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Law's Culture of Wimpiness: The ABA and James Comey

Vivia Chen

November 5, 2016

How ironic that lawyers have reputation as pit bulls who can't resist a good, knock-out fight. From my perch—as a former lawyer and journalist—I'd say the opposite is often true. While lawyers can be royal pains in advocating for their clients, there's also a side of them that's oddly passive/aggressive and, sometimes, just cowardly.

That noxious blend was evident in two recent events. In one, the American Bar Association censored an article about Donald Trump's history of bringing libel suits. (Originally titled “Donald J. Trump Is a Libel Bully but Also a Libel Loser,” the article alarmed ABA officials who called it a “partisan attack piece” that could invite a lawsuit by Trump.) The other involved FBI director James Comey who told Congress that the FBI would be reopening its investigation of Hillary Clinton’s emails.

The ABA episode is a classic study of cowardice in the face of a big, bad bully: It cowered to the mere threat of legal trouble—even before Trump gave any hint that he'd sued. (Granted, Trump probably didn't know that the article was in the works, and the ABA now contends it didn't really exercise censorship.) Happily, the followup is that the the article in its original form is getting published. (In its passive/aggressive way, the ABA "allowed" publication after author Susan Seager, a First Amendment lawyer, resubmitted it.)

The Comey matter is more complicated. In a nutshell, he announced that newly discovered emails found on Anthony Weiner's computer (the estranged spouse of key Hillary Clinton aide, Huma Abedin) necessitated further review. What's controversial, among other factors, was that Comey said the FBI didn't know whether the emails were "significant" to its inquiry—plus, that the review would likely extend beyond the election.

Comey raised the specter that Clinton might have done something very bad, maybe criminal. At the same time, though, he's saying, "hey, it might be nothing." Essentially, he's trying to say he's done his job by just putting the fiery issue out there—and letting it burn.

I'm not unsympathetic to Comey. He's in a no-win position: He'd be criticized by the Right if he didn't disclose the new email finds. And, of course, he's getting plenty of grief from Democrats for opening this can of worms 11 days prior to election day. In fact, both Democrats and Republicans are angry at him for a variety of reasons. One of the leading reason is that he breached Department of Justice protocol by announcing an investigation that could tilt the presidential race so close to election day.

I have no idea whether Comey is trying to tip the election. What's clear is that he undoubtedly felt the weight of political pressure. Even clearer is that he's trying to save his own skin. And who can blame him?

That said, the actions (or lack thereof) on both the part of Comey and the ABA more or less reflect the lawyering class. (Yes, Comey is a lawyer. He started his career at Gibson Dunn & Crutcher, then served in the U.S. Attorney's office in New York and Virginia.) Lawyers—certainly ones in big private practices or government—aren't encouraged to be heroic. That's not the prevailing culture of the profession.

As any newbie lawyer knows, the first lesson is to cover-your-ass. It's the golden rule not only with client relations, the public  but how lawyers deal with each other within the institution. That means leaving a clear paper trail as to how decisions are made so you can say, when necessary, "hey, it wasn't my idea." Or leaving no trail at all and saying nothing.

Secondly, lawyers are trained to be deferential to those with money or power or bullies (who might be one in the same). For instance, it's telling that a recent study by consultants Patrick McKenna and David Parnell find that 40 percent of managing partners surveyed say they were too scared to discipline high-earning partners who behaved like bullies, reports law.com. (McKenna and Parnell found that 93 percent of the 124 law firms polled  reported “bullying” at their firms, and that one in four firm leaders admitted to ignoring offenders altogether.)

In any case, neither Comey nor the ABA is likely to get an act of courage award. But then again, they weren't aiming for that, were they?

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Great article! In my opinion, the two biggest problems with the legal profession are that it is a profession that is both afraid of and lacks innovation, and it is also a profession that believes the road to its future existence is trough protecting the status quo. Once again, it is afraid of change. This is driven by the ABA, State Bar Associations, and then supported by the bulk of the legal practitioners. This is just my opinion.

You give some good examples of managing partners being afraid to discipline other firm partners. But as the managing partner this is his/her job. No other business outside of legal would allow their CEO, COO, or other management professional to fail to address the issues that you describe. You can't run a successful business this way. I guess we now know why the legal profession is utterly afraid of non-attorney C-level management. The profession hides behind unsupported ethics arguments when it comes to addressing the fact that law practices are businesses and need to be run as such. But really the profession is simply trying to protect the status quo, which is why it has become so difficult for many law firms, practitioners, and the profession in general to actually thrive. Again, just my opinion. Great article!

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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: [email protected]

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