In my opinion, the only way to build that trust is to develop a genuine relationship with them and their family.

PD: What about yourself? Do you find that you also need to give yourself pep talks to plow ahead during those times?

VC: Certainly. The work we do is hard; however, I recognize many of my clients have it much harder. When I think about what they are going through, it motivates me to keep going.

PD: Thanks, Vernida!

VC: Thank you, Patricia

Next month, we will continue our feature of Ms. Chaney in ‘Vernida 2.0.’ We will talk to her about when she knew it was time to leave the job she loved at the Fairfax PD’s office and enter the unfamiliar – solo private practice. We will discuss decisions she made along the way and how they factored into her overall self-care.

If you want to learn more about Vernida, visit her on Linkedin at https://www.linkedin.com/in/vernida-r-chaney-b9899045.

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 https://www.linkedin.com/in/michelle-bradford-03153b8/. 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.

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!