In addition to serving as a liaison to the ABA Commission on Women in the Profession, Carol Langford teaches at the University of San Francisco School of Law and the University of California Berkeley, Boalt Hall School of Law. She co-authored “Legal Ethics in the Practice of Law,” “Legal Ethics: Rules, Statutes and Comparisons” and “The Moral Compass of the American Lawyer: Truth, Justice, Power and Greed.” She talks here with Natasha Galvez about her career and about her work in ethics.
What inspired you to go to law school?
I grew up in Montgomery, Alabama, and I saw a lot of racism. I remember stopping at a gas station once, while driving to Florida with my family, to use the bathroom. There was a sign on the bathroom that said “out of service,” so I went to the owner and asked if there was another bathroom that I could use, and he replied that that sign was just there so that black people wouldn’t use it.
I saw a lot of this growing up, and I saw it as very unjust. I thought that maybe as a lawyer I could do something about it. I had never seen a woman lawyer before, so it was hard to have confidence. My mother told me I’d be a “poor old maid” if I went to law school. I told her I would not be poor.
In high school, I reached out to Morris Dees, who started the Southern Poverty Law Center, which handles a lot of cases about hate crimes and racism. After speaking with him, he came to my high school class and spoke to us about his work. He was so interesting and vibrant, and so passionate about justice, and I thought to myself, “I would like that to be my life.” That’s what inspired me.
You practiced big law for some time after graduating from law school—how did you end up in big law, and what practice areas did you specialize in?
I initially went into big law because in those days, 29 years ago, we were not as thoughtful about our careers. We’re different from your generation; you are a lot more thoughtful about what kind of practice will make you happy and how you want to live your life. Back then, it was all about getting into the very best firm you can get into and making as much money as you can. At the time I was in school, Pillsbury Winthrop was the top law firm, and I was one of three from my school who was offered a job there, so I headed for Pillsbury. I had also interviewed with the Miami Public Defender’s office, but I could tell that they weren’t interested. I just didn’t feel a connection.
At the time, I also had no money-not even to pay for the bar exam. Then Pillsbury made me an offer and paid for me to take the bar, and I thought I would work for them for a few years, pay off my student loans, and then I would do something that I really wanted to do.
Pillsbury told me I was going to do antitrust law, and I thought, “Oh God, I don’t know antitrust,” I didn’t even know what antitrust was. Antitrust is numbers – it’s based on economics and statistics, and whether something is a monopoly-things like that, but it was actually pretty interesting, and I just knew when I did it that I liked it.
Pillsbury was good to me, and I worked with a lot of good people. I worked with Robert P. Taylor, one of the foremost antitrust lawyers in the country, and he would stand up with me for hours, at his stand-up desk, going through my memos and articles to teach me how to write. People don’t do that nowadays, so I was lucky.
Then, after working at Pillsbury, O’Melveny and Meyers made me an offer for even more money. I went to O’Melveny, thinking I would get more trial experience, plus O’Melveny is a big firm with very smart lawyers and very good people.
I found myself making a lot of money, but I also found myself working every single solitary day. One time I worked every day for three months solid, and I thought to myself, “This is no way to live.” I found myself struggling because at the time, I wanted to have a baby. My first baby had died, and the doctor said I was never going to have a baby if I continued to do what I was doing, because I was wearing my body down.
So from there, I went to Carroll Burdick & McDonough, which is a smaller, older San Francisco firm. I worked with a lot of great people, and I made partner there, and it was there that I developed my ethics practice. So, it ended up being a circuitous path to a very public-service oriented career in ethics, which is what I do now.
At what point in your career did you become interested in ethics, and how did you develop your ethics practice?
I was working at O’Melveny and Meyers, and I opened up the Daily Journal one day, and it said, “Serve on the Committee on Professional Responsibility and Conduct,” and I thought to myself, “that might be really interesting.” What I didn’t know is that sometimes people try four or five times to get on this Committee and never get on. I never would have bothered to apply because I was young, but I didn’t know this, so I threw my hat in the ring, and then I interviewed at the State Bar.
During my interview, they asked me if I would be okay working with people older than me, because at the time I was about 30. They asked whether I would be okay working with “old crusties like them,” and I said, “Of course! I hope to be an old crusty myself someday, because you’re dead if you’re not an old crusty.” They obviously liked that answer, because I got on the committee and that was it. That just started my career.
While I was on the committee, Richard Zitrin said they needed someone to teach ethics at USF and he asked me to come down to USF, where he would show me how to teach. I thought, “I can’t teach. I’ve never taught before,” but then I did it, and I found that I was good at teaching and I liked it.
