December 2002

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

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

by Barrie Althoff, WSBA Professionalism Counsel

This is the first article of a two-part series.

This past summer I motorcycled around the perimeter of the United States, touching its four corners in California, Florida, Maine and Washington. In 23 days and 11,570 miles of riding, I roasted, baked, fried, steamed and froze my way through 30 states and three Canadian provinces, mostly on two-lane country roads.1 I visited numerous friends and relatives, and saw unforgettable beauty. While riding, I thought about parallels between motorcycling and the practice of law.

To become a skilled motorcyclist takes aptitude, attitude, training, common sense, a sense of balance, and a lot of practice. Before setting out on my journey, I took a motorcycle safety course and systematically and intensively practiced safe-riding techniques. I rode in heavy rush-hour and city traffic, in interstate traffic, and on twisting country and mountain roads. I rode on pavement, on gravel, and on dirt. I rode when it was hot, sunny, cloudy, cold, drizzly, raining, foggy, and even snowing. I was prepared when I later rode narrow, winding coastline and mountain roads; in rush-hour urban traffic; in torrential rain and 114-degree deserts (while I straddled a furnace-like engine); through drenching heat and humidity; and through chilly, cloudy and foggy Maine and North Dakota mornings.

I learned to anticipate danger, stop quickly and safely, swerve around obstacles, and make myself and my bike more visible to others. Above all else, I practiced riding defensively — scanning and identifying potential dangers, predicting what other drivers might or might not do, deciding what I needed to do to remain safe — and then executing those decisions. I practiced graciously yielding the right-of-way — no easy task for motorcyclists or lawyers — so as to be alive to ride rather than be dead right. Since in most automobile-motorcycle collisions the automobile driver claims never to have seen the motorcyclist, I assumed in riding that drivers would not see me no matter how visible I was, and thus I needed to ride as if they could not see me. On my trip I was twice forced off the road by adjacent sports-utility-vehicle drivers moving directly into me without signaling, once in a torrential downpour in Miami rush-hour traffic, and once in Santa Cruz. Defensive riding also prepared me to react safely when a buck and doe suddenly leapt into my immediate path from an adjacent forest one early foggy morning in Wisconsin. Had I not practiced emergency handling for such dangers, I likely would not be here to write this article.

Riding a motorcycle requires a rider's full attention. It is a whole-body (and for some of us, an out-of-body) experience. Your head constantly scans for dangers — and enjoys the ride. Your left hand controls the clutch, lights, horn and left-turn signal; your right hand the throttle, front brakes and right-turn signal. Your left foot shifts gears, your right controls the back brakes, and both feet balance the bike when starting and stopping. Shifting body weight controls the bike's degree of lean for turning.

Some potential riders lack the dexterity, strength, coordination or skills to safely balance and control a 500- to 800-pound motorcycle, even though they know what is required. Others lack the aptitude to ride defensively, or the common sense to anticipate and react to hazards. Others have learned only basic riding skills, have never improved them, and remain novices. These riders are hazards to themselves, other riders and the public.

Lawyers need an aptitude for law practice, a sense of balance, common sense, and a willingness to improve their skills. Some lawyers, perhaps brilliant as students, lack the aptitude or common sense to be good, practical lawyers. Others have the aptitude to practice law, but do little to improve their skills or keep current in the law. Others lacking a sense of balance spend disproportionate amounts of time and client money on peripheral issues while neglecting central issues. Some lawyers, often those most uncivil to their brethren and clients, have an attitude problem that severely hampers their effectiveness. Other lawyers, lacking defensive practice skills and ignoring red flags requiring immediate attention to deteriorating relationships, regularly collide with clients and colleagues. Others constantly face crises due to their inattention to client matters. These lawyers are hazards to themselves, their clients and the legal profession.

Lawyers need to learn to anticipate dangers and promptly react to them. The danger may be undertaking a matter in which the lawyer lacks competence, handling a routine matter without due care, taking on too many cases, not supervising adequately the work of nonlawyer staff, neglecting clearly dissatisfied clients, not maintaining or paying attention to case calendars, or neglecting the lawyer's own health or family responsibilities.

