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To Live Outside the Law You Must be Honest

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Years ago, O best beloved, there lived a musician, both popular and influential. His name was Bob Dylan. Some of you may remember.

Dylan’s lyrics grace the lists of most popular lyrics of all time, including my favorite, “the ghost of electricity howls in the bones of her face…” from Visions of Johanna.

But some lines were more than just poetically evocative – they also hinted at serious truths. One such line was today’s title: “To live outside the law, you must be honest.” The lyric is from Absolutely Sweet Marie, from (IMHO) his greatest album, Blonde on Blonde, recorded in New York and Nashville in 1966. As with all Dylan songs, who knows what the artist meant, he’s not talking – but here’s what I take it to mean.

It’s easy to color within the lines. It’s easy to paint by numbers, fill in the check boxes, meet the specs and follow the regulations. In short, to follow the law. But when it comes to issues like trust and ethics, balancing social responsibility and profits, navigating between government demands and consumer demands – it’s not enough.

It’s tempting, taunting, tantalizing, to look to the law (or corporate guidelines, or regulations) for guidance when faced with a difficult issue in client relationships, customer satisfaction, or ethical issues. It’s also a copout.

Issues of ethics and trust demand a higher order of resolution. When faced with a client demanding to know the truth about some matter, how much truth do you share? The ‘law’ will clearly tell you what truths not to tell; and if you want to argue from omission, what truths are therefore not restrained. But your client – or your constituencies, or your legacy – isn’t going to be satisfied, in part because all you’re doing is citing ‘the law;’ you’re not taking any responsibility.

Being Honest, Being Principled

In this situation, I’m equating “be honest” with “be principled.” Principles apply to more than just honesty, but honesty will do fine as a stand-in for other principles. The point is – you’d better have something more than chapter and verse at hand to satisfy a demand for trust or fairness, whether from clients, employees or society at large. The statement “but it was legal” doesn’t cut any mustard in the higher courts of human interaction.

If you’re looking to be trusted, compliance is de minimis; by itself,  even inflammatory. “Sorry, that’s the law” is only slightly more satisfying than “Sorry, that’s our policy,” or, “Sorry, that’s not how we do things around here.”

Instead, you need principles – rooted in human nature and human relationships. Principles like service to others, or collaboration, or transparency, or don’t treat others as means to your ends. It’s principles like these that provide better guidance to tough decisions. (It’s also principles, that in the long run, must undergird the law itself for the law to be seen as legitimate.)

Your client wants to know what principles are driving you to be opaque and malleable about your pricing. Passat owners and VW dealers want to know what principles, if any, justify the slow drip of revelations about accountability. Apple shareholders and customers are very much vested in wanting to know the principles behind Tim Cook’s position on security – and the government makes its case best when it challenges Apple on principle grounds, e.g. arguing that the real motive is brand enhancement.

Living Outside the Law

To “live outside the law” doesn’t mean you’re a criminal – but in Dylan’s meaning, it does mean you’re an outlaw. You operate in part outside the narrow proscriptions of the law; you find affirmation by others of your actions by grounding them in broader principles.

That’s ultimately what makes others trust you. We live our daily lives by universal principles that others recognize as legitimate as well. We don’t trust people whose ‘ethics’ amount to rote checkbox compliance. We trust those who come from someplace deep, a place where connection to others and relationships with them are bedrock. People who feel their principles and are confident enough in them to re-compute them in every situation, as if for the first time.

If you’re going to live outside the law – and you should – you’d best be honest.

 

Blawg Review #275

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This week, we are very proud to play host to the blog carnival for everyone interested in law, Blawg Review.  Trust Matters readers, please say hello to the nice visitors from Blawg Review. Blawg Review readers, welcome to our little sandbox and please make yourselves at home.

A Bit of History

It was two years ago and change that we played host to Blawg Review #150, so it’s high time we hosted again. 

Not only that, but the famously anonymous Ed. (short for ‘editor’) of the Blawg Review is simultaneously hosting this month’s Carnival of Trust. Touching, and appropriate, as Ed. played an enormous role in getting the Carnival of Trust off the ground at its inception.