Then Richard and I wrote a book on ethics, and after that I became the chair of the ethics committee. This happened in 1992, and that was just my year. Once I chaired that committee and wrote the textbook, the rules book and “The Moral Compass of the American Lawyer,” that was it. My career was made, and people began calling me, and I thought, “I could have this as a practice.” It really was serendipitous. You don’t always know where you’re going to end up in law, and I never thought I would do ethics. It was at Carroll Burdick, while working in construction and business law and general litigation, that I began developing an ethics practice by bringing in clients and taking on ethics cases.
Can you describe the scope of your current practice? What is your typical case?
I do a lot of different cases. I handle disciplinary cases, admissions matters, discipline trials. I handle many cases of students with moral character issues. People also call me for general advice, both lawyers and non-lawyers. Oftentimes, non-lawyers will call me for advice on how to deal with a problem they have experienced with their lawyer. I do declarations, expert witnessing, and I’ve handled legal malpractice cases both on the plaintiff and defense side. Legal malpractice cases, other than serving as an expert, can be very tough, so I prefer staying within my niche, or serving only as an expert witness in those types of cases.
Was there ever a time in your career in private practice where you encountered some ethical dilemma yourself that sparked your interest in the subject?
I was actually lucky because the people I worked for were so ethical. Pillsbury, O’Melveny and Carroll Burdick are all solid firms. I’ve heard from a lot of people, including people I represent, about working with unethical lawyers. For example, a young lawyer is worried because their boss has been mucking around with the trust account and the young lawyer’s name is on it. I never experienced anything like that.
I do remember one time, at Carroll Burdick, there was a document and the client told me they didn’t want me to turn it over. I was a young lawyer and I said, “Well, let me see what I can do about it,” because I didn’t know whether I could do what he wanted. It seemed to me that I would have to turn it over but I wasn’t sure, and of course, you want to please the client. So I went to my boss, Jack Friedman, who was an excellent lawyer, and he said I absolutely had to turn it over because it was responsive. The lesson I learned from this was that if something is responsive, you have to be firm with your client about your obligation to turn it over. It’s not about pleasing the client, but about cooperating with the court and opposing counsel and making sure they have all the documents. That was really very helpful.
Another time, at Pillsbury, I found a document during a major merger transaction, and the document said something bad about the client’s product, and I was worried that the client would not want me to turn this over. So, again, I went to my boss, Bob Taylor, as I always did at that time, because I was young and new to the practice of law. Bob said to me, “Your case is your case-you have to turn the document over. Whatever your case is, that’s the case you’ve been given to work with, and if that means your case has a bad document, then you probably want to settle, but you still have to turn over that document.”
Bob also reminded me that even if you don’t turn over the bad document, there will be another document down the road that refers to the bad document, and the court will be angry that this wasn’t turned over in the first place. This is something you have to be direct and firm with the client about. I was fortunate to have good guidance. That’s exactly what you need starting out as a young lawyer. You’ll want to have smart people who are ethical to guide you. It is far better to do the right thing, turn over the bad document, and stay in the clear in your own actions, and I was very lucky to have people who told me this.
In my practice now, ethical dilemmas are fairly rare. Something that sometimes comes up is that I’ll have to probe a client. For instance, they’re telling me that they didn’t mismanage a trust account, but from what I can see in the State Bar’s letter, there appears to be money that is unaccounted for. I ask them to explain that to me and to give me an answer for that. I have to probe sometimes, because people worry whether our conversation is privileged, and after I assure them that it is, then they will admit to having messed up. I also remind them that the bar is going to find out where they messed up in a trust account, for example, because they can access all the records. I tell them, “You might as well just admit to what happened and we’ll deal with it, whether you borrowed money and weren’t able to pay it back, etc.”
I also see this in admissions cases, where students will fail to tell me something and it comes up later, and I always tell them “I wish you had told me before,” because we are still left dealing with it at the end of the day. I always tell people in the beginning that they need to tell me everything, and people are sometimes reluctant to tell lawyers everything, because they get embarrassed. They know they’ve done something wrong, and sometimes they’ve done really bad stuff, and there are convictions on their records. They don’t want to say, for example, that they previously got in trouble for pandering, counterfeiting or drug activity, when they are currently at some great law school. Oftentimes people just don’t want to look back and remember those things.