A motorcycle is difficult to control and keep balanced when moving very slowly, especially when turning. As speed increases, the cycle becomes more stable, and balance and control become easier. But, as speed increases, the rider's time to react to danger rapidly diminishes.

To turn safely, a rider scans an upcoming turn for possible hazards, adjusts speed before entering the turn, and, while leaning the bike in the direction of the turn, rolls the throttle to constantly and smoothly accelerate through the turn. If the rider enters a turn too slowly or with too much lean, the bike may fall over. If the rider enters too fast, the bike will turn wide into opposing traffic lanes, or miss the turn completely, since the rider cannot safely brake while turning, for doing so counters the cycle's balance. A turn entered too fast can sometimes be rescued by increasing the lean of the bike, while a turn entered too slowly, or with too much lean for the speed, can sometimes be rescued by accelerating through it. Of course, even when a turn is entered with the proper speed and lean, unexpected objects on the road can cause a mishap.

Potential hazards threaten riders even when they ride or stop in straight-line traffic. Other vehicles often pull into the paths of motorcyclists. A cycle's tires, or the rider's feet, can easily slip and slide on grease, oil, antifreeze, sand, or loose gravel on the pavement. When slowing or stopping, cautious riders brake and downshift and use both stoplights and hand signals to alert others. They also plan a safe escape route ahead or to the side to avoid being rear-ended. If the rider is parking the bike, he turns off the ignition and fuel-tank petcock to assure easy starting later, and carefully lowers the kick-stand so the bike does not fall over.

Our law practices will not stand up on their own. They need us to keep them going and give them balance. Starting a law practice requires balancing money, time and effort. We may understand the theory of practicing law, but lack practical experience. We are unsure how fast and with how much lean — or how forcefully or gently — we should negotiate or litigate. Once we start, it is difficult to change pace or procedures. Most of us have pushed or leaned too much or too little in negotiations or litigation only to realize our approach was counterproductive. As our practices gain momentum and clients, we feel more competent and in control, but we also have less time to respond to ourclients' concerns and greater need for defensive practice skills.

Yielding the right of way is difficult for many lawyers. Clients often hire us specifically to enforce their right-of-way, and we cannot yield it without their consent. When appropriate, however, we can talk to them about matters other than their legal rights — such as moral, economic, social and political factors — and tell them they are fools if they do not yield their right-of-way. If they are riders, they will understand when we tell them, "Yes, you have the right-of-way, but if you take it, that truck coming at you will flatten you and you'll never ride again." Sometimes we have to urge our clients to yield the right-of-way at the intersection, so they can safely pass the offender down the road.

When we decide to slow or stop our practices, we need to clearly signal that intent to others and to bring our practices to a smooth stop. We need to put our kickstands down so that our practices do not fall over and crush us. Once we have resigned from the Bar or gone to inactive status, we need to turn off our legal petcocks, cut off the flow of legal services, and discontinue practice. If we do not do so, we will slip on the ethics requirements; risk a collision with a dissatisfied client; or be rear-ended by a malpractice, disciplinary or unauthorized-practice-of-law complaint.

Most of us continually struggle to balance our personal and professional lives. Sometimes we lean too far and fall on the professional side, with dissatisfied clients or colleagues, or malpractice or disciplinary claims, and sometimes we lean too far and fall on the personal side, with marriage or family problems, substance abuse, or physical or spiritual neglect. With experience we learn that sometimes we need to speed up or slow down, or to lean more one way or the other, as competing needs require of us. And yet, even then, we sometimes still fall down.

In riding across the country I encountered numerous construction zones. Riders must slow down; sometimes stop and wait; advance single file; perhaps take a detour; and likely go through dirt, dust, mud, loose gravel or fresh oil. If we do not proceed cautiously, we are likely to harm ourselves, our bikes and others. We may even be ticketed. We may become irritated over the delay and inconvenience, the grime sticking to our bikes, and may think that the old road wasn't that bad (especially after we came to know the location of its ruts, bumps and potholes), and we wonder why it had to be repaired now, just when we want to pass over it. On emerging from the construction zone we usually speed up and resume our journey.

