No, We’re Not Doctors [updated]

In anonymous commentary on JD Underground, the subject being a lively discussion with a lawyer who publicly gave a wrong answer—I thought harmfully wrong—to an ethics question, “patentesq” ((1,238 posts on JD Underground since May 9, 2012)) wrote:

I can’t imagine a group of medical doctors acting this way… law is a sickening profession in so many ways.

I confess that I don’t know who JD Underground’s denizens are. Dropping in there is like visiting a party at which a bunch of doughy masked frat boys alternately slap-fight and masturbate each other. It’s frankly disturbing. “Patentesq” might be a patent lawyer. Or he might be a twelve-year-old boy or a federal judge or a guy who likes to wear vinyl shoes that look like shiny leather. ((They’re patentesque.))

The fact that there are lawyers who thrive on conflict is foreign to patentesq and makes him all queasy, but still he makes a good point: medical doctors don’t publicly call out each other’s bullshit.

If they did, we would see doctors publicly criticizing doctors such as Emmette Flynn and Michael LaPaglia who sacrifice their ethical principles to comply with the unlawful commands of government agents.

We didn’t.

Who talked about Flynn and LaPaglia, who filed a complaint with the Board of Medical Examiners against Flynn?


Who rejected the complaint against Flynn because he vas chust follovink orders?


No, you wouldn’t see a group of medical doctors behaving that way because they’re in a cozy little club in which being liked is more important than correcting problems. ((Perhaps the patent bar is like that too.))

The criminal-defense bar? Some of its less passionate members ((The handjob-and-kolache crowd.)) prefer playing nice, sure, but generally not. We criminal-defense lawyers brawl for a living. We buck the majority all day every day—every client is someone whom most people want to see in a box. Since we’re thwarting the will of the majority, most people think we’re assholes anyway, so what the hell, we tell them the unvarnished truth.

We tell each other the unvarnished truth. It doesn’t do my client any good to have other lawyers tell me my defense is great, when in fact it’s the stupidest thing since Rakofsky v. Internet.

Most of us don’t get our panties in a wad when we get told that we’re wrong, which is good because we get told that we’re wrong all the damn time. We have sharp tongues and thick skins.

Fennell, and those who think I should have used some phrase more genteel than “ignorant twaddle” in my assessment of her ignorant twaddle, are operating under an incorrect assumption: that I intended to teach her something.

I’ve long since given up trying to teach lessons to unwilling students. If Fennell had wanted to take the lesson, she was welcome to it, but my Avvo comment was intended only as a small monument—one that I had no reason to think anyone would ever see—to incompetence in Avvo Answers, like planting a flag of reason on a distant asteroid of nonsense.

I didn’t think Fennell was stupid, or incompetent, much less nefarious, but she was ill-informed about a subject that lots of lawyers don’t understand, and that I’ve been trying to educate people about for years. ((A similarly ignorant lawyer, Dionne Press, tried to get the DA’s Office to file charges against me once for talking to her client.))

That Fennell took it as a personal affront, and then went off on a tear of dishonesty, anger, and bigotry was an outcome beyond my wildest dreams. She may never see it that way—with every word she sees herself as winning—but Fennell made herself an object lesson. Maybe thanks to the added attention some other lawyer will realize that the ethical rules don’t bar a lawyer from talking to an already-represented person who wants to hire him. Maybe one such lawyer talks to a represented person, realizes that the client is getting screwed, substitutes in and rescues the client’s future. The possibility makes me grateful to Fennell.

But as patentesq says, this never would have happened with doctors. If one doctor posts in a public forum, saying “a doctor must treat an unconsenting patient if asked to by law enforcement,” some other doctor might gently correct him: “no, brother physician, the principle of respect for authority requires that you follow the patient’s wishes.” Or they all might just leave it alone. Because being liked is very important.

And those ill-informed doctors who agree with the original poster—who aren’t stupid or incompetent, much less nefarious—will go blithely and ignorantly on, assaulting people with what the Fifth Circuit called “greater affront[s] to [their] dig­ni­tary inter­est than full-on exploratory surgery.”

Screw that. I like our way better.

12 responses to “No, We’re Not Doctors [updated]”

  1. Wisdom, not professional ethics, urges reluctance to communicate with a represented person in most contexts, both to avoid the appearance of soliciting and to avoid interference with another professional’s conduct of the case. Second attorney on a case usually has a rougher go than the first; the second may bear professional responsibility for two lawyers’ latent or dormant mistakes, not just one.

    Key word is “most”, of course; most are nowhere near the $25K and gone scenario which, if substantiated, represents breach of contract, ineffective assistance, malpractice and probably disbarrable conduct in most states.

    • I disagree. I think that, assuming that we are competent and available to take the case, we ought (as in “have a duty”) to communicate with those seeking to change counsel.