It’s crucial for me to probe my clients, because when it comes to a concept like moral character, it’s not like criminal law where criminal defense lawyers will ask a client, “Well, what’s your story?” For me, it’s not about what their story is, but finding out exactly what happened, because the bar is going to find out, and moral character means that you accept responsibility for what you do. So they really have to tell me everything, which makes my practice a little different than others, where sometimes the less you know as a lawyer, the better.
Is there an added element of difficulty in representing clients who are attorneys themselves? Is there ever a power struggle, where they will try to manage the case as they see fit, rather than allowing you to take the lead?
Actually, they do try to do this sometimes, but I know what I’m doing and I’m confident in my ability. I think women particularly have to show their confidence, because of the bias and discrimination in the practice. So I tell my clients, “Look, you’re telling me that you want to respond in this way, and I am telling you that that is a bad way to respond, and here’s why…” and I tell them exactly what they need to do. Sometimes they bristle at first, but I remind them that they are paying me a lot of money because they want my advice, so if they aren’t going to take my advice, then they can tell me right now and go to somebody else. If they’re paying me to put them in the best possible position, I cannot do it unless they follow my advice.
After I tell them this, they generally follow my advice or if they really don’t want to do what I’m telling them to do, such as going to a Lawyer’s Assistance Program, I’ll ask them whether they really want to get into the bar. I remind them that I have a lot of experience and I’ve handled hundreds of cases, and if they don’t listen to me, they’re not going to get in, and when that happens, that will be their problem to deal with on their own, after they’ve paid me a lot of money. When you tell them that this is the bottom line they listen, and then they will almost always do what they need to do. I’ve never had anyone fire me for this. In fact, they appreciate it when you tell them this.
Remember, I’m getting people who are distressed – they are concerned, they have anxiety, and they are really emotional and afraid of not getting into the bar or of being disciplined by the bar, so there’s a lot of high anxiety among very smart people. On top of that, sometimes my clients are substance abusers or they have mental health issues like depression or bipolar disorder, so they are already under stress. Some of what I have to do is holistically deal with the situation. I can’t just be a lawyer. I sometimes have to talk to them a little like a therapist, and say, “What do you think is the root of your issue?” Then they start talking about their families and their lives, and then I say, “Well, you probably will want to go to therapy for that, and that will look good to the bar”, and this helps them.
I like to try to make sure that when my clients leave my office for good that they are in the best mental place they can be by being in therapy, or the Lawyer’s Assistance Program. I don’t want to just get them out of a bar proceeding, or get them admitted, because then they’ll be back. They’ll get in trouble again because they haven’t dealt with the root cause. What’s funny is that they’ll often say, and sometimes in front of the Admissions Committee, that they are so glad that I told them to go to the Lawyer’s Assistance Program, and they’re not faking it – I didn’t tell them to say this. In fact, I am often stunned that they have that insight and that they’ve learned a lot. By the nature of my practice, it has to be holistic in this way to truly help the client.
From your experience representing newer attorneys, what kind of behavior have you observed that most frequently lands them in trouble?
What I see the most is that new attorneys don’t always know how to say no to manipulative clients – they’ll get talked into filing a baseless pleading because the client pushed them. They don’t know how to manage their caseload and they haven’t yet learned that if you take on too many cases, you cannot properly service all those clients. They struggle with competence because they are thrown into responsibility without enough training and guidance. These are particular problems for your generation because you’re more debt-burdened, so you get new attorneys with a significant amount of student loans, and they are trying to take as many cases as they can to pay their rent, and many of them are on their own with no one to teach them.
These are good people, but they haven’t been as lucky as me to have firms like Pillsbury and O’Melveny to teach them about their work structure and how much they can handle. I was lucky to be taught all that, and I think young lawyers nowadays go to a firm and are just expected to get in there and do the work, because they don’t have time to teach you all that stuff. Some of these lawyers get thrown into a trial after only being out of school for one year, and that’s tough on a young lawyer. You folks are very smart, so the firms figure if they throw you into it you’ll figure it out, and you do, but that is what sometimes causes problems for young lawyers.
Also, new attorneys sometimes end up working for bosses who might have a mental health issues themselves, and these young attorneys end up running the office, trying to juggle all the balls. This causes a lot of problems. Now the state bar is trying to invoke more MCLE in the actual practice of law for young lawyers in their first year, because of this, and I think that’s a good idea. Your generation is much more entrepreneurial and brave. You are much more willing to hang out your shingles, and you could benefit from some additional requirements like this during your first year of practice. I think the state bar is on the right track with this.