But enough about common lineage. Let’s start with the post “Trust and Compliance” by Doug Cornelius, where he pretty much nails the distinction between those two key concepts (with a Jennifer Hagy cartoon for good measure). Which comes first?  Does one cause the other? Is one a necessary or sufficient condition for the other? When do we need trust, and when compliance? Doug is crisp, succinct, and I think solidly right. 

And wait—what’s this? More common lineage: Doug just happens to have hosted last month’s brilliant Carnival of Trust as well. It’s getting all incestuous around here. 

Moving right along.  Eric Turkewitz at the New York Personal Injury Law Blog gives some lessons on blogging etiquette and just plain class, and displays said class himself by using Walter Olson as an object example.   

David Kopel at The Volokh Conspiracy went to the movies and was inspired to write Understanding Inception. Two of the 60 comments sum it up: “Fantastic analysis of the movie,” and “the analysis was better than the movie.” Which raises an obvious conundrum—to go see a meta-movie, or to just read the meta-review? Maybe I’ll just sleep on it. 

Also in The Volokh Conspiracy, Eugene Volokh covers the law’s struggle with that age-old riddle, Q. when is a rape not a rape? A. when it’s religiously permitted. The lower court agreed; the appellate court reversed. 262 commentators continue the debate in the Green Room; hurry and you’ll be #263.

David Lat at Above the Law has the Quote of the Day: What Crawled Up His Robe?

Scott Greenfield at Simple Justice has a different spin on the same case, in Unexplained Removal For Unfortunate Hostility (Update: Explained, Sorta).  Judges are hostile all the time, says Greenfield—to the defense, that is. But why the unprecedented removal of a judge—is it for being hostile to the government?  SG is suspicious. A novel position for SG, but hey just because you’re paranoid doesn’t mean… And he just may be right.

Criminal Defense Attorney Mark Bennett at his law blog Defending People re-invents the concept of Inbound Marketing for lawyers: nothing makes you so credible as recommending others along with yourself. Read his Small Lesson. A lesson not just for lawyers, or even marketers, but for the Manual for Living Life.

Criminal Defense Attorney Mark Bennett, on his Social Media Tyro blog asks ‘which do you want–reputation or exposure?’  They’re not the same.  

Want your blog to drive traffic to your website?  Kevin, at Real Lawyers Have Blogs, asks the right question: Why Would You Want That?

Can you tell when someone’s lying?  That debate will continue unabated, but here’s a small cool part of the puzzle from Keene Trial Consulting, in We Know Liars When We See Them.  Folks who watch the TV show Lie to Me do not get better at telling when someone else is lying; but they do get a lot more suspicious about everyone.  Want to empanel a jury of conspiracy freaks?  There you go.  You’re welcome.

As long as we’re on the subject of not-nice behaviors, Dan Harris at China Law Blog raises an interesting question about bribery.  Does Your Home Country Even Care?  He notes a recent report on how actively home-countries enforce anti-bribery laws on companies doing business in China. Interesting to see which countries are high- and low-active countries; interesting, Canada, eh?

Big fish, little pond? Or little fish, big pond? Ashby Jones at the Wall Street Journal Law Blog has the answer: New Study: Forget the Rankings, Just Bring Home Straight A’s

Apparently HLS students agree with Jones’ blogpost above, being as how they’re all atwitter over a nonchalant attitude toward grades by a prof and the administration. Read Elie Mystal at Above the Law: Grading Shenanigans at Harvard Law School? Spring Evidence Students Confronted ‘Irregularities’.  Hey no problem; just send them a copy of that study,  Sander & Yakowitz’s paper, I’m sure they’ll get over their bad Harvard selves and see the light.

Frank Pasquale at Concurring Opinions helps distinguish between being Anti-Business and Anti-The Worst Businesses. There’s an added bonus in a lengthy comment to that post by Patrick O’Donnell.

What’s the penalty for offering to take sexual services in barter as payment for legal services rendered? In New Jersey, it’s a one-year suspension.  Bobby Frederick, of South Carolina Criminal Defense Blog, seems to think that’s odd.  Fuggedaboudit, Bobby. 

Walter Olson (not a lawyer, but the proprietor of the oldest "lawblog" Overlawyered) writing on the law at Cato about the ADA and the Chipotle Grill Experience. What does the ADA filing mill have in common with patent trollery, copyright mills, and “citizen suit” filings? They’re all like the sausage factory; pretty ugly inside.

