Stop Hiding Behind Ethics

Allison Williams: [00:00:11] Hi everybody, it’s Allison Williams here, your Law Firm Mentor. Law Firm Mentor is a business coaching service for solo and small law firm attorneys. We help you grow your revenues, crush chaos in business and make more money.

Allison Williams: [00:00:25] Hi, everybody, it’s Allison Williams here, your Law Firm Mentor. And on this week’s episode of The Crushing Chaos with Law Firm Mentor podcast, we’re going to be talking about a topic that I know a lot of lawyers are aware of, but I don’t know how much lawyers actually contemplate whether or not this impacts them personally or if they just see it out there in the landscape and know that it’s something that needs to be addressed. But it really is our rules of professional conduct and in particular, ethics. And when I talk about ethics, I am talking about not just the existence of ethics, but the fact that lawyers hide behind their ethics as a means of staying small. OK. We all know who those people are, right? As soon as something comes up, as soon as a thought, an idea, a strategy, a tactic comes to mind that somebody else is doing to have a great success for themselves. Right. People who are knocking it out of the park. People who are opening up satellite offices or even full offices in other states, in other jurisdictions. People who are making a lot of money, people who are building out different divisions, adding different practice areas, all that sexy fun stuff.

Allison Williams: [00:01:34] There are those skeptical lawyers out there that will look and say they must not be doing it ethically. Right. That assumption comes up almost as intuitively in our profession, as outside of our profession. And it’s really disturbing to me when lawyers will denigrate other lawyers, not because they have done the research or asked the questions or found the answers, but because they would rather have an assumptive believe that other lawyers who are finding success are doing something wrong and inappropriate, rather than ask themselves the hard question of, if it’s working for you, could it work for me too? So a lot of times lawyers hide behind their ethics and this episode is dedicated to the topic of stop hiding behind your ethics.

Allison Williams: [00:02:25] All right. So there are several ways that this happens and we’re going to talk about them today. And the first thing is to realize that hiding behind ethics is really just a scapegoating for fear. That means that if you haven’t done something and you don’t know that it won’t work, what right do you have to question that? It won’t work. And for a lot of people, the way that they answer that is as a licensed attorney, I have a responsibility to comply with the rules of ethics. And since I’m not immediately aware of a rule that would authorize this, I’m going to assume that it’s not authorized, OK? And we know that that’s completely ignorant thinking. Right? There’s… The rules of professional conduct are designed to be the rules of what is not permissible. Right.

Allison Williams: [00:03:17] There are things that are directly prohibited in the rules of professional conduct. And we want to make sure that we are not violating those rules. We have a responsibility to be familiar with our rules of professional conduct. But I bet you if you ask the average lawyer who says, oh, yeah, that can’t be done or that’s not permissible or I don’t see how that’s allowed, if they stop there and they don’t ask themselves what rule they are referring to that directly prohibits what is asked or even tangentially prohibits. Right. Let’s not go with the strict letter of the law. Let’s also go with the the meaning of it, the interpretation of it, the the natural sequelae of it. If we don’t ask ourselves where that thought process is coming from, we will oftentimes land at it’s not allowed. Now, there are some very valid reasons for this, right? We are in a highly policed profession. And oftentimes the people who are the most negative, the ones who are the most inclined to say that can’t be done are the exact people who would be out here picking up the phone, dialing the Office of Attorney Ethics when they see someone else being successful, that they don’t want to take down a peg. Right. If they would be inclined to call and say, hey, somebody said X, Y, Z on their website, I don’t think that’s allowed. They would also be the ones who would say, I can’t go do anything like grow my business because there’s some asshole out there who’s just like me who would be placing the call to the Office of Attorney Ethics.

Allison Williams: [00:04:49] But if you really think about it, if you haven’t done something and you don’t know that it won’t work and it works for somebody else, shouldn’t your question be, how did it work for that person rather than that won’t work? Right. And by the way, I’m able to talk about this pretty directly and bluntly, because I was the lawyer who said, yeah, that won’t work. I used to say that to everything. Like instinctually somebody would give me a recommendation, oh, if you’re having a problem with your employee, you could try this, but that won’t work. Or, hey, you know, what about the idea of having a non attorney sell legal services in your office. Nope non-attorneys can’t give legal advice. That won’t work. Right. I remember, it’s now… The person who first introduced me to this concept is now deceased. But when we first started having the conversation about it, he was somebody that I respected a lot. And he worked with lawyers. He was a marketer. He worked with lawyers. So I said, OK, I respect you and I know you work with lawyers across the country. So what is it that I’m missing? Educate me about why this is not the unauthorized practice of law. And he gave it to me and I said intellectually, that sounds right.

