Monday, August 20, 2012

Undervaluation of a Dreamer - by Jin Kong

I start my last year in law school today. I look forward to this part of my journey coming to an end in a year’s time. Not that I didn’t like law school; the intellectual stimulation was exciting at times, the ever presence of free pizza was a joy even though I do not like pizza unless it was my own making or a New York style slice. And in law school, I did learned more about the working of this country than I ever had in college or in the Army.

Funny, you figure if they were going to send me to war and ask me to die with a Chinese passport, they’d at least teach me more about the United States so I know what it is I’m being asked to sacrifice for. But I guess I didn’t see it as a sacrifice nor did they see it as important to risk a foreigner’s life. A mutual understanding forged and Uncle Sam allowed me to witness a better part of my life entwined with life and death, hope and revenge, violence and peace—all of which were mingled with the still sense of confusion I had in college.

What exactly is this country all about? Had I wasted my time sleeping with a M-4 at night and finger on its trigger all day?

But that wasn’t the way things worked. The Army taught me a few general order of things and then a whole lot of hard skills to deal with the wounded and the dead. Other than that, my appreciation for this nation was, as it had been since I immigrated, kept to a very selectively minimum. 

Yet the military did give me one useful thing: to be terribly resilient and to take initiative without fear or knowing why. Simply do is the motto, and always prepared were chants that kept us sane on those 20-mile hikes or knocking on the doors of potentially cruel conditions in a foreign land with many misunderstood folks who thought we the infidels.

To be resilient and to prepare is the only thing I knew how to do and I did it well. I had to adapt and overcome when I came to the States in 1992. As far as I know, I was the only Chinese guy from the Communist mainland in my high school. Barely speaking the language then I managed to fumble through year-books, chemistry classes, and embarrassing gym periods. Later, I fumbled through basic training and AIT and then a war.

I survived all of it because I was resilient and I knew I was in control of my own life and if there was anything good that will come from it, I needed to be the one in charge of its direction. So no matter how or where, I marched on with myself.

A few years after I was honorably discharged, I was lost and needed direction. I needed to know where it is that I’m marching, even though I do not know how to get there. I landed in law school thinking that I would learn to be a good writer and to learn the law. Maybe writing and learning the law would force me to focus on the things I needed to know. Yet, a few short years later, although I managed to learn a few laws and my writing is improving, I also learned that the profession of law is one unlike college or the military. Here, I would not find where it is I am going, but at least I found ways to get there and signs to tell me where to turn.  

The profession of law requires a real sense of sacrifice. A sense of devoting your whole life to living with boundaries and principles, to living with the idea of upholding and defending the Constitution as I had promised to do all those years ago without proper indoctrination. To be part of this profession, one is asked to facilitate social progress through one’s initiatives and preparation. There are few checks and balances and the only real thing that keeps the profession from corrupting are the model ethical rules that may vary from state to state, nation to nation. Of course there are the laws that lawyers vow to perpetuate, but those laws integrate the greater society and is therefore expansive in its sense of direction.       

The general public does not understand this aspect of being a lawyer—an officer of the Courts.

Lawyers’ representation by popular culture has undergone a transformation in recent years. The Perry Mason days are replaced by Boston Legal, lawyers' reputations these days rank below or just above a used car salesmen.

But is it the profession that corrupts or is the person who corrupts the profession?

That is the question I still struggle with at times. I would like to believe it’s the person and not the profession that is susceptible to corruption, but I know better to believe in perfect laws and to believe in fair tales.

Yet the law itself does aspire. Take the Sarbanes-Oxley Corporate Accountability Act for example. It mandated SEC regulations for all lawyers doing business with the Commission to comply with certain ethical obligations. It requires attorneys to report evidence of material violation of securities law or breach of fiduciary duty of anyone, including corporate officers, to the company that she or he is representing. If such reporting fails and the very top of the company is committing the violation themselves, the lawyer is expected to resign and then properly acknowledge agencies and organizations to act.

This means, as either in-house or outside counsel, a lawyer is bound to report any wrongdoing that is material to the corporate mission. But a lawyer’s duty to report wrongdoing does not stop with the company. According to professional rules of ethical conduct for lawyers, attorneys may resign and then report on corrupted company practices that the lawyer reasonably knows to have serious harm or may cause injuries to even just the corporate property interests.