We lawyers also go through construction zones in our lives when the roads and paths we know well are torn up and replaced and when we feel irritation toward construction workers. Sometimes we ourselves are the construction workers, as when we change our areas of practice, or add or lose clients or colleagues, or change our office location, or when we have to defend ourselves in a malpractice or disciplinary matter. Sometimes the construction workers are Supreme Court justices or the Bar Association, mandating changes in our practices or the court rules, and tearing up the legal procedures and destroying the forms we have struggled to master. And sometimes the construction zone is not in our professional lives, but in our personal lives, where marital, family, health, or other issues may demand our full attention and reduced speed.

When we are in construction zones, whether in our professional or personal lives, we need to slow down and heed the caution signs, and perhaps even take a detour or change our destination. If we do not do so, we may find ourselves being ticketed for malpractice or ethics violations, and harming ourselves, others, and our practices. We may find that by failing to slow down and heed the caution signs, we have become so coated with construction grime that we have lost our way in our professional and personal lives.

Motorcyclists and lawyers both spend most of their time sitting. After hours of doing so, however, motorcyclists more obviously than lawyers appear to be getting somewhere, presumably closer to their destination. For many motorcyclists, the ride itself is the destination and the physical location of the end of the journey is only of secondary importance.

For a lawyer, the ride through particular legal steps may be satisfying and, in effect, the lawyer's personal destination. Clients are not motorcyclists, however, and usually have no interest in the ride. Instead, they want only to get as quickly and cheaply as possible to their destination and completion of the legal services. After spending many hours and client money working on a client matter, lawyers may have difficulty convincing their clients that they have actually moved them closer to a solution unless they have previously explained to their clients what they are doing and why. To a client, a lawyer's billed activities may easily appear analogous to a rider's pleasure ride where the rider, after many twists and turns, after much noise and effort, ends up exactly where he started. Or the client may view the lawyer's efforts as no more than an unsuccessful game of solitaire with the lawyer making a great many motions, each motion perhaps logical in itself, but ultimately producing nothing of value to anyone.

Before motorcycling, I make sure I have oil and fuel and the fuel petcock is turned on; that all lights, signals, instruments, the horn, the throttle, the clutch and gears and brakes operate properly; that tires have adequate tread depth and are properly inflated; and that mirrors are properly adjusted. I always wear a helmet, even where not required by law.

On any trip, some baggage is needed. Before I set out on my journey, I carefully considered what clothing and equipment to take, since my storage space was limited to two saddle bags (one filled with extra fuel) and a duffle bag. I thought I had packed only what I needed and no more. Once underway, however, finding I had more than needed, I shipped the excess home, lightening my load and cares. As experienced travelers know, take half the stuff and twice the money that you planned on.

Since my motorcycle fuel tank is small, the bike has no fuel gauge, and my planned distances were great, I carried extra fuel in a saddle bag. I used it only once, when my main fuel tank ran dry in New Mexico, nearly 30 miles before I expected. I had not adequately taken into account my reduced gas mileage due to very strong headwinds and the very hot air's evaporation of fuel. Like professional malpractice insurance, my saddlebag fuel was a burden to carry, I hoped I would never need it, but it made what would have been a major aggravation (pushing a heavy motorcycle 30 miles under a hot New Mexico sun) into a minor inconvenience (pulling to the side of the road and refueling). Further, it gave me a feeling of security throughout the trip knowing that if and when I needed it, it was there.