Allison Williams: [00:06:05] So then I came back and did the research and said, OK, there’s nothing that precludes this. So I’m going to try it. And now I have a non-attorney in my law firm who sells legal services for us. She does not give legal advice. We have verification of that and training and protocols and protections and all that stuff. But she now has a higher conversion rate than I was ever able to achieve on my own. And she has all day, every day while I’m doing other things available to pursue people, follow up with people, have conversations about hiring the firm, et cetera. Right. But I remember when I was very resistant to trying this because I wasn’t familiar with it and it just seemed risky. But why go to the stopping point when you see risk? Why not lean in and say, I see the risk, but I see other people doing it? How do they jump off this cliff and not plummet to their death, to their death? How do they jump off this cliff and managed to be hang gliding down through the sky to a safe landing at the bottom. Right. Now the other thing to think about when you talk about the scapegoat for fear is that if you tried something and you failed, you’re still only seeing your results. Right? You’re not seeing others’ result, others’ results. And I think we all intellectually get this when we start thinking about the fact that other people have been able to hire human beings to work in their law firm.

Allison Williams: [00:07:36] So if I hired somebody and they didn’t work out, why on earth would I assume that that means hiring is not something I can do. Right. I might not have mastered how to do it yet. I might not have figured out what works yet. I might not be in a place where I can say this is something permissible yet or this is the way it’s done yet. But I can say that other people have done this. Right. So I’m I just need to figure out the tricks of the trade, the how to. And once I figure that out, I’ll be in a position to be as successful as other people when it comes to hiring. Right. But a lot of times we stop ourselves right at that very point because we tried and failed and we said, oh, my God, well, this must not be for me because I failed at it. No, you actually didn’t fail. What happened was you didn’t achieve your outcome, your desired outcome. Yet you got to a place where you put things into place that were designed to lead to a certain outcome. And if you didn’t put the right things in place, there’s still an opportunity for you to figure that out. You just haven’t figured it out yet. Right.

Allison Williams: [00:08:47] Think about the toddler who learns to walk right the first time. You know that they lift themselves up, like when they’re around 10 to 11 months developmentally. They start cruising, they start pulling themselves up using a barrier, and then they start to toddle a little bit, holding on, moving a leg, and at the same time holding on with their hands. And at some point when they let go of the barrier and decide they’re ready to walk, they put one foot in front of the other. They’re a little shaky. They put another foot in front of the other and then they plop down on their diaper. But they don’t just decide, OK, that hurt, I didn’t like that, that was scary, I guess I’m never walking again. Now, there are children that do decide that, believe it or not. There are children, that the first time they try to walk, they fail so they don’t try again until they’re ready. So some children might actually have a false start at nine months when they start cruising and then they don’t walk until 12, 13, 14, even 15 months because it was traumatic for them to fail. But there was also, in those instances, oftentimes not someone there who is picking them back up and letting them see, put one foot in front of the other. Let me hold you while we do this and then let me take one hand off so you can just use me for balance and then let me take the other hand off and let me catch you if you start to fall.

Allison Williams: [00:10:08] So you see that even falling is not going to happen again. Right. There’s a process to getting people through their fear. It involves starting with full support and then lesser support and then etherial support, hands on the side, but not holding. And if you don’t get yourself into a mindset that says that’s the way that I ultimately can move through fear, having someone to hold me through it, then slowly easing off until the point where I’m really doing it on my own. And they are just there on the bumpers. Right. And that scapegoating of fear will oftentimes lead lawyers to just default to ethics. Nope. Can’t do that ethics. We can’t do that at all. And that fear oftentimes informs what they will then use as their argument for why not, rather than a stop and critical evaluation of why something has or has not worked in the past and why it can work if something is done differently in the future. All right, strategy number two, when we talk about stop hiding behind ethics, the second thing to understand about this is, rarely can people who are hiding behind ethics fight the rule that would negate whatever is being discussed. OK, now that doesn’t mean that there are no rules, but it is rare that they can actually cite the rule. Sometimes it is pure conjecture, right? It’s a feeling.