Under both the fiduciary duty one owes to the company and the ethical duty to the public at large, a lawyer is bound to operate within the profession. What makes the lawyer's job hard is the conflicting duties to a client's confidence is betrayed to an extend when a lawyer decide to resign and spit in the wind. Even if under the new amended American Bar Association Mode Rule 1.6, where an exception to the lawyer’s confidence is made when the attorney has reason to know that revealing the information will prevent the client from committing an act (not just a criminal one) that is likely to result in death or substantial harm to person or damages to property interests. The lawyer may face lash backs from the corporate interests and hiring managers. Deciding to do the right thing may just end a lawyer's professional career.

Under the old lawyer’s professional conduct rules, there has to be a criminal act causing imminent death or substantial bodily harm in order to invoke a lawyer's protection if he should decide to breach his confidence with the client. This gave the lawyers a great excuse to perch their silence of the things they know are wrong on the duty of confidence. While laws are passed in the spirit of social changes to protect the environment, the people, and public companies' obligations, lawyers acting in corporate capacity are limited to risk assessment on cost avoidance.

The new ABA rule eliminated both the “criminal act” and “imminent” requirements.

This means if a lawyer knows of something, like the amount of toxic pollutants a company is pumping into the drinking waters, even though is not enough to cause immediate harm or injuries or property damages but may lead to long term problems, then the lawyer is duty bound to report up to the chain of the company; if the company refused to resolve the situation, the lawyer then is duty bound to resign and report the problems to the public.

The new ABA rule also does not require the culprit to be the client directly. In fact, the client does not have to have directly acted in causing the harm for the lawyer to throw up the red flags. The new rules only require that the harm is reasonably certain and it is the lawyer’s duty to “prevent, mitigate or rectify substantial injury to the financial interests or property of another” either directly by client’s actions or indirectly as the result of client’s actions or employment of lawyer’s service in furtherance of those actions.

As an attorney, one also has a duty of candor to inform and educate clients not only on the basis of the law, but also on the considerations such as ”moral, economic, social and political factors, that may be relevant to the client’s situation.” This means if an attorney has reasonable knowledge about the practices of the industry, emerging trends of demand on sustainable products, and any host of environmental or social responsibilities that is mandated not only under domestic laws but also international treaties and norms, then the attorney has a duty to let the client know.

The lawyer is required by law to give candid and competent legal advice to the client and keep client confidentiality, but this legal duty is now at the mercy of corporate accountability, shareholder activism, market demand pressure from more and more socially and environmentally aware shareholders.

What the client does is her business, but what the lawyers do is bound by the ethical duties of confidence, informed consent, and candor among other things. But you see how this can put a lawyer in a very difficult position: s/he is getting paid by an employer who may not want to do the right thing; the lawyer knows there is a duty of confidence and unless there is serious death or injuries, the lawyer is not obligated to report. He must balance the facts he has with doubts in his mind, comply with the client's wishes to the extend allowed by law, while risking his livelihood if he should choose to do what he think is right.

The lawyer is asked to draw the line where he sees his difficult ethical duty ends and his obligation to a client begins; he is asked to walk that very fine line to ensure the social good is served as well as his family protected. For the lawyer, under the risks of the circumstances, his billable hours is nothing compare to what their business counterparts are making in profits.

But this isn't about money, is it? Professionalism tells us that lawyers owe a higher duty; the call to profession should weigh heavy within a lawyer's heart--each choice impacts lives of others and it matters what and how we chose. Why is this important? It is to me.

A while ago, I wrote about the law profession’s past and expressed my sentiment about making a difference in the world. Today I am more the wiser to know there is more than just the law that matters. Life comes in many shapes and is of many dimensions; the law profession is one that serves to better those lives--not destroy them. Lawyers are meant to be facilitators, of conversations and of interactions; the law is meant to provide us with protection, lawyers are to safeguard that duty to protect.

Without laws we would have tyrants.

As a medic I learned I had an equal duty to all injured on the battlefield. We triage and heal no matter who is injured; we obeyed orders, but our ultimate duty was to the profession. Lawyers are expected of the same; obey the laws, but dedicated to a profession that creates a safe environment for the public at large to conduct themselves in a broader discourse of social progress.

Lawyers are not judges nor are they businessmen or businesswomen; lawyers are there to make sure our members of society can interact safely and in a civil manor.

Lawyers are expected to separate their personal opinions and concerns from their professional engagements. It is a service of candor, competence, and confidence, owed to the profession and to society at large. The lawyer is selfless; the client is a lawyer's primary obligation, but a client is part of an ecosystem of social interactions. The lawyer's profession obligates him/herself to those open skies but the lawyers may not fly.

'Dreamer' by Hutch

Flying is for dreamers; a lawyer's hope is for others to dream big and to dream amazing flights. As for me, I have not decided if I want to dream and fly or if I have the will to make the sacrifice and help others to fly and dream even bigger dreams.

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