Tales from the Depths
By James S. Rummonds
From the moment a lawyer passes the Bar and takes the oath of admission, whether he or she signed on for it or not when applying to law school, that lawyer suffers the loss of a significant portion of his or her personal liberties and freedoms for the privilege of practicing law.
As officers of the court, like members of the military, we are subject to a code of conduct, a chain of command, a unique system of governance, a professional disciplinary system that enforces the ethical and professional standards and rules, and for many of us, even a uniform. And like the military, the strictures and constraints of being a lawyer are never relaxed, suspended or given a rest - they are as much a part of the life of lawyers as the rocks and shoals that sailors must be on constant lookout for when at sea. Both can sink a career.
"Rocks and Shoals" was the common name given to the Articles for the Governance of the United States Navy until the Articles were replaced after World War II by the Uniform Code of Military Justice (UCMJ). As a Seaman duce going aboard my first ship, I can remember the Old Salts telling all us "boots" of the bygone terrors of Rocks and Shoals. "You're lucky that we're not under Rocks and Shoals, because you could be flogged or keel hauled for an infraction in the old navy". I've never heard of the State Bar meting out floggings or keel hauling for violations of our professional and ethical standards of conduct and practice, but the consequences can be equally dire.
The phrase "rocks and shoals" appears in Article 4 of the Articles of Governance of the United States Navy: "The punishment of death, or such other punishment as a court martial may adjudge, may be inflicted on any person in the naval service...[Who]... intentionally or willfully suffers any vessel of the Navy to be stranded, or run upon rocks or shoals, or improperly hazarded or maliciously or willfully injures any vessel of the Navy;" Other misdeeds under Rocks & Shoals included the wrongs of those "[who]...strike[] or attempt to strike the flag to an enemy or rebel without proper authority, or, when engaged in battle, treacherously yields or pusillanimously cries for quarter;...or...[Who]...in time of battle, displays cowardice, negligence, or disaffection, or withdraws from or keeps out of danger to which he should expose himself;..."
As a board certified specialist in legal malpractice (American Board of Professional Liability Attorneys or ABPLA), I have had the opportunity over the years to see just about every type of malpractice and transgression against the California Rules of Professional Conduct imaginable. Some of the transgressions I have been called upon to deal with are so stunning in terms of their flagrance, audacity and manipulations that most of us would never even think of such intrigue, much less put it into action.
Notwithstanding the rare marquee case, most legal malpractice is so mundane, predictable and preventable it should never occur. Despite this, legal malpractice happens every day in almost every law office in the land. Fortunately, most legal malpractice is remediated before causing any untoward consequences.
Notwithstanding the banality of the garden variety malpractice cases, both sorts, the bold and the banal, stand on equal footing in terms of the elements of liability, if not damages. In other words, stealing from a client trust account in order to pay for hookers or a drug habit or missing a statute of limitations by a day can both cause a policy limits demand to be made against your E & O carrier. Both can thrust a lawyer into the living hell of being a defendant in a legal malpractice lawsuit.
Rocks & Shoals of the Law will be a monthly newsletter chronicling the work-a-day decision making, mistakes, experience, complaints and outcomes of lawyers that have found themselves in the cross hairs of legal malpractice claims in California and elsewhere. We will not be duplicating the content of other newsletters that essentially serve as reporting services, publishing and sometimes analyzing the latest appellate opinions related to legal malpractice. Rather, Rocks & Shoals of the Law will delve into true case histories arising from lawyers (ranging from the careless but well-intentioned to the truly conniving and malevolent) running afoul of the standard of care and fiduciary duties in the practice of law. The stories will be factual and unvarnished, but the names, venue and settings will be changed to avoid unnecessary embarrassment and "other complications."
Rocks & Shoals of the Law is a monthly newsletter written, produced and edited by Rummonds & Mair of Aptos, California. It will also appear on our website, www.malpraclaw.com.
James S. Rummonds, in addition to being board certified in legal malpractice by ABPLA, is also board certified in civil trial practice by the National Board of Trial Advocacy. Jim teaches civil trial advocacy at Stanford Law School's Trial Advocacy Workshop and University of San Francisco School of Law's Intensive Advocacy Program. Jim has also lectured at continuing legal education programs on the subjects of professional ethics and legal malpractice and was a contributing editor to West's Civil Trials and Evidence.
John Schlaff is of counsel to Rummonds & Mair and will also be contributing to Rocks & Shoals. John has both defended and prosecuted legal malpractice cases in the last seven years in participation with Rummonds & Mair. John, whose primary office is in Los Angeles, has also represented lawyers in a variety of civil litigation matters for the past 20 years. John graduated from Harvard Law School in 1987 and has extensive experience both as a business litigator and as a software designer. He often combines both skill sets to save our clients significant amounts of money by automating the litigation process with customized software solutions.
Louis Abronson has recently become of counsel to Rummonds & Mair and will also be contributing to Rocks & Shoals. Louis' background is in both large and small firms and he has recently shifted the emphasis of his practice from medical to legal malpractice. Louis graduated first in his class from UC Davis SOL in 1997 and recently participated in the World Mind Sports Games (IMSA) as a member of the U.S. Men's Go Team in Beijing China.
