Dear colleagues:
Many years ago, I was a young lawyer. Now I am an old lawyer. Along the way I had a wide range of life experiences, some good, some bad, but most were a combination. From that experience a number of operating principles or “rules of the road” have become firm components of my practice. They may or may not be interesting to you, but I will share them with you in case they might be.
In the future, when you are near the end of your careers, you should think about passing on your experiences that might inform your successors in their future professional lives. Each generation in a profession should at least try to help the next generation Improve and maintain the profession. The goal of service and collective (and individual) high standards is an important part of what makes the practice of law a profession and not just another way to make a living.
You will give and receive many lessons on how to be a “good lawyer.” Maybe writing down some of your suggestions will be one way to pass on some of your professional life lessons.
Mentorship and Healthy Habits
The legal profession is a necessary component of a modern industrial and commercial society. If the lawyers do not maintain reasonably robust standards of care and integrity, the society, your society, will be diminished. You will personally also find it easier to sleep at night if you perform honestly at a professional level.
I was very fortunate to have a mentor, Bill Gibbons, who always cut square corners. He was my first boss, a partner at Baker & McKenzie when I began to work in 1966. He was then about as much older than I as I, in 1978, was older than Dolly Lo when she began her career as a summer intern at Baker & McKenzie Taipei.
Bill never lectured me on the moral duty to play by the rules, to cut square corners. He just did not try to sneak past the stop signs in the hope that no one was watching. Many times, no one is watching. Sometimes, however, and perhaps at an unexpected moment, someone is watching.
I have watched with great sadness the destruction of careers of some colleagues who thought they could get away with what seemed at the time a small untruth in a small matter. Lawyers cannot count on getting away with “minor lies.” Particularly when the statement is on oath and under penalties of perjury. Careers have ended, even in “big law,” because of the mistaken belief that a modest lie was worth telling, perhaps “just this once.”
I always wondered what I might have done had I not learned by example from my gruff first mentor, Bill Gibbons. Maybe I would have had the strength of character to resist temptation, maybe not. Fortunately, I formed the habit early of telling the truth, and thus being spared the difficulty of making hard moral choices, one statement at a time for the next 22,000 days of my career. There are very great practical rewards trying to form habits that keep you away from the temptation to tell “good” or merely “acceptable” lies. Always remember that you are weaker than you would like to believe. Try to minimize the need to rely on your own moral strength.
Have I led a blameless life? Absolutely not. But I have been fortunate in having been able to avoid as much temptation by reducing the opportunities to fail. Much of that good fortune has resulted from simply forming a to tell the truth, to “cut square corners.” It is a lot easier than deciding to tell the truth as an exception. Maybe you are different.
Why Are You a Lawyer?
I decided to study law during my third and last year at Harvard College in Cambridge, Massachusetts. Harvard had a program that permitted you to skip your freshman year if you could pass various subject matter examinations distributed across various categories. My father worried that I would become a professional student if I stayed for the normal 4 years, so I had to decide what to do in my third year at Harvard, a year earlier than I had planned. I had given little thought to law instead of medicine or instead of life on the high seas. At age 20 I expected to live forever, and there was no rush to stand on my own two feet.
I had some curiosity about the “common law,” the system of judicial decision making followed in the English-speaking world. I wondered if it might extend the inquiry I had begun into the “natural law” philosophy of Plato and Aristotle as an undergraduate.
I had no money for law school, nor even the certainty that law would be a sensible profession for me. So, I arranged to enlist I the Marine Corps officer candidate program. The idea was to spend 3-4 years in the Marines, then attend law school if it still made sense.
Harvard Law School accepted my exploratory application and even provided generous financial aid. I decided not to join the Maries and to go straight to law school after graduating later in 1963.
When I arrived at Harvard Law School, I discovered after about 6 weeks that there was no meaningful nexus between the natural law philosophy and the pragmatic operational goals of the courts in developing and applying “common law.” But I was intrigued by the way the law was used to pursue orderly relations among the people in a community.
This illustrates the truism that “Life” is comprised of a mixture of plans and unexpected surprises. The Beatles were supposed to observe that “Life is what happens when you have other plans.”
I mention this because many of you may not have been born with a deep and abiding commitment to managing society through the practice of law. You, like me, may have become a lawyer because there was no other obviously better way to do your life’s work. But once in it, you must do it the right way or get out. The practice of law is a profession and not just a way to make a living. Other people depend on you. If you take up that burden, you are not free to do a sloppy job just because you are not interested by the client’s problem or you have another better use of your time. Once you take up a client’s problem, it is not all about you.