      The talk need not go very far. My first advice to the client seeking to switch lawyers is, “You have to have a criminal-defense lawyer who you trust. Trust is everything. You’ve already got a relationship with Mr. X. See if you can find a way to trust him; talk to him about your concerns. If you can’t trust him, we’ll talk.” I will also talk up Mr. X to the client if I can truthfully do so. Mr. X isn’t communicating very well, but that doesn’t necessarily mean he’s doing a bad job.

      Sometimes the client’s response is, “it’s too late for that.” If the relationship between the lawyer and the client has deteriorated that far, someone has to counsel the defendant. And you can’t know whether the relationship has deteriorated that far without talking to the client.

      Think about this: if you don’t talk with the client and steer him, if appropriate, back toward the guy he’s already paid, the next lawyer he calls will be someone less fastidious and less competent than you.

      It’s true that Lawyer 2 has to fix Mr. X’s screwups, which she wouldn’t have to do if she had been hired at first. But responsibility for Mr. X’s latent or dormant mistakes is not a reason to refuse a case. It’s just a reason to be smarter, work harder, charge more, and manage expectations.

  2. Mark- The comment you responded to was ” I cant imagine a group of medical doctors acting this way… law is a sickening profession.” How very non-judgemental of the author. What the author fails to recognize, what many pompous pontificating doctors fail to realize is that the two professions are, for doctors, uncomfortably alike.

    When I was a bit younger and fully engaged in the slavery known as “marriage”, I knew a lot of doctors. My ex came from a wealthy family, so we rubbed elbows with rich people. We were in the society pages(truly ridiculous), I owned a tuxedo, attended Galas regularly and made the smallest of small talk with the smallest of brains. I despised every moment of it, but as a dutiful husband, I did my best to fit in. Thankfully, I never did fit in. (I obtained my liberation on December 26, 1996.
    My divorce was like the escape scene in “The Shawshank Redemption”, just not quite as pleasant.)

    While still married and attending the Gala dinners, I remember my profession as a “criminal defense” lawyer often being introduced by someone as a conversation novelty to the delight of my moronic dinner companions. It always drew great guffaws and disapproving looks and mutterings. I was a young lawyer and ill-equiped for the routine ridicule that I endured. Oh, I made the Constitution speech, but that always fell on deaf ears. What I most remember is that those who were loudest in their condemnation of what we do for a living were quite often Members of the “Medical Profession”.

    I no longer wear tuxes, attend galas or take ridicule from members of the grand ” Medical Profession”. I admit, now that I have had time to mull it over, I rather like it when a member of that profession makes the mistake of questioning what we do for a living. Now, When an esteemed member of the ” Medical Profession” questions ” How do I sleep at night after defending some cop killer”, the following exchange occurs:

    Q-You do not approve of my trying to save the life of a hardened-criminal who allegedly just shot a cop?

    A-NO, I do not!!!

    Q-When you were in your residency or a younger doctor, were you ever assigned to work in the
    emergency room?

    A- Of course.

    Q- And in the Emergency Room, When they brought in patients who were about to die did you do your best, pursuant to your oath, to try to save their lives?

    A- Of course I did.

    Q- And it didnt matter who the person was, you did your best to save them right?

    A- Of course it didnt matter.

    Q- When you were working in the Emergency room if they brought in a guy that was all shot up you would try to save him right? You would do your very best Right?!!!!

    A- Of course!!!

    Q- If they brought in a guy who was all shot up and they told you he had just shot and killed a cop who was a decent family man, pursuant to your oath, you would still have to try to save him wouldnt you?

    A- ( long pause)… Yes, I would have to.

    Q- Even though you might despise the patient and what he was accused of doing, You would honor your Oath and try to save his life, using all the skills you knew, right?

    A- ( Reluctantly) Yes.

    Q- Well, you see HERR Doctor, you and I have the same job. I too took an Oath that I must Honor. Like you, Even though I might despise what my client is accused of, I too must try to save my client’s life using all the skills I know. The only difference between our professions is that you perform your job in an emergency room and I perform mine in a courtroom…. By the way How do you sleep at night?

  3. Rob,

    I’ve felt your pain on that whole Shaw-shank Liberation thing. I would be Morgan Freeman to you Tim Robbins. You didn’t have to experience all that other stuff leading up to the rain scene I hope. In any case, aside from finer points of legal musings dealt with here, I certainly enjoy the occasional dry musings with the entire CJC “Family” (I know Mark – you refuse to be adopted) than with any other group of people. There’s a certain kind of Avatar aspect to conversations and story telling that a 1000 words are spoken with just a glance. Like when Mark Twain said: “There’s two colors of White; one, the color of a Wedding Dress. And the other, more like the belly of a catfish”. Criminal Lawyers, get comforted talking of such matters. with others in the profession. I know there are other members not spoken of specifically here: Prosecutors, Judges. In any case, there ought to be a more frequent and regular – in person – forum to share in such (therapy) good conversation.

    God Bless you all


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