Thursday, August 21, 2003
http://www.abanet.org/journal/ereport/jy18rodnt.html
Fast Help for the Lonely, the Hassled, the Terrified
BY THE RODENT
In and around The Firm, it’s hard to say anything that will go uncontested. If you want to test this, try telling a colleague that today is Friday (assuming it’s not Saturday or Thursday or any day in between). You’ll get a variety of responses that will include such gems as, "Well, not in China it isn’t," and, "I do not submit to your groundless representation." And keep in mind that those are the rejoinders from colleagues. It’s much worse when you’re dealing with opposing counsel.
Fortunately, there is some relief. There is a place you can go to find peace, speak freely, be heard and never be contradicted. No, it’s not the neighborhood bar. It’s much closer than that. I’m talking about an old friend, the file. More specifically, we can express ourselves in the Memo to File, also known as "the CYA memo" and "the lawyer’s best friend."
When things go bad, the Memo to File is your ticket to saving your ticket to practice law. You can say whatever you want and, in the history of the practice of law, the file has never fought back, never told you you’re wrong, never rejected your conclusions or complained about how many hours it took. The Memo to File is peace of mind for lawyers.
Lawyers who believe that outrage has not yet died can use the Memo to File to report on behavior they consider outrageous, unethical or unfair. At the same time, they can explain why they should be held blameless and how they took the moral high ground. Or, if they just want to vent, this is the place to do it. It’s a simple matter of writing something up and filing it. Whistle-blowing has its repercussions. Writing memos to the file, in my experience at least, is a much safer approach.
I remember my first Memo to File. I had completed some research that I was certain was correct. But the partner to whom I delivered the work didn’t care for my conclusions, because they were contrary to what she had already told the client. The memo was altered and sent to the client. Fearful of losing my license to practice law or otherwise taking the fall, I wrote a Memo to File describing what happened. Suddenly, I felt safe. I eventually became so fond of the Memo to File that these days I sometimes send my columns there in order to avoid getting feedback from my editor.
When writing to the file, you can pass blame to whomever you like–colleagues at The Firm, clients and anyone else who might be there to accept it. Anyone, that is, except you, the memo writer.
If you want to be entertained, pull up a Firm file relating to a case that went bad. Maybe it’s that case, now part of Firm folklore, in which the client was advised that it was OK to dump toxic waste into the community swimming pool. That sort of file will be swimming with memos to the file. Such memos, packed with accusations and defenses, make entertaining reading. You can also pick up some tips–if any of the lawyers who wrote the memos are still with The Firm, still allowed to practice law and not presently incarcerated.
In the worst-case scenario, your malpractice insurance carrier, investigators from the state bar or even scarier types will be the ones to read what you write in your Memo to File. When that happens, the file is like your defense counsel. Think of the Memo to File as your Get Out of Jail Free card. Use it judiciously.
DEAR FILE
Fast Help for the Lonely, the Hassled, the Terrified
BY THE RODENT
In and around The Firm, it’s hard to say anything that will go uncontested. If you want to test this, try telling a colleague that today is Friday (assuming it’s not Saturday or Thursday or any day in between). You’ll get a variety of responses that will include such gems as, "Well, not in China it isn’t," and, "I do not submit to your groundless representation." And keep in mind that those are the rejoinders from colleagues. It’s much worse when you’re dealing with opposing counsel.
Fortunately, there is some relief. There is a place you can go to find peace, speak freely, be heard and never be contradicted. No, it’s not the neighborhood bar. It’s much closer than that. I’m talking about an old friend, the file. More specifically, we can express ourselves in the Memo to File, also known as "the CYA memo" and "the lawyer’s best friend."
When things go bad, the Memo to File is your ticket to saving your ticket to practice law. You can say whatever you want and, in the history of the practice of law, the file has never fought back, never told you you’re wrong, never rejected your conclusions or complained about how many hours it took. The Memo to File is peace of mind for lawyers.
Lawyers who believe that outrage has not yet died can use the Memo to File to report on behavior they consider outrageous, unethical or unfair. At the same time, they can explain why they should be held blameless and how they took the moral high ground. Or, if they just want to vent, this is the place to do it. It’s a simple matter of writing something up and filing it. Whistle-blowing has its repercussions. Writing memos to the file, in my experience at least, is a much safer approach.
I remember my first Memo to File. I had completed some research that I was certain was correct. But the partner to whom I delivered the work didn’t care for my conclusions, because they were contrary to what she had already told the client. The memo was altered and sent to the client. Fearful of losing my license to practice law or otherwise taking the fall, I wrote a Memo to File describing what happened. Suddenly, I felt safe. I eventually became so fond of the Memo to File that these days I sometimes send my columns there in order to avoid getting feedback from my editor.
When writing to the file, you can pass blame to whomever you like–colleagues at The Firm, clients and anyone else who might be there to accept it. Anyone, that is, except you, the memo writer.
If you want to be entertained, pull up a Firm file relating to a case that went bad. Maybe it’s that case, now part of Firm folklore, in which the client was advised that it was OK to dump toxic waste into the community swimming pool. That sort of file will be swimming with memos to the file. Such memos, packed with accusations and defenses, make entertaining reading. You can also pick up some tips–if any of the lawyers who wrote the memos are still with The Firm, still allowed to practice law and not presently incarcerated.
In the worst-case scenario, your malpractice insurance carrier, investigators from the state bar or even scarier types will be the ones to read what you write in your Memo to File. When that happens, the file is like your defense counsel. Think of the Memo to File as your Get Out of Jail Free card. Use it judiciously.
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