Speaking of ADA, did you see last week’s Blawg Review #274 at LoTempio Law Blog, marking the 20th anniversary of the American’s With Disabilities Act?

In closing… Insurance lawyer George M. Wallace blogging personal interests on his "fool in the forest" blog.

And that’s it. Many thanks to Ed. for the honor and privilege of once again hosting the Blawg Review.  Followers of law blogs and regular readers of Trust Matters will find more great links to blogs worth reading in the last Carnival of Trust, hosted today by the Editor of Blawg Review.  Enjoy!

Can Trust Replace Contracts?

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SafeToo often trust is thought of as a nice-to-have but vaguely soft, squishy, liberal sort of relationship thingy. Not often enough do we realize it also holds the key to reducing costs and time, and to fostering innovation and new value creation.  It also mitigates risk.

It’s true: trust is highly profitable. Consider how Warren Buffett acquired McLean Distribution from Walmart. By deciding to trust the management team at Walmart, Buffett reached an agreement in a matter of days and at minimal cost, saving months and many millions in cost.

You may be saying, ‘Fine—but who’s going to double-cross Warren Buffett? It’s different for him.”

I don’t think so. Let me add my own small lesson.

To Sign a Contract? Or to Trust?

In addition to speaking and writing, I run a seminar business. I’ve spent this week training a half dozen worldwide potential trainers, sharing with them all the training manuals, approaches, ideas and concepts that I have developed over the years.

Normal procedure would be for me to have them all sign a non-disclosure agreement to protect my intellectual property, which is, after all, the source of my livelihood. Such agreements can be more or less complex. If violated, they give me the legal right to pursue redress in courts in various countries should one of my licensees/coaches/contractors abscond with my materials or be found to be using them for their own purposes without properly getting my approval or compensating me appropriately.

I could have done that.

Instead, I explained to them that I would prefer to trust them to do the right thing. We went through a 60-second ceremony. All of us raised our hands and, looking at each other, pledged two things: to respect my intellectual property in the commonsense way they felt was right; and if there was any question about what that meant, to talk to me and the rest of our team about it.

No papers. No contracts. Nothing written. Not enforceable in any court of law.

Where’s the Enforceability in Trust?

I feel more protected by this oath than I do by any legal agreement I might have signed. Why? Certainly not because it’s enforceable in a court of law.

Rather, because it’s enforceable in a higher court; the one of their conscience. Conscience is triggered by conscious, collaborative relationships between human beings.

I have no doubt that this group of people, with whom I have worked closely over several days and for months preceding this gathering, will honor the pledge. I trust them. This is partly because of who I know them to be, and also partly because I trust them.

Trust is not something you work on directly; trust is a result. It is the result of two parties interacting: one who trusts, and the other who is trusted. You can practice both trusting and being trustworthy. Probably the fastest way to make people more trustworthy is to trust them first.

Is it risky? Of course.  But I think it is less risky than relying on the rather impersonal and tenuous threads of trademark law. My recourse to legal violations is courts, which are costly, time-consuming, and generally manufacture ill-will in the pursuit of their justice.

By contrast, trusting my business relationships itself increases their trustworthiness, which also lowers my risk–and at near-zero cost. My means of enforcement is pre-installed within them in the form of their consciences.

It’s a win-win. Except maybe for the lawyers.

And frankly I think there’s room for lawyers to gain from this too. But that’s another blog.

Listening for Litigators

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Jean is an experienced attorney in California—doing mainly litigation.  She told me how she practices listening while taking depositions.

Jean: The main thing I do is I’m genuinely curious about what the defendant thinks.  I’m just curious.

Me: Don’t you have to find weaknesses in their stories?

Jean: That’s an outcome, not an objective.  I’m not looking for “gotchas” as an end in itself.  If I can understand their full story from their perspective, then I can understand where their case is weak, and where it’s strong.  Then in court I have no danger of taking things out of context—I know their context.

Me: Do people share things with you that are surprising?

Jean: Astonishing.  Sometimes their own counsel will elbow them to say, ‘shut up, that’s enough,’ and they’ll push back ‘no, I want to tell my story.’  People just want to be understood. 

Me: Don’t they know you’re hostile?