Sometimes on a journey, a rider's equipment fails. The rider then either repairs it or improvises. When my bike hit a misaligned pavement joint in New York, the jolt disabled my combination speedometer, odometer and trip meter (repairable only by the manufacturer over several weeks). Since I used the speedometer to ride within the speed limit and the trip meter as a gas gauge (by knowing how far I had traveled since refueling I could calculate my likely fuel consumption), the loss of the instrument was more than an annoyance. For the rest of the journey, however, I successfully improvised methods to calculate my speed and distances traveled. Happily, I was not ticketed for speeding nor did I again run out of gasoline.2 

As lawyers, we sometimes find little guidance in our legal instruments, and sometimes those instruments need overhaul and updating. Washington's current Rules of Professional Conduct, for example, set out standards of ethical conduct for us, but are silent about how advertising and solicitation rules should be interpreted in light of the Internet, e-mail and chatrooms. Until those rules are updated, lawyers must look to other instruments and count legal mileposts to do their best to comply with ethical limits.

As lawyers, we also must regularly examine our practices and lives. We must assure both our own physical, mental and spiritual health, and the professional health of our practices and offices. We must be prepared to handle all reasonably foreseeable opportunities and dangers. We must be ready to weather times when our health or practices are not doing well, when our hearts and souls feel unrewarded and alone, when we have taken on too much, when too many demands are being made on us, and when we crave companionship but must complete our tasks alone. When we start our professional day, we should be ready to devote ourselves to our clients and be assured we have the personal resources to do so.

Sometimes we find we have taken on too much baggage in our practices and lives. We need to lighten our loads by removing some of the irritants and distractions. Sometimes we need to improvise. We may have taken on too many clients, or high-maintenance clients or colleagues, too many cases, or too many professional responsibilities or areas of practice. We may have devoted ourselves so much to social or community needs that we neglect our personal and family needs. We need either to ask others to help us, or to reduce our responsibilities. While relishing the richness of life and others, we need to simplify our practices and lives. We may be so caught up in the motion and complexity of our lives that we no longer live life but become mere caretakers of the objects and cares we have accumulated.

NOTES

1. For detail enthusiasts, I rode a 2002 Harley Davidson Sportster 883R with added tachometer, clock, thermometer, driving lights, headlight modulator, engine guard, mini sissy bar and luggage rack (for tying the duffle bag), soft saddlebags and reflectors.

I started from Mercer Island, Washington, hugged the Washington, Oregon and California coasts down to the Mexican border, then turned east and fried and roasted through California, Arizona, New Mexico and into El Paso, Texas. I then headed southeast along the Texas-Mexican border through Del Rio, Laredo and Brownsville, and, steaming and broiling, wrapped around the Gulf of Mexico through Corpus Christi, Houston, New Orleans, Mobile and Pensacola. I then dropped down the west coast of Florida, southeast through the Everglades, and down to Key West.

From Key West I rode north up the east coast of Florida, Georgia, South Carolina, and out to North Carolina's outer-banks islands. I continued hugging the coast up through Virginia, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire and Maine. Following the eastern border of Maine northward to Matawaska, I entered New Brunswick, Canada. I then rode west through Quebec and Ontario before heading southwest through Michigan, Wisconsin, Minnesota and into South Dakota. I then rode up to North Dakota and back into Minnesota, where mosquito swarms nigh devoured me. Finally, I rode west through northern North Dakota (where morning cold and wind chill nearly froze me), Montana, Idaho, and back through northern Washington, with a brief stop in Blaine before returning to Mercer Island. I did not make it to Alaska or Hawaii.

While my motorcycle trip was ridden on one motorcycle, my law career has involved several different rides. I began practicing law in New York City, but changed rides several years later by moving to Seattle and continuing my mostly transactional private practice. Eleven years later, I mounted a new ride by becoming a civil prosecutor with the Securities & Exchange Commission. Seven years later, I mounted another new ride by becoming the WSBA director of lawyer discipline and chief disciplinary counsel. And another seven years later, I began my current professional ride as part-time WSBA professionalism counsel.

2. I did so by using my tachometer (experience told me, for example, that 2,800 revolutions per minute in fifth gear on flat terrain meant I was going between 55 and 60 miles per hour), or by counting mileposts and time (for example, one milepost in 60 seconds means 60 miles per hour). The most difficult speeds to estimate were slower speeds in towns where there were no mileposts. There, I just made sure I was going slower than most of the traffic.