Allison Williams: [00:11:37] It’s a thought. It’s an idea. We’re just going to say that this is not permissible because it doesn’t feel like it is. But remember, the rules of professional conduct do not codify any and everything that you’re allowed to do. And part of the reason why that is the case is because the rules were designed for a very specific reason. They were designed to protect the public. So if you think about it, how could we ever have a system of laws and rules and instructions and guidance in our rules of professional conduct that would codify any and everything we are ever expected to do in the day to day running of our businesses, the day to day interacting with our clients? It can’t be right because there’s always going to be something new to the way that life is experienced in our world, whether it is the way that we communicate, the way that our clients give us information, the way that our clients expect us to respond. Right. Think about what, what it would be like if the rules of professional conduct actually had to codify things like can you text your client and what are the parameters around being able to social media message your client? Right. There are some jurisdictions that actually now have DRB decisions that will explain what is or is not permissible based on the underlying rule. But the rules are not any and all things that ever could be done.

Allison Williams: [00:12:58] They are the things that are not to be done and the things that are absolutes must be done for a client and everything else is filled in by ethics opinions. Now, that doesn’t mean that you want to angle to be America’s next top ethics decision, right? Nobody aspires to be an ethics decision, but I think it is safe to say that a lot of times when we look for answers, if we are, if our decision about whether to do something starts with the idea of did the rules of ethics directly allow for this, then the answer is always going to be no. Right. Unless it’s something that’s already a well-worn path, in which case you probably wouldn’t be asking the question or hiding behind ethics in the first place. OK, now the other thing to remember is that a lot of times when someone can’t tell you what the rule is, when someone says, oh, yeah, the rules of ethics don’t allow for that, and they default to that, you know, oftentimes it’s because it doesn’t quite look like something that’s already in place. So I want you to think about the advent of social media marketing. When we first started really marketing in social media, we started to have a lot of, a lot of questions about what what is or is not attorney advertising. And even now, like there are some attorneys that use the proviso this is intended to be attorney advertising, blah, blah, blah, and others that don’t. Even in the same state, in the same jurisdiction, sometimes even in the same law firm.

Allison Williams: [00:14:29] Right. Because there’s a question mark based on what’s being communicated and some err on the side of being super conservative and always including that caveat, attorney advertising. We’re here to try to sell you something, beware. Versus others that say unless it is a direct call to action, of call the office. You know, I’m not going to put that proviso out there. And there are some things that have been decided in our rules of professional conduct or rather in the disciplinary review board decisions and others that haven’t. But those that stop asking the question oftentimes lose those opportunities. Right. Because they don’t seek out how it can be done. They simply say it can’t be done, therefore it won’t be done. All right. Third, as to how we should stop hiding behind ethics is to recognize that instinct is not valid for lawyers when we are talking about ethics. OK, again, instinct is not valid for lawyers when we are talking about ethics, it is really, really important that we understand this. And I think probably the best demonstration of this in our world is the show Law and Order. Right. For those of you that haven’t watched Law and Order, I don’t know what rock you’re living under. Right? There’s there’s the original Law and Order with Sam Waterston.

Allison Williams: [00:15:59] Then there’s the Law and Order SVU, Special Victims Unit, and then there’s the Law and Order, Criminal Intent. But the classic Law and Order used to always have episodes on where there would be some ethical conundrum, some question about can I do this? Should I do this? Is it moral to do this? And doing the right thing as a person, as a spiritual person, as a religious person, as a person who believed that you were taught right and wrong from your parents versus doing what is, quote, ethical, is one of those things that are oftentimes in direct contrast. And we don’t know how to balance those other than to say the rules of professional conduct are the rules. You have to adhere to those rules. I don’t care what you think is moral in this instance. Right. Or if you do what you think is moral in this instance, you may very well land in a place where you’re making a decision to violate the rules of ethics and to accept the consequences. So kind of the most common example of this would be the situation where there’s evidence of an ongoing crime. Right. So if you are the lawyer and your client is being prosecuted for a crime. And then at some point in time your client discloses to you, well, I didn’t kill so-and-so, so they can’t get me on murder. But I have that person tied up in a warehouse somewhere and I’m not giving them food and water because now the cops are watching me.

Allison Williams: [00:17:40] So they’re probably going to die at some point. Right. As a person hearing that, you may think, wow, I want to go tell the police, because that’s a moral calling on me. I’m aware that there’s this person who suffering that could die if I don’t interact and I don’t stop and I don’t say something right away to deal with this. But on the flip side, right, it’s evidence that your client disclosed what would otherwise be confidential information. And that information came as a direct result of you being their attorney. They have the expectation of confidentiality to the conversation and it’s evidence of an ongoing crime. So there are certain caveats to that, certain limitations and times when you can tell. But what if this is one of those times where you can’t tell? So do you do what’s right, quote unquote, or do you do what’s ethical, right? Those conundrums are there. So it is not always the best course of action for a lawyer to say it feels like I should do this based on the rules of ethics. We should always consult the rules of ethics to ensure that we are getting the right ethical answer and not simply shooting from the hip and hoping for the best and assuming that what the rules of ethics would require, is always going to comport with what we personally might prefer, because that’s not the case.

