CHAPTER 13

!
As the second-year students returned to school in late August, there were three principal
topics of discussi...
you to some expensive restaurants, all on their dime. They call that a flyback.”
“Will any Chicago law firms be recruiting...
receive a windfall just because I choose to interview with another firm while I'm there.”
Tony shook his head. “That's jus...
on letting my clients down. I play to win—whether it's basketball or law or anything else.”
Jake was warming up to the deb...
ourselves on that journey defines who we are, and that’s far more important than the outcome of
any particular case.”
“I a...
Jake was disturbed, both by the reality of what Rick was describing, as well as the fact
that Rick seemed to be defending ...
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Cd excerpt 2

  1. 1. CHAPTER 13 ! As the second-year students returned to school in late August, there were three principal topics of discussion: what they had done over the summer; what they knew about their new classes and professors; and the upcoming interview season. Commencing in early October, law firms, corporations and government agencies from across the nation would descend upon campus for several weeks of interviews. Second Years would be interviewing for coveted summer clerkship positions, and Third Years would be interviewing for permanent positions that would start following graduation. “Do you guys understand how this works?” Tony asked, as he, Jake and Rick sat in the shady courtyard adjacent to the law school. “I've been talking to some of the Third Years,” Rick replied. “Here's the scoop: There will be hundreds of potential employers coming through here this fall, mostly big law firms. Each one generally spends a day here interviewing whatever students have signed up to meet with them. The interview lasts about half an hour. If they like you, you’ll get a callback within a week or two, which means they invite you to visit the firm at their office for an entire day's worth of interviews. If you pass that test, they'll make you an offer. You can interview with as many firms as you like.” “What if a firm is from out of town?” asked Tony. “I plan on going back to New York after law school.” “I'm sure all the major New York law firms will be here,” Rick replied. “If they like you, they’ll fly you back to New York for more interviews. They'll put you up in a nice hotel and take
  2. 2. you to some expensive restaurants, all on their dime. They call that a flyback.” “Will any Chicago law firms be recruiting here?” asked Jake. “Yep. I saw last year's list. There must've been at least twenty Chicago firms on it. All the top-tier firms will certainly be here.” “Excellent! So I may be able to get a couple of free trips home this fall?” “Absolutely. If you're smart, you might even be able to make a few bucks.” Rick grinned slyly, as if he already had a plan. Tony looked suspicious. “Make money? What are you talking about?” “It's easy. You plan your flybacks so that you visit several firms on the same trip. Then you bill each of them for all your expenses—airfare, hotel, taxis, the works.” Tony and Jake exchanged glances. “Bullshit!” Tony blurted out. “You can't do that!” “You're not serious, are you?” Jake asked. “Of course I'm serious,” said Rick. “Look, each one of these firms would be willing to pick up the entire tab if I were visiting only them. It's part of the process. It's a cost they're willing to bear.” “Yeah, but their intention is to reimburse you for your expenses, so you don't take a financial hit by going to see them,” Jake replied, still unsure whether Rick was simply having fun at their expense. “You're not out of pocket anything once one firm reimburses you. How can you bill another firm for those same expenses? They're not paying you for your time. Clearly, you should be dividing the costs among whatever firms you’re seeing on that trip.” “I disagree,” said Rick. “They’re in recruiting mode. They want me to take the time to travel to Chicago, and they're willing to pay for it. There's no reason any particular firm should
  3. 3. receive a windfall just because I choose to interview with another firm while I'm there.” Tony shook his head. “That's just not right.” “Again, I disagree,” said Rick. “I would avoid making any representation to any one firm that I will be spreading the expenses around. Unless they explicitly limit the terms of their reimbursement—which they don’t normally think to do—there’s a clear understanding on their part that they will be picking up the entire tab. So what’s the harm?” “It’s just not right,” Tony said again. “Besides, what if one of those firms were to find out that you were treating the interview process as a profit-making opportunity? It might hurt your chances of getting hired.” Rick’s face darkened at that thought. “Well, you may have a valid point there,” he acknowledged reluctantly. “Maybe it’s not worth running that risk. But I’ll tell you this— it isn’t as black and white as you seem to think.” Rick looked from one to the other. “You guys are spending way too much time in the ivory tower. You need an education in how the real world works. We’re joining a profession where the most successful practitioners are the ones who are the most aggressive and creative, the guys who aren't afraid to push the envelope.” “Within limits,” Jake corrected him. “There are ethical rules governing our profession, and we need to play within those rules.” “Granted, but those rules are flexible. There are very few situations that are truly black and white. Mostly, we deal with shades of gray, and we deal with arguments. Sometimes an argument can be made that a certain course of conduct is against the ethical rules, but there’s almost always a legitimate counterargument that it’s not. Our overriding obligation as attorneys will be to zealously represent our clients. Our system is built on that foundation, and I don't plan