Jean: They know. But I think the desire to communicate overcomes that.  And, I suspect, if they feel heard and understood, then perhaps they’ll be more accepting of the court’s outcome—they’ve had their ‘day in court,’ and I play a role in that.

Me: Does this work for you?

Jean: Hugely.  The younger lawyers acknowledge me as being pretty effective.  They want to know how I do it.  I tell them, but they don’t get it.

Me: How’s that?

Jean: I have no secrets; I tell them the trick is to be a good listener, which means being curious about what makes the other person tick.  But they don’t seem to be able to get it.

I think in part it’s because they simply do not know how to listen, at all.  Hence they can’t hear me when I try to explain how to listen.  If you can’t listen, you can’t hear someone explain it.  Maybe they think it can’t be so easy.

Maybe it’s because they can’t get out of the adversarial mode.  Maybe that comes with maturity.  You don’t have to fight all the time to win cases.  Sometimes you just go with the flow, and you end up winning because of it.  They can’t seem to grasp that simple Aikido-like principle, use the energy presented to you to find the right answer.  And if you’re right, you win.  And if you didn’t win, well maybe you were wrong.

I was very taken by Jean’s description.  Isn’t this how the law, and lawyers, should function?  With genuine curiosity about the litigants’ respective positions? 

Is being an advocate necessarily at odds with forming relationships?  I’d like to think not, and that Jean is one of those who seems to understand just how to do it.
 

Lawyers Overdrawn at the Trust Bank

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To watch TV, you’d think cops and prosecutors are pretty much sworn mortal enemies of criminal defense lawyers. And, according to Scott Greenfield, a distinguished lawyer and author of the blog Simple Justice, you might not be wrong.

But it didn’t used to be that way. In Greenfield’s When the First National Bank of Criminal Law Closed Its Doors, he describes how it used to work, in the Bronx court system of just a few decades ago (described by Tom Wolfe in Bonfire of the Vanities).

…one of the first things you learned was the sanctity of a “contract.” When you sought a favor, you owed it back. If you didn’t pay on demand, your name was mud and no one would ever do you a favor again. In fact, people would go out of their way to burn you. It was a matter of internal honor.

[talking to young lawyers recently]…not one of them knew what a contract was, or how you banked one or how you made a withdrawal…They couldn’t believe…those of us who worked in criminal law were actually able to cooperate with each other. They couldn’t fathom the existence of an unwritten honor code where we trusted each other to return the favor, or conceive of a virtual bank where our contracts were held, awaiting the day we needed a favor in return.

 

“Competition” used to mean the healthy thing you learned to do on the ballfield that carried through somehow into business. It made for an efficient systemic approach to commerce. Then, sometime, the approach became the goal.

The adversarial legal system presumably used to serve the higher goal of justice. Now, apparently, the legal equivalent of the invisible hand needs no help from its mortal agents to arrive at justice. Or—more likely—justice is not quite the goal it used to be.

The day Tiger Woods denies a competitor a gimme putt in a casual game we’ll know it’s all over.

Until then, make a few deposits in others’ trust banks. And honor the deposits made in your own.

Do Non-Solicitation Clauses Pose Conflicts of Interest?

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I would sincerely like to ask my professional services readers, and particularly those in the legal profession, for some help. I’m not being snarky or sardonic this time, this is a genuine request for perspective.

Professional services firms commonly have several clauses affecting relationships with their employees and subcontractors. The list includes non-competes, intellectual property restrictions—and non-solicitation clauses. It’s this last one I want to focus on.

Most such clauses boil down to something like “as long as you work here and for X time after you leave (typically up to two years) thou shalt not approach a client (or future client, or anything vaguely resembling one who ever breathed the same air as you) with the intent of selling work ‘similar’ to what you did for us.”

Or, in simpler terms: hands off–that client belongs to the company, not you, and we’ll sue if you try to steal ‘our’ client from us by doing what we hired you to do.

As you can tell, there is something that rubs me the wrong way about this. Yet I also have a feeling I’m missing something. Most things in life exist for a reason. I may be missing a big fat reason on this one.

Here are the arguments against such clauses, as I see them.

• Firms requiring this clause position their clients as property to be bartered over. The phrase “who owns the client” has to be somewhat offensive to the putatively owned client.