For law students who will soon go into practice, what are your top 5 suggestions to avoid unintentional ethical violations?
1. Manage your money well, both professionally and in your personal life.
This includes managing your office cash flow and making sure you’re paid by your clients. You’ve got to “get your money right,” as the rappers say. Young lawyers don’t always have the confidence to say, “You are writing me a check, and it has to be a cashier’s check or money order.” If you handle money with clients in the right way, then you don’t end up in disputes with them over money. Clients can sometimes be manipulative with money- they say, “Let me have a few more weeks to pay” and then they don’t want to pay and then you’re stuck. Also, keep in mind that you’re going to have office and case expenses.
You’ve also got to manage your personal cash flow, like not spending a lot. Learn to live beneath your means. Money will come to you as a young lawyer, but your first obligations will be the IRS, office rent, your employees, your student loans and bills. You also need to think about your retirement savings, and your security savings for times when, if you don’t have money coming in for six months, you have some back-up money. Then you can spend money. Only when you’ve met all those obligations should you go ahead and buy the BMW; but most people do it just the opposite.
2. Prepare yourself to handle difficult people.
You have to watch out for manipulative clients who want to control the litigation or the transaction, and they will tell you how to do it, when you know better. You have to learn how to handle tough-to-handle people. I suggest getting books for this. I checked out a book from the library called “How to Deal With a Jerk.” Most of my clients aren’t that way, but occasionally you get one that is, and this book taught me lessons in how to talk to and manage people who are difficult. I also bought books on things like depression, bipolar disorder, alcoholism, addiction, and the symptoms and how these diseases affect people, so that I could learn to deal with clients who have these issues by understanding what they are dealing with. Learn how to speak to different kinds of people. It’s helpful to read up on this.
3. Care for yourself first.
Just as they tell you in an airplane before takeoff, that you have to first put the oxygen mask on yourself and then help others, you have to learn how to take care of yourself first. Lawyers want to help and take care of others-that’s why they get into the profession, but a lot of them, and even law students, don’t take care of themselves well enough. Lawyers are the worst at taking care of themselves, and this becomes a problem, especially as you age. You have to eat well; clean, healthy foods, don’t drink too much alcohol, don’t do anything in excess-all things in moderation. Lawyers also need to exercise regularly and pay attention to their inner life, whether it means going to church, synagogue or just practicing mindfulness in their everyday life. Don’t take care of the boyfriend, husband, or family first. Take care of yourself first, and make sure you are feeling balanced, and then you will be a better lawyer, a better wife, daughter, friend, etc.
Many lawyers are working non-stop until they hit forty, and they have a spouse, a mortgage, kids, and they’re saving for college and retirement, and suddenly there’s more stress and pressure. This is the time when they’re starting to get promoted in their law firm, but they’re not doing a thing to take care of themselves, and there is a price to that.
4. Maintain open communication in your work.
I think open communication with your clients and your boss is important, as in building a relationship. What you hide festers, so the best thing to do is to shine a light on what you fear telling your clients or your boss. Most things are fixable and a more seasoned attorney can help to fix it.
With bosses, it’s important to own up to your mistakes and be honest about your ability to handle your workload. If you make a mistake, the best thing to do is to go to your boss and tell them you made a mistake. Even if you make a mistake, you can always offer an alternative. Don’t just go to the boss and say, “I messed up, we need to fix it.” Instead, say, “I messed up, here’s what I’ve researched as alternatives. I’m sorry and I will do anything possible to make this right.”
Whatever you can think of, try to correct your mistake, and give the boss alternative solutions. The same is true of clients. For example, say you don’t file a pleading and the statute has run-at that point you have to get the client involved. Open communication is important because clients are people and people don’t like it when you hide things from them.
It’s also important to communicate about your workload. It’s okay to say to your boss, “Mr. Jones, you’re giving me too much. I know you think I’m capable of writing four motions in a week but I’m really not, and I’m also working for Mr. Smith and he’s giving me assignments and I cant handle all of it, so you and Mr. Smith need to get together and figure out what I have to get done this week.” This is a very good way to solve a work problem where you’re overworked. If you say nothing, you’ll get too much work and you’ll mess up – you won’t do anything well. It’s better to have fewer projects and do them well, and the same with cases-fewer cases and do them well.
