January 2003

Ethics and the Law
Lawyers and the Art of Motorcycle Riding (Part Two)

by Barrie Althoff , WSBA Professionalism Counsel

This is the second article in a two-part series. [link to part one]

Harley-Davidson riders have a slogan: "Ride to live, live to ride." We ride safely so as to stay alive and so as to enjoy life, and we stay alive so that we can continue to enjoy riding.

We lawyers might adapt the slogan: "Practice to live and live to practice." We practice law because working for justice, the essence of our practices, gives meaning to our lives. We practice ethically so that our professional careers stay alive. And we want to continue living our lives because we know that there is an infinite and ever-renewing need for our efforts to make our communities more just and because we can make a difference in the lives of our clients.

Motorcyclists and lawyers have to be able to sit in the hot seat. A motorcyclist, particularly of an air-cooled engine, straddles an engine radiating heat, with oil temperatures exceeding 225 degrees. In very warm weather (over 114 degrees in Arizona), riding can become uncomfortable. Riders learn to take the heat, however, if they want to ride. Those who cannot take the heat try to cool down by pushing themselves back onto the passenger seat, or dismounting and letting the engine cool. If the engine is not allowed to cool when needed, it will overheat and the ride will come to an abrupt end.

We lawyers are often in the hot seat. We may represent unpopular clients or causes and be subjected to unfriendly public scrutiny and criticism. Lawyers handling criminal-law or domestic-violence cases, for example, regularly confront violence and encounter threats of personal harm. At great risk to themselves and their families, these lawyers embody the notion that we are a nation of law, not of men. But if we lawyers cannot personally take the heat of our practices, we cannot push ourselves back onto the passenger seat. It is our job as lawyers, not the client's job, to take the heat. If we cannot take the heat, if we cannot adequately represent the client, we need to dismount from our particular representation or practice.

We may need to change our practice area to one which generates less heat for us. Sometimes it may mean moving from a criminal-law to a civil-law practice, or from litigation to a transactions practice, or from private practice to corporate or governmental practice, or vice versa. We may also find, however, that the friction of a particular representation, client or opposing counsel has generated such heat that we cannot represent the client well. We may need to dismount the representation either temporarily or permanently. If the relationship with the client is very poor, it may need to be cooled or put on ice. Often we serve both the client and ourselves well by promptly terminating a dissatisfying representation, even if we lose money doing so. If we do not recognize when we, our practice, or a relationship is overheating and we do not take action to reduce the heat, we may burn out ourselves, our practices and our careers.

Lawyers and motorcyclists have a public-image problem. Bikers who are lawyers and lawyers who are bikers presumably are worst afflicted. In films, motorcyclists terrorize small towns with their rough ways, unkempt appearances, their bikes' powerful and noisy engines and exhausts, and their disregard for others by dangerous riding. Lawyers do so by rudeness, incivility, not communicating with their clients, sharp practices, legal "tricks," unreasonable fees, and loud mouths. In films, someone (often a misguided fair maiden) usually admits to liking (and even loving!) a motorcyclist, but no one usually admits to liking, let alone loving, a lawyer.

In reality, motorcyclists are largely invisible to the public ("Officer, I never saw the motorcyclist") unless the motorcyclist cuts in front of them, speeds past them (sometimes between lanes), or startles them with noisy exhaust. In reality, lawyers are largely invisible to the public unless a lawyer misbehaves, the public needs a scapegoat, or the client needs legal services. The public reluctantly acknowledges the need for lawyers, may even want their son or daughter to become one, but generally do not trust lawyers, except maybe their own lawyer, and they are not too sure of even that.

Beneath their leathers, dark glasses, helmets and grizzled beards, aside from their rough ways and noisy surroundings, many motorcyclists have a deep zest and relish for life and a well-grounded appreciation of the need for simplicity (but only after adding that extra chrome to their bikes). Most bikers will readily stop their rides to help others. Beneath the tough, cynical and hardened exteriors of many lawyers, behind all their trappings of legal power and the legal threats they wield, are persons who passionately care about justice and fairness in our communities and who silently, without fanfare, give their time and resources to protect the poor, the oppressed and the vulnerable in our society.