• There is an inherent conflict of interest with the principle of client service. Say an ex-employee or subcontractor develops a better product, at a lower price, offering greater value, and meeting a need clearly expressed by a client of the existing firm. Non-solicitation clauses mean the employing firm is preventing their client—to whom they are presumably devoted to giving great service—from even hearing of the potential better deal. This is a “dog in the manger” strategy. It may not be legal restraint of trade, but isn’t it a violation of basic client service principles?

But, what’s the other side? What’s the social rationale for non-solicitation clauses? Can someone offer an explanation of how they are, on balance, in the best interests of client, employer and employee together in the long run?

Thanks in advance for any enlightenment; I look forward to the dialogue.

Blawg Review #150: Updated!

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UPDATE
This piece from today’s Wall Street Journal Law Blog post by Dan Slater about the 60 Minutes story on legal ethics broke after the Blawg Review went up, but I think it’s important enough that it deserves a place in the review, alongside Howard Bashman’s original post. The commentary makes for relevant and compelling reading.

Welcome to this week’s presentation of Blawg Review, the 150th issue of the blog carnival for everyone interested in law.

I was introduced to blog carnivals by my friend and colleague David Maister, one of the co-authors of The Trusted Advisor book. David hosted Blawg Review #76 and #131 and agreed with me that a “carnival of trust” would be interesting as well and, hopefully, just as popular.

The famously anonymous editor of Blawg Review most graciously offered his experience to me as a mentor during the early development of the Carnival of Trust. I hosted the first two editions here on Trust Matters. My new blog carnival mentor at Blawg Review hosted the third. Since then, the Carnival of Trust has been hosted by David Maister, Steve Cranford, John Crickett, Ford Harding, Michelle Golden, and Duncan Bucknell. So, it’s with a debt of gratitude to lawyers who blog that I’m pleased to be hosting Blawg Review #150 on Trust Matters this week.

All lawyers, whatever their specialties in law, strive to be trusted advisors. In books, articles, and posts on this blog, I’ve written extensively on matters of trust, including topics of special interest to lawyers. I encourage those of you new to my site to explore my resources on building trust.

Disclaimer: this issue of Blawg Review includes subjects of interest to everyone, not only lawyers! While I’m not an attorney, I’ve discovered many interesting and helpful blog posts by lawyers, which I’m pleased to present in this Blawg Review #150. So here we go.

Raymond Ward has an excellent quotation from George Orwell advocating clear language. I might add that speaking and writing clearly and without jargon goes a long way to establish trust.

Sheryl Sisk Schelin posts Seven Days of Inspiration, which reviews non-legal websites that are among her favorites.

Kevin O’Keefe shows us nine ways to find the top legal blog in niches. Tip: it works for niches outside the law just as well.

Marc Randazza considers a proposal for the “Internet Notary” to harness the power of the free market to correct irregularities in the marketplace of ideas.

Jeremy Phillips couldn’t bring himself to write up the latest chapter in the litigation saga concerning the “Budweiser” name, so he solicited a few “buds” to compose Budweiser-themed haikus.

Those who appreciate real haiku will not want to miss this retired antitrust lawyer, David Giacalone, who writes snowjob: lessons from the other big vote.

Jim Chen revisits a previous topic and suggests again that law schools should do more to teach commercial law. Who could argue with that? Find out.

Gordon Smith discussed whether college-bound athletes can sue over rescinded scholarship offers. A good test of commonsense vs. the law, or so it seemed to me.

In the California gay marriage case, Dale Carpenter doubts the court will find for its advocates.

Mike Masnick, Tim Armstrong, and Kevin Donovan all discuss whether the decline of Digital Rights Management diminished the authority of the DMCA.

Eugene Volokh had another strong week with posts concerning the imposition of women-only hours at Harvard’s athletic facilities and a California court’s attack on home-schooling.

Kip Esquire takes the libertarian view on the ruling of the California Court: No Right to Homeschool.

Kevin Underhill nicely captures the comedy and pathos in a dramatic doughnut-related crime in Oregon this week. Some lawyers specialize in droll humor, and I love ‘em. Kevin is one.

Scott Greenfield says Some Alternatives to Sentencing Are Just Plain Bad.