Some may have decided to practice law in order to make a lot of money. Bad idea. If you do it correctly, you are unlikely to have much time to spend the money you make. And you are unlikely to make enough to protect your family from having to work, etc. In other words, if you do not find real satisfaction in solving the problems, and you want to make money, maybe you should be an investment banker instead.
Some of my law school classmates have become billionaires as private equity investors and fund managers. They made the correct choice to change their line of work after trying “big law” for 5-10 years. Good for them and good for the clients they might have injured if they had been unable to give their undivided attention to the client’s problem.”
Deal with the Situation
Do Not Waste Time on Wishful Thinking or Excuses
Avoid “would a, could a, shoulder.”1 Never give up.
1 I “would have” been successful, if I “could have” had all the privileges of the other guy, and a fair society “should have” done more for me. So I will not work my way through this situation because my situation is not my fault.
Try to arrange your affairs with some margin for error. And rejoice in what life gives you. You only have one journey through this life, and it would be a great shame to waste it on wondering what would have happened if you had just worked harder, or been a better student, or taller, or whatever.
Dolly Lo is an example of a person who had abundant natural talents, but someone who also had to work her way through quite a few hard situations. She did not enjoy a life of uninterrupted successes. She, like the rest of us, had ups and downs, During the “downs” In tough situations, including her last illness, she never gave up. She never settled in to staring at her navel. She asked God why she had to deal with such adversity. But she asked that question earnestly and without self-pity. In the end, she received an answer that filled her with life rather than pointless and wasteful bitterness. It is clearly easier if you have a big portion of talent, but each of us has a choice every day. We can feel sorry for ourselves or we can try to deal with the specific pieces that might be manageable.
Remember that Your Practice of Law Fits into a Bigger Picture
Beginning in 1978, Dolly and I discussed many things about the career she was just beginning. An important part of those discussions included the role of lawyers in modern developed and developing countries, including, in particular, Taiwan.
By summer 1978, she had finished her first year at Harvard Law school after graduating from Wellesley College. She was curious about what lawyers in big international firms like Baker & McKenzie actually do, day in day out. She wondered how what they do affected the society in its interaction with big American and European companies. What was the role of the “rule of law” that seemed to be talked about so important to successful Western economies? How should that idea be adjusted for use in Taiwan.
We continued hat discussion for the rest of her life. We were not philosopher kings debating the different possible forms of government while sitting in Plato's cave. We were instead two people working out responses we might each make to recurring situations in a big law firm dealing with substantial commercial issues that were important to the particular clients but also to the society in which we made our home. We looked quite different, male-female, Asian-Caucasian, but we had surprisingly common perceptions.
Dolly was of course interested in her own success as a lawyer, but she was also keenly interested in helping to reinforce the development of Taiwan as a viable and vigorous society. She may have found talking with me to help to test her perceptions about her role as a western-educated lawyer practicing in China. Taiwan could continue to maintain itself only if it were to become important to the economic wellbeing of other countries. That in turn required a stable business environment. She had no interest in developing a colonial economy operated by foreign overseers for foreigners. Foreign direct investment of money and ideas were essential to Taiwan’s long-term future, but that was just the route, not the destination.
In order to progress past the production of agricultural exports (bananas, pineapples, mushrooms, and asparagus) Taiwan would have to harness its only real natural resource: a talented and hard-working population with many underemployed young people. In order for those talented young people to stay in Taiwan to develop a prosperous and secure society, the economic environment would have to provide them opportunity at least equal to other available places.
In order to provide an environment in which talented young people would see a reasonable future for them, for their families, and for their future generations, the rules of the road had to be fairly clear. There had to be a likelihood of reward for hard work over a long period of time. There had to be some guardrails on how people deal with each other over a relatively long period of time. Government by law rather than by relying only on the classical Confucian relationships.
After the summer internship at Baker McKenzie Taipei, she returned to finish her final two years at Harvard Law school. On graduation she went to work for a good Boston firm in order to obtain useful practical experience. I helped her select which firm would likely provide the kind of work experience that would be useful upon her certain return to Taiwan. After returning she would join in the building and maintaining of a sound modern society with working rules that would provide the framework for a future Taiwan miracle.
In Dolly’s career, albeit prematurely cut short, she made a number of contributions to the rule of law in Taiwan. The most important contribution was to try to recruit and train the next generation who would continue and improve the work. The building of a society in which there is a fair playing field with known rules of the road in which people can live and work in a reasonably secure environment and in which they can be rewarded for hard work.
The system of course is not perfect but it is much better than a society in which your future is subject to the whims of a ruling class that is confident that it knows what is best and does not need to share knowledge of the rules.