Motorcycling and practicing law are essentially solitary activities. Both also attract loners. Many motorcyclists share their enthusiasm for riding by greeting other motorcyclists with a wave of the left hand while keeping their right hand firmly on their motorcycle's throttle. Harley-Davidson riders usually wave below the handlebars, especially to other Harley riders, while other motorcyclists usually wave above the handlebars. Some Harley riders, however, stonefacedly ignore the greetings of other riders, especially non-Harley riders, refusing to greet or acknowledge them. Some riders of touring or cruising motorcycles decline to greet riders of sports motorcycles, and vice versa.

Many lawyers sense a decline of civility in our profession. Too frequently we stonefacedly ignore or rudely treat other lawyers and their staffs in our law journeys. We adopt our clients' enmity as our own and project it on opposing counsel. Big-firm lawyers look down on small-firm or small-town lawyers, litigators look down on transactional lawyers, specialists look down on general practitioners, private practitioners look down on government lawyers (until they tire of private practice and want to become government lawyers), and vice versa, and so on. Too frequently we forget that we share the privilege and burden of being lawyers, of being guardians of the law, of bringing justice to our communities. We need to take the time and effort to cordially greet one another in our daily practices, to relish each others' company, and yet all the while keep one hand on the throttle of our practices to assure that we are moving our clients towards their respective goals.

While motorcyclists sometimes ride interstate highways, usually when time is limited and distances great, we far prefer the winding two-lane country roads that promise surprises, sometimes unpleasant, around many a corner. Sometimes we find spectacular mountain or ocean views, or a low cloud teasing a tree top, or a springing buck or doe, and sometimes we find loose gravel or ice that can send us reeling. Riders must be equally prepared for both the expected and unexpected, the known and the unknown. Sometimes we become so used to the known that it becomes the unknown. Four days after completing my 11,570-mile motorcycle journey, I missed a step at home, which I have safely taken thousands of times, and fractured my ankle.

While we lawyers generally have one or two areas of practice in which we spend most of our time and in which we have developed expertise, we also find pleasure when we step outside our usual area to explore new areas. Sometimes our practices have become so routine that we miss the obvious dangers. We are more likely to commit malpractice and be subject to discipline for conduct in our usual areas of practice than we are when we undertake a new area of practice wherein we are alert to dangers. Thus, even if we have ridden a road, taken a corner, or performed a service a thousand times, we must treat each time as a first time with all the precautions of a novice. Anything less invites an unwanted surprise.

Motorcycle helmets do not have windshields wipers or washers. Rain, sleet, snow, bugs, road grime and other things that go splat onto a helmet visor can obstruct a rider's vision. A visor opening slightly allows air circulation to remove fog. Rain, road grime and bug debris can generally be ignored by focusing on where you are going rather than what is immediately in front of your face. Sleet and snow must be physically removed by wiping a hand over the visor. Sometimes "splat" accumulations become so obscuring that a rider must stop the ride and clean the visor to assure safe riding.

In practicing law, our visions sometimes become obscured by things that go splat in our faces. These may include disagreeable clients, colleagues or judges. They may include adverse results in a case; or personal, health, financial and family issues. They may include professional disillusionment.

While we need to be observant of and respond to what is immediately in front of us, we also need to stay focused on our personal and professional destinations. We must not let splats so obscure our vision that we are led astray. Sometimes we need merely to lift our visors and get a breath of fresh air to clear our personal and professional vision. Sometimes we need temporarily to step back from our practices and give our full attention to what is obscuring our vision. Sometimes we need to return to our fundamental values to regain clear vision of our destination. If we do not do so, we will come to believe that dealing with the splats is our destination rather than an impedance to them, we will mistake the immediate for the important, and, vision obstructed, we will miss the beauty of the ride.

No matter how skilled and prepared a motorcyclist is, sometimes the motorcyclist cannot get to a particular place without help from others. Tour motorcycling depends on there being unending miles of pavement and innumerable bridges constructed by others. The only way I could get to certain islands on my journey was to take ferries. To reach my destination, I had to temporarily hand over control of my journey to someone else or rely on the work of others.

