I’m not a great lawyer, I’m not even all that convinced that I’m a good lawyer. I mean, I’ve never attempted to extort a multi-national corporation that is nearly synonymous with the concept of ‘sport,’ but I’m not exactly getting referral calls every day either.
One thing I do feel relatively confident on is that I’d never do anything so inherently stupid as a lawyer as to put me in serious danger of either a) losing my license, b) going to jail, or c) both. That’s not to say that I’m an exemplar of legal ethics. I’ve had disagreements with other lawyers over the requirements of the rules of conduct applicable to me as a member of the bar, and I may have very well been wrong on those counts. I have sought guidance from my bar association where I felt it was relevant and/or necessary, but overall, I think I have kept my nose clean.
One feather I will put in my cap is that I received an award when I was in law school for earning the highest grade in my professional responsibility (lawyer ethics) class. This was no hollow victory either, as the class was made up of nearly my entire graduating class, as well as a few over-achieving 2Ls who wanted to take the MPRE early. Our professor was a character, and some of the concepts we discussed during that class really stuck with me, despite the fact that they didn’t directly relate to the MPRE. With the recent indictments against Michael Avenatti, I have thought more and more about some of those lessons and concepts.
Stay Away from Cameras
My PR professor warned us all to avoid cameras, particularly if we had a client who had a sensational case. He did couch that with a caveat that we could play moderator to a client if the client decided he or she wanted to speak, but that we shouldn’t seek out cameras in a misplaced attempt to score points in the public sphere while also advertising ourselves.
Perhaps this caution from my professor lead to my initial distrust of Michael Avenatti. From day one of the Stormy Daniels v. Donald Trump case, Mr. Avenatti seemed more interested in using the case to get free air time on CNN to go on tangents about how he was going to “take down” the President. He barely seemed to talk about the case for which he was hired, and if so, only spoke about the goals of litigation, something that is really supposed to be set by the client, and therefore should be subject to attorney-client privilege. I’m not suggesting that he didn’t obtain the proper waiver from his client before running his mouth to CNN and any other news organization that would talk to him, I’m just saying he presented himself as someone who didn’t care whether or not he had permission from his client to air out the raunchy details of a private civil action.
All of this is not to say that lawyers should never talk in front of a camera, or even that they shouldn’t do it in an instance where they represent one of the parties. However, when you’re chasing the camera rather than the other way around, don’t be surprised if your motives come into question.
One lawyer who I believe does media well is Ken “Popehat” White, who is often called upon to give an opinion on legal issues of the day. I’m not familiar enough with his back catalog to say he has never done this, but I have not seen him comment on any ongoing case for which he represents a party, and I suspect that this distance allows him to give better analysis than he could otherwise.
It is perhaps telling that shortly before several indictments were levied against Michael Avenatti, one of the subjects of his now infamous rage-filled phone calls was none other than Popehat. As my grandmother used to say “people are punitive when they’re wrong,” and certainly no one was being more punitive, or more in the wrong, in that moment in time than Michael Avenatti.
There’s No Such Thing as a Hero Lawyer
Another admonition from my professor was that we should not seek to become a legal “hero,” and the basis for his contention was a brief experiment was done in the middle of class. My professor asked the class to name a lawyer who was a hero. Most immediately turned their minds to fictional characters like Atticus Finch, or to historical figures who were thought of as heroic for something other than their lawyering, like Abraham Lincoln. The reason, my professor implied, that we could not think of a hero lawyer was that there was no such thing.
I raised my hand. John Adams, I said, should be considered a hero lawyer. He represented the British soldiers who had committed the Boston Massacre despite the fact that nearly every other breathing person he knew wanted them dead. He believed that no matter what they had done, they deserved a defense just as vigorous as would be given to the most sympathetic of defendants. My professor agreed, though he still maintained that John Adams was not as well known for his defense of British soldiers as he was for being the 2nd president, and so maintained the validity of his thesis.
Whether or not my professor was right (I’m pretty sure I was right), the fact is that lawyers are not meant to be heroes. As lawyers, we are fiduciaries and are bound by the rules of professional conduct to make decisions based on what is in the best interest of our client. To put oneself in a position where your prestige, or your purse, rely on the continuation of a case that might be best settled out of court, puts your own interests at odds with your client. While we may all believe that if we were placed in that position, we would make the right decision, shouldn’t the appearance of impropriety scare us enough to avoid the scenario entirely?
The other problem with viewing oneself as a hero is practical in that it cuts off avenues for rational discussion and possible resolution outside of a courtroom. If I believe that I am a hero, then the only one(s) who can oppose me are villains. I’ve come across a bit of this on law twitter where I was sanctimoniously told that my opinion on whether or not law school was a good decision was “privileged” because I was unwilling to tell a 22 year old that they should go into crushing debt and work for peanuts in order to represent the disadvantaged. This person had such a hero complex that he outright refused to acknowledge that law school could be a bad decision for any person asserting that “more lawyers means more justice.” Whatever the equivalent thing of throwing up a little in your mouth is for eyes, that just happened to me.
In the end this concept ties back in to the idea staying away from cameras. In today’s world of fast-paced 24/7 cable news, two dimensional approaches are king. Everything is left and right, black and white, this side versus the other side, heroes and villains. Michael Avenatti attempted to portray himself as a hero, a fighter for justice, and in the process tied his own personal interests to the outcome of a matter in which he was representing a party. Perhaps the resulting spiral out of control and the crash and burn that happened in the past few weeks was inevitable from the moment he first tasted the limelight of being a self-proclaimed hero-lawyer.
So, What’s the Point?
There really isn’t any point to this except to perhaps illuminate for some of you why many lawyers seek to remain anonymous online. Certainly perfect anonymity is nearly impossible, but to the extent that it is possible, lawyers seek to be able to engage with each other and with the public, without mixing their own prestige and financial status with matters that they could potentially become involved in. It is unlikely that most of us ever see this happen in real-time, but it is very common for a lawyer to completely cut-off discussion on a particular topic on social media, if they believe they may become involved, even tangentially, in a related case or matter.
Michael Avenatti, at least before he blocked me, liked to take swipes at anonymous lawyers. Accusing us of hiding behind fictional names and avatars out of cowardice or worse, accusing them of *gasp* not having as many million-dollar verdicts as him. The fact is, despite its many faults, twitter for lawyers can often be a semi-productive exchange of ideas, and a lawyer is just factually freer to share ideas when anonymous than when his or her reputation and livelihood are directly connected to every single statement.
There’s no need for me to re-litigate all of the various indictments and charges that have been brought against Michael Avenatti at this time, and certainly he is entitled to the presumption of innocence as much as any other person, though it is more than he seems willing to grant those that are unfortunate enough to come into his cross-hairs. While Michael Avenatti seems to have completely lost public credibility, there are other Avenattis out there. Before you become one of them, think about your motives for speaking to press if ever you have the opportunity, and reject the impulse to think of yourself as a hero for doing the job of representing a client.
Reject Avenatti and try to be Ave-nice.