October 14, 2004
I am in receipt of your letters dated September 17 and October 15, 2004, each suggesting the same enclosed "sample client letter."
I do not believe that we have ever met, talked on the telephone or previously corresponded via any medium. I am, therefore, puzzled as to what concept of usage induces you to address me by my first name. But, I am not going to worry over whether this is merely an impertinence or an example of a churlish upbringing.
I will also pass over the hyperbole with which you dramatize the current election as dispositive of America's future. What does concern me is for a lawyer, who holds himself out even on his own stationary as some sort of public benefactor, to so blatantly flaunt a lack of professionalism and either a misunderstanding or willful indifference to legal ethics, as to send out the correspondence in question. To particularize:
1. People who go to a particular lawyer for a particular personal problem or problems do not thereby become a class that lawyer is authorized to represent for his own purposes, ideology or paranoia. A lawyer's responsibility to each client is for the business for which he was hired by that client. It is not an open-ended relationship that the lawyer can unilaterally expand.
2. You know absolutely nothing about my clients or their personal interests or attitudes, or that any of your four bulleted points are thrust from a perspective for which they would have any sympathy whatsoever. Yet, you arrogantly suggest that I sloganize those clients with unproven assertions that suggest more a recruitment to some form of Marxist class warfare than the interests of a typical Ohio litigant.
3. Your suggested points are not only inappropriate for a lawyer to suggest to clients who have trusted him with their personal problems, under the guise of acting as their lawyer; but they also suggest a line of very sloppy half-baked analysis which would cast doubt on the reasoning process of any lawyer who embraced them. Even the most rudimentary analysis would indicate obvious conflicts of interest inherent in your assertions. The fact that a client today may have a tort case does not give him an interest in promoting large judgments in other tort actions tomorrow. He may be a litigant in his own case at the moment, but he is also a lifetime consumer who will be afflicted as the costs of others' actions are passed through to consumers of the products of targeted companies.
In advising a client, a lawyer owes a duty of full disclosure. Your suggestion that the tax cut was designed to benefit the wealthy, fails to disclose many significant aspects of the bill, not the least of which is that which refutes your premise. After all the changes, the wealthy are still taxed at a far higher marginal rate than other Americans. Your desire to act as a socialist demagogue cannot excuse this obvious breach of a fiduciary's duty.
The question of overtime pay clearly cuts both ways. You blithely assume that all your clients have the same interest, but one set of clients' loss may but open opportunity or improve conditions for another set of clients. Your reckless disregard of this obvious fact speaks to my points.
On Social Security, you again fail to disclose the relevant facts, including the most relevant fact that Social Security was upheld by the Courts as a revenue producing tax not as an entitlement. Those "dollars"--prior to any individual's actually qualifying for benefits--are not your clients' to start with.
4. Your final paragraph is suggestive both of a desire for some sort of "putsch" where you would "take control of our government once again" and real confusion with reference to letting "democracy reign again." Apparently your legal training did not extend to a competent course in constitutional law--at least not to the extent of reading the Federalist Papers and Madison & Hamilton's expositions of the Constitution--or you would know that it was intended to be a vehicle to protect the several republics from "democracy."
It is one thing for a lawyer, who is active in politics, to write to his political supporters or potential political allies, and urge a political course. It is a very, very different thing for a lawyer to write to his clients, using the umbrella of his professional representation, to try to parlay that relationship into something that the client never signed on for. The fact that you would take this tack probably affords a pretty strong argument why some form of tort reform, addressing both the penchant of some legal vultures to solicit clients for outrageous class actions and restricting the fees allowed lawyers in such law suits, would be in order. Certainly Courts need to be more careful in allowing class certification, as well. The potential conflicts of interest in such cases are also obvious.
From start to finish, your letter displays a fundamental lack of essential understanding of the attorney's role.
Sincerely,
William Flax