  4. 4. on letting my clients down. I play to win—whether it's basketball or law or anything else.” Jake was warming up to the debate. “You raise a good example: basketball. Sure, professional basketball players play to win, but there’s a rulebook. If they violate the rules, they get called for a foul or they get ejected. Those are the rules of the game.” “Wrong again, pal,” Rick countered. “It's not so simple. Yes, there is a rulebook, but there are unwritten rules, too. Just watch any professional basketball game and look at what goes on underneath the basket. There’s pushing, shoving, holding—all the time—even though it’s technically against the rules. It's accepted. More than that, it's expected. And the most successful players are the ones who are best at it. The same principle applies to the legal profession. If you want to be successful, you need to understand the unwritten rules, and you need to understand that even the written rules are elastic. You can’t fight your battles with one hand tied behind your back. Your mission is to win. You do what it takes.” “You do what it takes to win, eh?” Tony scoffed. “The ends justify the means? I’m not buying that crap. The only way that theory works is if the end result somehow serves the greater good. What if your client is wrong and undeserving? Your whole theory falls apart.” Rick looked annoyed. “You’re missing my point entirely,” he replied. “The end game is winning—that’s all that matters. It’s not up to us to weigh the moral or social value of the cases we handle. We’re hired to win. That’s the goal, and we need to do what it takes to accomplish that goal.” “You’re missing my point!” Tony shot back. “We spend ninety-nine percent of our time living in the realm of the means. It’s the journey we travel during most of our waking lives, while our arrival at the destination—the ends—is just a fleeting moment. The way we conduct
  5. 5. ourselves on that journey defines who we are, and that’s far more important than the outcome of any particular case.” “I agree with Tony,” said Jake. “Holding ourselves to the right standard of ethics is an end in itself, and that should be what guides us throughout our careers.” Rick looked amused. “I disagree. In this country, we keep score, and the only thing that counts is the end result. That’s how our world will judge us. Like I said, you guys need a good dose of the real world. I got plenty of that this summer, working for my old man's firm. The lawyers there understand that the rules are elastic, and they know how the game is really played.” “Sounds like bullshit to me,” Tony replied. “So, how do lawyers in the real world apply this elasticity? Give me an example.” “Sure, that's easy. Take the whole universe of personal injury law. Do you really think that every client who walks into a lawyer's office is hurt as badly as he says he is? Of course not. But how does an attorney make that assessment? He can't, and it's not his place to do so. So he sends the client to someone better qualified to make that evaluation—a medical expert he happens to know—a doctor to whom he sends a lot of business. The lawyer, if he's got half a brain, would never instruct the doctor as to what his findings should be, but guess what? Time after time, the doctor will issue an expert opinion confirming the patient's complaint.” “That’s because the doctor is a sleazebag with no conscience,” Tony replied. “He knows that if he doesn’t provide the diagnosis the lawyer wants, then the lawyer will stop sending business his way.” “Precisely. But the end result is that the lawyer gets what he needs—support for his client’s claim—without doing anything outside the rules.”
  6. 6. Jake was disturbed, both by the reality of what Rick was describing, as well as the fact that Rick seemed to be defending it, even embracing it. “You're painting a pretty grim picture of our profession.” “Hey, if you look beneath the surface of any well-oiled machine, you’ll find some grimy parts, but those parts are essential to the machine’s operation.” “I don't know about that,” Tony responded glumly. “If there's too much sludge in an engine, it just stops working.” “Well, get your heads out of the clouds, boys. Your summer clerkships will give you a firsthand glimpse of the legal profession in action. Watch and learn. A couple of smart and ambitious guys like you will figure it out in no time. Before long, you’ll be bending the rules with the best of them.”

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