Allison Williams: [00:19:06] OK, the other thing to remember is that instinct is not valid for lawyers because our instinct is consistent with our training. And our training has told us that we are here to ensure stare decisis. Right. We learn stare decisis. We want to do what we have always done. That is the goal now in law school. I’m sure we all learned about the principle of stare decisis and I’m sure it came up all throughout, in particular our first year of law school. But one of the things that we also probably all learned about was Benjamin Cardozo and the mores of the time. Right. That would be the thing. That would be the antidote to stare decisis. Like the way that we’ve always done things is the way that we do things, except when our times have changed such that we don’t do things like that anymore. And lots of social movements ultimately came from the mores of the time argument or the good faith extension of the law or evolution of the law, including things such as voting rights for women and the elimination of Jim Crow and slavery. Right. We know that we change as a society and then the things that we always did are no longer acceptable to do in the future. So if that is the case, I want you to also remember that our rules of professional conduct are very much the same, that the rule is the rule until the time to change such that the rules should be reconsidered.

Allison Williams: [00:20:37] And it is not always the case that a rule has to be reconsidered, sometimes the rule has to be extended to cover new forms of technology, communication, compliance. There’s a whole host of new expectations that we write into the rules of professional conduct periodically, like the responsibility of protecting clients data in an electronic world. Right. Cybersecurity is something lawyers now have to concern themselves with that we didn’t 20 years ago because it wasn’t a state of the art discipline 20 years ago. But it is now. Right. And I want you to just think about that as you’re thinking about approaching new ways of doing things in your business, new forms of marketing, new forms of hiring, new forms of technology, because it is these changes, these evolutions in the way that we live that will oftentimes make older rules no longer logical. Now, that doesn’t mean you can just stop following them because they’re not logical anymore. Right. The rule is the rule until the rule has been changed. But to simply say, because this new way of doing something, this new process, this new procedure, this new idea was not in existence at the time, that the rules related generally to this category of behavior were written. I’m going to default to, nope, ethics wouldn’t allow for this, because whenever we default to something not being allowed instead of asking ourselves how we get to it being permissible, how we get to the way we can do this so it is permissible, so it is ethical. When we allow ourselves to stop with a knee jerk reaction of something being an instinctual no for us. When we live in the instinctual no, we cut off the opportunities to make our lives better. We cut off the opportunities to grow as a business and as a person. We cut off the opportunities to create more economic abundance, more freedom of time, more pleasure in the work we do, to serve different and better clients in order to be better lawyers that ultimately will be better for society.

Allison Williams: [00:22:46] We cut off our opportunities when we default to no. And that is something that I want to implore all of you not to do when you are considering something that is put before you that is new and different and exciting, something that you are intrigued by, but something that is not already codified in the rules of professional conduct. The power question that we always want to ask is, how can I? Not can I, but how can I? When we ask the question how we open up a world to the opportunities to find the answer. All right, everyone. This is Allison Williams, your Law Firm Mentor. We have had another episode of The Crushing Chaos with Law Firm Mentor podcast. And today we talked about stop hiding behind ethics. And if you or someone you know has a default orientation to protect yourself by the rules of evidence or pardon me, the rules of ethics, I want you to know that that’s a natural and healthy instinct, except to the extent that it stops you and blocks you from the opportunity that you create.

Allison Williams: [00:23:47] So if you want to create more in your Law Firm Mentor, you aren’t sure how, but you know that you have a desire for something more and more time, more money or both. We here at Law Firm Mentor are here and available to help you. So I want you to reach out to us. Our law firm, our website and our scheduler are listed in the comments in the show notes to this episode. I’m Allison Williams, your Law Firm Mentor and have a great day.

Allison Williams: [00:24:31] Thank you for tuning in to the Crushing Chaos with Law Firm Mentor podcast. To learn more about today’s guests and take advantage of the resources mentioned, check out our show notes. And if you own a solo or small law firm and are looking for guidance, advice or simply support on your journey to create a law firm that runs without you, join us in the Law Firm Mentor Movement free Facebook group. There, you can access our free trainings on improving collections in law firms, meeting billable hours, and join the movement of thousands of law firm owners across the country who want to crush chaos in their law firm and make more money. I’m Allison Williams, your Law Firm Mentor. Have a great day.