Taiwan Semiconductor is an example of Taiwan's present critical importance to the world. It was created and built by talented and very hard-working engineers; Lawyers did not build TMSC. But the engineers could build TSMC in Taiwan because the rule of law provided them a framework for a society in which they and their families could live and work.
The Adversary Process is Not Personal Warfare
Good ideas vs Personal Glory
People tend to love their own ideas. In complex negotiation. I have found it occasionally useful, when the opportunity arises, to let my counterpart discover an idea that has already occurred to me as a way to resolve competing interests. If I were to advocate the solution the adversary in the negotiation might reject it without thinking through whether it was really useful for his side or not.
If you can help the other guy on his own come up with the bright idea you think you have had, it has a much better chance of succeeding. If you can keep the focus on the facts that favor your client instead of on you, the client will usually be better served. As an example, as a very young I recall attending the closing arguments in an important trial. A workman had suffered terrible injuries falling from high in a construction site in Chicago. The core issue was the extent to which the workman’s own behavior had been reckless enough to have been the major cause of his injuries. The rule at the time was that no one could tell the jury that an insurance company would pay any awards against the employer. The reason was that juries assumed that insurance money really did not cost anyone anything, even though in fact insurance simply takes money from lucky and careful people and transfers it to unfortunate or less careful people.
The lawyer for the defense wore a very expensive suit. His haircut was perfect. He used complicated words, demonstrating his command of the language. He walked about in front of the jury as a very successful lawyer. The lawyer for the injured workman wore an inexpensive, poorly fitting suit. He was unimpressive. He stood ear the jury and spoke very softly, so the juries had to listen carefully just to hear him.
The workman was awarded extraordinarily high damages, even though he was clearly not as careful as he could have been. The expensive clothing and image of a high-priced lawyer conveyed without words that someone had a lot of money (probably an insurance company) in order to afford the big shot lawyer. The workman’s lawyer was very forgettable. Cheap suit. No complicated words. Just the story about a poor man who was very injured and would need a lot of care for the rest of his life.
My takeaway was that sometimes the best lawyer is an invisible lawyer. The defense lawyer, by wearing the indicia of wealth and talking like an expensive lawyer communicated that there was plenty of money somewhere. He managed to overcome the rule, for his own protection, against informing the jury that there was insurance money available.
I never practiced personal injury law, but I learned a really important lesson at that trial. The moral of the story is. Be very careful about confusing your interest and the client's interest. Your client may be best served by a lawyer who does not require public admiration Showing off how smart you are can shift the focus from the facts to the lawyer. That is usually not good for the client.
Try to Avoid Painting Yourself or Your Opponent into a Corner with No Exit
It is sometimes tempting to win more than the best interests of your client require. In order to reach a settlement of a controversy or contract negotiation, it is more often than not the case that each side must give up something. In the heat of the controversy, the lawyers can sometimes lose sight of the client’s interest and focus on demonstrating how brilliant they are.
Sometimes lawyers see a zero-sum game when there might actually be a compromise that will better serve the client’s interest than might total victory achieved after a prolonged struggle. To avoid deadlock, try to look for opportunities for your opponent to concede a point without being embarrassed. The most obvious example is the case of a contradiction your opponent makes after an earlier position. Rather than forcing him to admit that he was conceding your superior prior argument, treat the new, contradictory, statement as in fact new and a really good idea. If you can let everyone think it was your opponent’s idea, so much the better. People tend to love their own ideas.
In order to leave room for such good “new” ideas, it is helpful if you can steer your opponent away from making absolute statements about the facts or the law in support of his client’s position. If he creates too tight a corner, wit no exit without an embarrassing concession, your job will be harder in the long run.
Try to avoid claiming that you are the smartest person in the room if agreeing to your client’s position means that your opponent needs to concede that you are in fact the smartest person in the room. The client did not engage you to figure out who might be the smartest person in some room.
Never believe your own publicity.
A common feeling among talented elitist people is that they think too highly of themselves. Worse, they want other people to acknowledge how terrific they really are. That may be human nature but it is a danger for lawyers practicing law. You may forget the point of it all, while basking in the glory (the vanity) of your reputation.
In my area of concentration for the last 30 years, international corporate taxation, I have frequently encountered a similar failure to recognize that the problem to be solved is the problem, not the reputation of the particular problem solver who has been engaged to deal with the client’s problem. In moments of debate, an argument that is sure to lose is one that begins with a recital by the lawyer of the standing of his firm and his standing in the firm. A reputation is fine for purposes of attracting the attention of prospective clients, but it should never be confused with the solution. “Because I said so” is never persuasive.