5. Continue to learn about new practice areas.
A good thing to do, which most people don’t take advantage of, is to take MCLE from time to time in an area that you don’t practice. Sometimes when I speak for family law lawyers, I’ll get credit for just sitting in on an MCLE on writing a marital settlement agreement, and I learn things. For example, I learned about tax implications, something I never thought of in a divorce. I’ve also sat in on MCLE’s about how to do a securities trial, and some of the things they teach you about trials generally or expert witnesses are actually helpful in my own practice. Sometimes you might even want to handle a case or two in the area that you learned about because it’s interesting.
In addition to your litigation practice, and teaching ethics courses at UC Berkeley and the University of San Francisco, you are also involved with the State Bar’s Commission for the Revision of the Rules of Professional Conduct. Can you tell me anything about any rules that the State Bar is currently considering changing or implementing, or more generally, if there are any areas that are of particular concern?
I am on the Commission for the Revision of the Rules of Professional Conduct, and I’m helping to draft the new California Rules of Professional Conduct. We just voted out a discrimination rule. This is good news for women and minorities because this was a bad rule. It required you to have a final judgment, not on appeal, and the settlement didn’t count, before the bar would prosecute for discrimination. So essentially they weren’t prosecuting anything, and there is definitely discrimination going on. It’s hard to prove a discrimination suit against a law firm, because they’re smart about hiding it. So we changed our rule so that you don’t have to have a final judgment-that is key. I’m hoping that when we send it out for public comment we don’t get a lot of flack to change it, so that the Commission doesn’t feel pressured to change it, because it’s a meaningful change.
We also changed the discrimination rule to include sexual harassment and made it reflect the law more accurately. Karen Clopton is the Chief Judge of the Public Utilities Commission, and she was strong on this issue. She insisted on having a rule that is enforceable, and she prodded and out-argued everyone on the Commission who disagreed with this rule. To her credit, she got that rule passed, she got the men behind it drafting it with her, and I don’t think anyone else could have done that. She changed this rule and it will have an effect on all women in California.
As the liaison to the Commission on Women in the Profession, I am always interested to learn about issues affecting women in particular – are there ethical dilemmas that seem to come up more frequently for women attorneys or certain violations that women are disciplined for disproportionately?
If you look at criminal defense, and I worked at the Public Defender’s office for a short time, you will find that crimes often can be categorized according to gender. With disciplinary issues in the legal profession, you often see women as secret alcoholics. Men are more open with their alcohol abuse than women, while women try to juggle their lives – their children, husbands and their work-but they’re hiding substance abuse issues. I also see more women than men with kleptomania, and it’s women who don’t need the money and who are very smart and successful. These are not the losers of the profession – these are very bright women.
If we’re talking about women in general, there’s still a lot of bias in our profession, which puts extra pressure on women, and this shows up in the low number of women making partner. A lot of people say the reason for this is that women have children and they decide they don’t want to be lawyers anymore, but this to me is not the answer. Women have to have children- who else can bear children? Men can’t. It seems to me that we have to perpetuate the human race, so there should be better alternatives for women, such as childcare in law firms.
Also, this is controversial, but maybe women with children should have less hours that they have to put in to make partner, the same way we have special admissions. There are certain ethnic groups that are underrepresented in the law, and I always supported special admissions in law school to better reflect the diversity and internationalism of our society. You have to help people and give them a leg up, and this is the same for women making partner, because statistically they are very underrepresented in the partnership ranks even though they make the same grades in law school and have the same abilities as men. I know; I teach and grade anonymously. Only after I submit my grades do I find out who made what grade. There is no difference in the grades men and women make.
Even today, when you get married and have kids, it’s almost expected still that the woman is going to do more of the childcare. Childcare is unaffordable and when it becomes necessary for one parent to stay home and care for the kids, it’s naturally going to be the person bringing in less income. Due to bias in our salaries, this means that it will almost always be the woman who leaves her job and stays home with the kids. So, there has to be some kind of better encouragement from higher up in firms, not just talk from managing partners in firms. Firms are still all about the money, the billable hours, the clients you bring in, but they also need to be a reflection of the diversity of our society, and they also lose a lot of talent when these women leave.
I made partner when under 10% of women and minorities made it, and I worked harder than any other man who had been up for partner at my level. I know how often I was there at work. I taught, I wrote books, I established my own ethics practice. I did stuff that nobody was doing at that time. It was a unique practice and it was hard and I did not get to spend a lot of time with my son in his first three years. Finally, I said, “I’m just not going to have a relationship with my child- I’m going to be one of those lawyers whose own kid doesn’t know her,” and I just would not allow that.
So I stepped away from the big firm life and started my own firm where I could have more flexibility. Flexibility is what women need, because they are just as capable, just as smart as men.