On lawyers: “If it walks like a duck, quacks like a duck, looks like a duck, it must be a duck”

Duck LawA lawyer, according to Black’s Law Dictionary, is “a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law.”[1] …... Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who retain (i.e., hire) lawyers to perform legal services.

One of the weirdest aspects of my dealings in business, the university, and my conflict with family members, is the insertion of lawyers who somehow assert they are not ducks.

These folks come into a proceeding and do lawyer things … they are paid or rewarded by one party (family, employer, or their own interests),  write contracts (sometimes called by other names) for others to sign, explain the law to lay people, threaten various consequences … including criminal and civil consequences.  Then, like a character in a cartoon, if others do not want to do what the duck wants,  if asked, they claim they are not lawyers.

Why do they do this?  Why not take off the person suit and act like a duck?

As I understand the law, there are three four reasons:

1. As long as the lawyer does not admit to being a lawyer, she or he can claim not to be subject to the ethical rules of the bar. Unlike medicine, practicing law WITHOUT a license, is apparently a good thing for the duck.

2. The law may actually not allow the client to be represented by his or her choice of a lawyer.  For example, in Washington State ONLY the Attorney General can legally represent the University.  The 100 or more folks walking and quacking like lawyers, despite their titles and JD degrees, claim not to be acting as lawyers.  A side benefit of this is that these ducks are immune to prosecution under the ethical rules of the Washington State Bar Association.

3. Covert ducks are able to depose adversaries, e.g by demanding acquiescence to documents that control your job or interrogating you by email, without subjecting themselves to rules regulating interrogation or perjury.

4. The faux duck may be protecting her or his employer by putting you in a position of lying. This is especially true if you respond to a question in writing. For whatever reason, the Miranda Rule does not apply to lawyers who are not wearing their wigs and caps. MY ADVICE: If it quacks like a duck, treat it like a duck:  If the duck asks, “do you still beat your wife?” respond “why do you ask?”






2 Comments Add Yours ↓

  1. Roger Rabbit #

    Quacking ducks get no immunity from the bar’s ethical rules in Washington. You can be disbarred for shoplifting even if you claim this behavior was outside your role as a lawyer. Washington lawyers are held to the same ethical standards in their personal lives as they are in their professional lives. Whether, or to what extent, that’s actually enforced is a different question.

    Now let’s consider the phenomenon of licensed attorneys employed as staff members of a public agency such as the University. Under state law, only the Attorney General can represent state agencies in legal proceedings (i.e. in courts). Hence, when an Attorney General recently refused to represent the State Lands Commissioner in an appeal of an adverse trial court ruling, the Lands Commissioner sue the Attorney General to compel him to do so, and in this dispute between two elected officials, the State Supreme Court sided with the Lands Commissioner.

    The University is certainly not the only public agency that employs lawyers in staff positions. These lawyers lack the representation authority of the Attorney General, and those agencies still must be represented by the Attorney General in litigation. But a staff member can negotiate contracts, bind the agency by signing contracts, provide advice on legal matters, conduct investigations, and represent the agency in quasi-judicial administrative proceedings and/or perform administrative adjudications. Non-lawyer staff who perform these functions for a public agency are not subject to the bar’s ethical code, but licensed attorneys who occupy these job positions certainly are.

    Defining the role of an attorney in a staff position within a public agency can be a bit tricky. Probably the best way to keep this person’s role and authority clear in your mind is to think of him or her not as an attorney representing an agency but as an agency employee with specialized legal knowledge acting in the same role and capacity as agency employees generally. That is, they can do things for the employer such as supervise, investigate, make bureaucratic decisions, etc., but they’re doing so as agents of the employer, not as its legal representative(s).

    To illustrate, if I work for a public agency, and I receive an e-mail from another employee of the agency (who happens to be a licensed attorney) directing me to do something or asking me for certain information, how I respond to the e-mail (and what consequences flow from my response) depend on our employee-to-employee relationship within the organization. For example, if that person is my direct supervisor, and I refuse to do what the e-mail requests, the employer may regard that as an act of insubordination. But if I also happen to be a licensed lawyer, it probably is not a breach of any bar ethical rule.

    Getting back to your issue, if you are a tenured faculty member of a public university, and a university employee who happens to be a licensed lawyer demands documents or tried to interrogate you, the consequences (if any) of how you react or respond to that will be governed by the terms of your employment relationship with the university. It may well be that under your employment contract, a union contract, or a faculty code you are not required to cooperate with that employee’s requests or demands. Whether he or she is a licensed attorney (or not) really has no bearing on it. This is really all about what authority the employer agency has delegated to that employee and the employer’s willingness to enforce that authority.

  2. theaveeditor #

    With all due respect to the resident rabbit, Roger’s long post cites NO ethical limitations on an attorney who can claim not to be formally representing a client. The potentials for abuse are frightening, especially at the university.

    I think the key words in Roger’s comments are ” Probably the best way to keep this person’s role and authority clear in your mind is to think of him or her not as an attorney representing an agency but as an agency employee with specialized legal knowledge acting in the same role and capacity as agency employees generally. That is, they can do things for the employer such as supervise, investigate, make bureaucratic decisions, etc., but they’re doing so as agents of the employer, not as its legal representative(s).”

    I think Roger underestimates what an attorney,I will call her Dotty Duck, can get away with when her victims are unaware of the legal niceties. Most citizens assume that lawyers speak with the authority of the law unless it is very clear that the lawyer is representing someone else. If I get a letter from MasterCard signed Dotty Duck, JD I understand she is a Duck working for MasterCard. The same thing, unfortunately is not true when the letter comes from Dotty Duck, JD, UW administrator,
    As a UW administrator, the presumption of many is that she is acting according to academic standards of truth telling. Many faculty have been burned by assuming Dotty is acting in their interests!

    This is further complicated by the fuzzy wall between Dotty and the office of the AG. The policy of the Attorney General (since Gregoire) is that the office represents the University’s interests over those of employees or citizens.

      Dotty and her colleagues routinely inform faculty that if we do not comply, they wall call in the AG.

    Just as any other adversarial attorney, Dotty never informs her victims faculty members of her or his Miranda Rights, including the right to remain silent when questioned and that anything you say or do can and will be used against you in a court of law by the Attorney Genral acting at her request.
    Similarly, Dotty doe not inform her victims her targets that they have the right to have an attorney present during questioning. Even if she does mention this, she ads the formidable threat that she has the resources of the state and that, regardless of your finances, no attorney, will be appointed for you until and unless you are criminally charged by the University.

    Compared with a cop at a traffic stop Attorney Duck has vast powers. Finally, Dotty actually has powers that other attorneys do not have because she represents not just the law but you employer. As recent examples show, faculty can and will be suspended or even fired at her judgment.

    I would amend Roger’s comments in two ways:

    1. Remember that Dotty is a lawyer and is representing the University’s interests rather than your own.

    Any opinions Dotty gives you are tainted by the fact of who she represents. Moreover, unlike an attorney bound by the Bar, Dotty will not identify her client so you may not know she is representing your chair or even some academic competitor. They, not you have the right to remain silent.

    2. Dotty consider herself as having the Attorney General as THEIR agent, not yours.

    3. While I do not see any limits from the Bar, Dotty does have one limit … her communications are not protected by attorney client privilege. You can use the Freedom on Information Act, an easy email request at the UW, to obtain all of Dotty’s relevant correspondence. She will not like you for this.

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