Once I was in midcareer and I had occasion to deal with a very prominent senior lawyer (“John”) from a very prominent law firm on an issue of the proper tax treatment of very complicated new financial instrument. I asked the lawyer to explain some of the reasoning behind his conclusion in a transaction that would involve about 10 or 15 logical steps of reasoning. He responded by explaining that he had been in Washington DC during the prior week, that he had then met with the Assistant Secretary of the Treasury for Tax Policy (“Fred”) at a social reception, and that he had described the transaction about which we were just in negotiation. He then told all of us on the call that “Fred” knew what kind of a firm he was with, and knew what kind of a lawyer he was, and that Fred had not voiced any objection. This statement was intended to put me in my place: Fred was important enough to know John and John’s firm, that Fred was important enough to be invited to a reception with a high-ranking member of the government, and important enough to get the attention of that high ranking official to discuss this new financial instrument. I was a little unclear what to do next but I finally asked him, “Did you have a second reason for your confidence?” Following that curious conversation, it became necessary to abandon the transaction because the actual legal reasons, the “second reason: I asked about, were insufficient. John had confused his reputation for thinking with the need to actually think through the problem.
About 3 weeks later, the Treasury Department issued a notice that the government would contest Fred’s position. Fred’s laziness in relying on his own publicity cost him and his firm unnecessary injury to a reputation gained after decades of hard work.
The problem was that he apparently believed his own publicity. The mere fact that big deal John was associated with the transaction should have bene enough to carry it over the finish line. That sort of thinking is a dangerous self-indulgence. Your reputation may help you persuade other people, but rarely will it do so at the expense of sound reasoning dealing with the real facts and the applicable law.
In other words, don't fool yourself. You still need to get up and put your pants on one leg at a time. You cannot defy the laws of gravity and jump in the air and put both on at the same time. Other people may ascribe to you special skills, qualities, judgment. That's fine if it helps in a close case never believe it. Never kid yourself 2.
2 I tried to remember that many years later when I accepted an appointment to a position similar to Fred’s in the Treasury Department. It is always tempting to believe your own publicity, even when you recognize the weakness in others.
Try to understand the point of complicated legislation or regulation.
As an international tax lawyer. It has been my function often to interpret long complicated provisions affecting the allocation of large amounts of capital or intellectual property. Often there is new legislation drafted by people who do not have great familiarity with financial transactions. Regulations may be drafted by tax officials who themselves do not have extensive experience with the nature of the transactions they are regulating. We human beings are fallible.
In trying to understand and apply complicated and frequently unclear laws and regulations, it is important to start with trying to figure the problem someone is trying to solve. In the United States, at least, it is possible to review the history of the legislation by studying various committee reports published by the concerned committees of the Congress. It is also often possible to determine what the problem was that the tax administration thought it was trying to solve.
When I began my career, I had had no involvement with US taxation of international trade and investment. I soon discovered that international trade and investment cannot be understood without considering the effect of taxation because there are many different countries that may touch a transaction or investment. Each country will wish to assert taxing jurisdiction over some piece of the supply chain.
When I began to work in this area my mentor (Bill Gibbons of the square corners) gave me a book to read. He said “Dilworth you will never amount to anything if you do not understand subpart F." The book he gave me was a book he had written about 10 years earlier. The Congress had enacted subpart F 5 years after he published his book.
The book laid out a number of ways to organize foreign trade and investment by US multinational companies. Some of the options were “problems” in the final opinion of Congress, after much study and many hearings. My mentor understood that I would not understand the legislative solution, “subpart F,” unless I first understood what the problem was that the Congress thought it was solving. At the time, subpart F was considered the most complicated part of the tax code ever enacted. There was no way to understand it simply by memorizing the words.
It is therefore essential to start with a real understanding of the problem before trying to understand the statutory language or the regulatory language that may apply to your client. Try to figure out what exactly is the problem that the Congress or the Parliament or the European Commission or the OECD thinks it is dealing with. The perceived problem may not seem to be a problem to you, but, if the government thinks it is a problem, you have to deal with it as a problem.
In other words, you cannot understand the city of Taipei by memorizing the phone numbers of all the residents.
Too often legal education consists of memorizing rules. To some extent that memorization is divorced from the point of the rules, the education is insufficient. At that point, it becomes the duty of the practicing lawyers to help the clients and the broader society make the complicated modern legal system work.
This letter is already too long. Perhaps any of you who finds it worth reading might finish it with your own observations about how your generation and the next generation can best help your society live in a society ruled by law and not by men who take care of only their friends.
Dolly gave it her best efforts. So should we all.
With kind regards
Bob
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