The 150th anniversary of the Civil War (five years ago), Memorial Day (which tracks back to Decoration Day, dedicated to honoring those who died in the Civil War) and the notion that Donald Trump might be our 45th President of the United States of America, brought to mind Abraham Lincoln. Before he went to work for the federal government in 1861, Mr. Lincoln was a very accomplished attorney. Notes for a Law Lecture, dated July 1, 1850, may or may not have been used in a lecture, but they have survived for more than 165 years.
Age aside, the Notes are worthy of attention for attorneys and non-attorneys, for Mr. Lincoln focuses on four major, timeless themes: Diligence; Litigiousness; Fees; and Honesty. He also offers a quick digression on the limited value of the silver tongue.
Mr. Lincoln calls diligence “the leading rule” for lawyers. Arizona attorney discipline reports bear out this opinion, as many modern-day discipline problems relate to a lack of diligence. Mr. Lincoln offers several specific tips: “Leave nothing for to‑morrow which can be done to‑day.” “Never let your correspondence fall behind.” “Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.” In the same vein, I recall the best lesson I learned from a formerly ornery former partner who said “touch the paper once.” Whenever a pile of paper accumulates on my desk, I know I’m slipping and, in those moments, I think about Mr. Lincoln and his most famous general, as my formerly ornery former partner and the general share a surname.
On litigiousness, Mr. Lincoln sounds like a settlement judge:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Mr. Lincoln’s comments about lawyers who stir up litigation are more tart. About these lawyers he observes: “A worse man can scarcely be found than one who does this.” Well, surely, there are worse things than litigating silly matters. Killing and stealing come to mind quickly. You can probably add to that list, but I’m betting your list still won’t be very long!
About fees, Mr. Lincoln offers two thoughts, one less obvious than the other. Fees are more than simply the “bread and butter involved,” according to Mr. Lincoln. Still, “an exorbitant fee should never be claimed.” Ethical Rule 1.5 offers the same reminder, and ignoring it carries potentially significant consequences. Nevertheless, many lawyers charge outrageous fees because they can, and because no one will complain. Stop it, everyone! Those fees adversely affect our profession in ways we cannot measure. We can all make a decent living without gouging our clients and adverse parties. We owe our profession and our society that much, at least!
The less evident comment about fees relates to earned upon receipt and flat fee/advanced fees. About being paid in full, in advance, Mr. Lincoln observes:
When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance.
He suggests—remember, he plied our trade before lawyers billed by the hour—that a lawyer “[s]ettle the amount of fee and take a note in advance.” Then, he writes, “you will feel that you are working for something, and you are sure to do your work faithfully and well.” A note for fees may implicate ER 1.8(a), and modern practice calls for advanced fees which must be deposited in the attorney’s trust account. Nevertheless, Mr. Lincoln’s comment remains relevant, for most of us—however noble we may be—are working for a living and are mere mortals, motivated by a desire for financial remuneration.
Mr. Lincoln contributes nuanced thoughts on honesty, in that he refers to the “vague popular belief that lawyers are necessarily dishonest.” He explains himself by adding:
I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal.
Of course, Mr. Lincoln challenges lawyers to be honest, and urges those who cannot be honest to choose another profession and try to be honest there. His observation about popular beliefs is significant, however, as it places in context the discomfort that comes from being loved in a hated profession. That lawyers in another time suffered from the same irritating irrationality makes the whole experience less odious.
Finally, there is Mr. Lincoln on extemporaneous speaking. He—the man who may have been our most eloquent president—was for lawyers speaking well on their feet, definitely, but also claimed “there is not a more fatal error to young lawyers than relying too much on speech‑making.” If anyone, he noted, “upon his rare powers of speaking shall claim an exemption from the drudgery of the law, his case is a failure in advance.” A reader can appreciate Mr. Lincoln’s focus on men—lady lawyers were a rarity in 1850, if there were any at all—but highlighting young men begs the question: what about non-young lawyers who still think a few choice words during a hearing or an oral argument will carry the day?
So, after 165+ years, what lessons can we learn from the man who must be the best lawyer who ever lived in the White House? Be honest, work hard, write well, and use good judgment in taking cases, and most everything else will be fine!
Note: This piece, more or less, was previously posted on March 19, 2014. A slightly different version was published in Arizona Attorney magazine—in the February 2011 issue—as Law’s Attic: Lawyer Lessons from Abraham Lincoln.