The rule of law rests on the legal accomplishments of all the lawyers who have gone before us building, as it were, the roads and bridges of justice for us to ride on. In our practices, we rely daily on their accomplishments. But, we also sometimes need to pause and call for help from those next to us. A particular matter may exceed our resources, or it simply may make more sense to call in others to handle it. And sometimes we and our clients have to accept that even with the help of others, we cannot get to where we want to be from where we are.

When motorcycling, no matter how delightful or urgent the ride, time must be set aside to maintain and service the motorcycle. It may be simply adding fuel and oil, cleaning off accumulated grime, checking tire pressure or tread depth, letting the engine cool after a long hot ride, doing periodic maintenance, or tending to malfunctioning equipment. Often we can do much of the work ourselves, but sometimes we need to take the motorcycle to experts.

We also need to take the time to maintain and service our law practices. Often we are too close to our practices to clearly view them in perspective. We may need a professional colleague to look at them and give us an objective opinion. We may want to consult the WSBA Lawyer Services Department to review our office procedures and help us tune them up to be more responsive to our clients. We should also consult the best experts on our client services, our clients, by regularly asking them what they wish we would or would not do for them, and then carefully listening to both what they say and do not say to us.

We must also maintain and service ourselves. On my trip around the United States, my motorcycle was far thirstier than I was and demanded fuel far more frequently than I did. The bike's limited mileage forced me to slow down and enjoy the ride more and to accept the natural rhythm of riding. In our legal practices, we sometimes become so engrossed in building our practices or in completing particular projects that we neglect our personal and family needs. We feed our law practices but not our souls. We need to make time in our practices to refuel and service ourselves spiritually, socially, physically and intellectually. If we do not do so, we will find ourselves breaking down or coming, literally, to a dead stop. We must identify our priorities with our families and then fit our practices around those priorities rather than fitting our families and personal interests around our law practices.

Motorcyclists sometimes carry passengers. The passenger may make suggestions on the ride, and may even dictate the route and destination of the ride. But the motorcyclist controls the bike — determining when to start, stop, turn, lean, accelerate and brake. Communicating between motorcyclist and passenger can be difficult over the noise of the wind and engine, unless special efforts are made or helmet intercoms are used.

We lawyers nearly always carry passengers on our rides, namely our clients. They are akin to taxicab passengers who tell the driver their destinations. The driver can tell the passenger he does not go to that destination and decline the passenger. But if the driver accepts the passenger, the driver must take the passenger to the passenger's specified destination. The driver, however, controls the cab and usually determines what route to take to that destination and consults with the passenger if the proposed route is not the least expensive or most timely. Lawyers, like taxi drivers, usually determine the specific route of a legal service and control the case and means of getting there, but they should also consult with the client if that route is not the least expensive or most timely.

The competent lawyer with good client skills not only has a clear understanding and agreement as to the client's destination, but also communicates well with the client on how he or she proposes to get the client to that destination, and on important views or events along the way. Then, while enjoying the ride, the lawyer timely gets the client to the agreed destination without the client feeling he or she has been taken for a ride.

There are numerous parallels between motorcycling and practicing law, just as there are between practicing law and other activities. While analytically we can separate our lives into segments, all of our accomplishments and defeats, joys and heartaches, collisions and near misses, whether motorcycling or practicing law, meld into our own one unique life.

If our lives are integrated and balanced, the skills and lessons we learn in one aspect of our lives transfer to and enrichen other aspects of our lives. With practice and experience we come to know, whether on our motorcycles or in our law practices or in our personal lives, when and how much we need to slow down, stop, swerve, lean into the corners, accelerate, communicate carefully with our passengers, and maintain ourselves and our rides. We come to know how to handle construction zones. We come to know when it is time to pause and enjoy the exhilaration of the ride. We come to know ourselves, our routes and our destinations. And, when the time comes, we know when it is time for us, and how, to safely dismount.