Casey lives on Capitol Hill in Washington, D.C. He is a law student and works in politics; his name has been changed to protect his identity in this case. His story about what it’s like to spend five grim days in the D.C. jail is awful, but other inmates from the DC Jail could tell worse. “Casey” raises some pretty big social issues in a compelling way.

E.L. Lipman mourns the loss of a mentor-in-chief, William F. Buckley, Jr.

Judah Zuger at Changing the Court, a chronicle of how a group of planners and practitioners are attempting to change the Bronx court system’s approach to low-level criminal offending, tells a heartwarming story about youth giving back to youth.

“I’ve always loved the Billboard Liberation Front’s unique brand of civil disobedience, but this time they’ve outdone themselves,” writes Kevin Jon Heller. Comments ensue.

Eric Turkewitz reports that Allstate Slammed With RICO Charge Over Sham Medical Exams, and A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge anonymously in the next post.

Jaya Ramji-Nogales discusses Renting a Womb: Outsourcing’s Next Frontier.

Douglas McNabb reports that the Untied Arab Emirates passed a law against human trafficking.

Peter Black links to a video that explains Twitter to those who don’t get it.

Barry Barnett tells a story of “Settlement Negotiations on Trial”.

Stewart Weltman gives the counter-argument to the leverage-is-good law firm model in a post he titles “News Flash – A Legal Consultant Gets It All Wrong When It Comes To How Lawyers Can Best Serve Their Clients“. Know what? He’s dead right.

Holden Oliver quotes the firm’s name partner, Dan Hull, who advises “Watch your clients’ money like it’s yours.”

Dan Solove considers Facebooks banishment of David Lat and due process. Who owns the right to social rights in privately held social networks?

Deven Desai asks Who Owns Your Emails, Blog Posts, or Facebook Pages? How About You?

William reports on a Night out on the town for Ricky Raccoon.

Ricky Gervais Inspires Copyright Opinion is discussed at length in an excellent blog post by William Patry, Google’s Senior Copyright Counsel. He quotes a fine judge, who has this description about the putative inclusion of IP within some corporate training materials: “They are aggressively vapid; hundreds of pages filled with generalizations, platitudes, and observations of the obvious.” Yup, that would be pretty right.

John Wallbillich looks under the covers of Legal Directories: Insight or Indulgence? Are Legal Directories the equivalent of the Yellow Pages? Or are they high-touch opportunities or competitive differentiation?

“Apparently there is a national movement supporting the rights of students to pack heat on college campuses,” writes Dan Filler.

Howard Bashman reports on a “26-Year Secret Kept Innocent Man In Prison; Lawyers Tell 60 Minutes They Were Legally Bound From Revealing Secret” .

Jim Maule writes with authority about Using Taxation for Non-Tax Purposes. You’ve heard this argument before—but not with this data.

Brenda Cossman considers when government funding becomes censorship.

Duncan Bucknell, who’s hosting the March 2008 Carnival of Trust, has this week’s roundup of IP Think Tank Global Week in Review.

R. David Donoghue at the Chicago IP Litiation Blog, which will host the May editon of the Carnival of Trust, has More on Toy Trains: Should Derivative Works be Registerable Without Permission?

Brett Trout looks at Patent Lawyer Porn.

Non-traditional lawyer Steve Cranford makes the case that “Committees Can Kill Even the Greatest Idea” is one of the Laws of Branding.

Former GC Anita Campbell, discusses Why A Positive Mental Attitude Matters During Recession.

Bruce MacEwen at Adam Smith, Esq. considers the problem of attrition at law firms: is it process or passion?

“So now comes the test. You’re a professional firm, with a variety of practice areas or target industries. Due to turmoil in the markets, business is down (or is forecast to be down) in one or more of our major areas. What do you do?” asks David Maister. You know the answer: now try to defend it.

Thanks to everyone who submitted or recommended posts for Blawg Review #150, especially to Colin Samuels and Diane Levin, who each sent me several recommendations but not their own excellent posts that I’ve cleverly hidden in the links to their names. A special thanks to the selfless editor of Blawg Review, whoever he is, for all the help and guidance with this and the Carnival of Trust.

Blawg Review has information about next week’s host, and instructions how to get your blog posts reviewed in upcoming issues.