Illinois Bar Journal

June 2009Volume 97Number 6Page 316

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Loss Prevention

A Spy in the House of Law

Don your trenchcoats, young lawyers - it turns sout the tenets of spycraft ("never go against your gut") make pretty good rules for recent admitees.

I'm a spy in the house of love
I know the dream that you're dreamin' of
- The Doors, "The Spy"

During the Cold War, the CIA is supposed to have promulgated rules for its spies and other operatives. These have come to be known as the Moscow Rules, and there are many different "definitive" versions.1 Obviously, writing the rules down where they could fall into enemy hands would violate the most basic tenets of spycraft, so, for lack of a more definitive version, here are the 10 rules displayed in the National Spy Museum in Washington, D.C.

  1. Assume nothing.
  2. Never go against your gut.
  3. Everyone is potentially under opposition control.
  4. Don't look back; you are never completely alone.
  5. Go with the flow, blend in.
  6. Vary your pattern and stay within your cover.
  7. Lull them into a sense of complacency.
  8. Don't harass the opposition.
  9. Pick the time and place for action.
  10. Keep your options open.

As I read these rules on a recent trip to the Spy Museum with one of my former colleagues, I reflected upon how useful these basic precepts would have been to us as new lawyers - outsiders looking in on the alien culture of law firm life, trying desperately to pass as one of the "locals." Let's take a look at how young lawyers can apply these rules of espionage to pass, relatively unscathed, through their dangerous first years of practice.

1. Assume nothing. No one expects you to know everything - you will, in fact, meet people who assume you know nothing at all. You cannot do your job or learn your trade without asking questions. As you probably know by now, no lawyer knows all the law, but she knows the right questions to ask and where to find the answers.

2. Never go against your gut. This bit of advice is actually the finest piece of risk management advice that can be given to any lawyer, new or otherwise. Many, many claims reports to lawyers' malpractice insurers start with the phrase, "I had a bad feeling about this (client, matter, etc.) from the very beginning." Trust the bad feeling. It is usually correct, and it will become ever more accurate the longer you practice law. If things don't feel right, check it out with a trusted mentor.

3. Everyone is potentially under opposition control. So don't talk about client confidences and secrets in the lobby of your firm, in the elevator, or in a dive bar a zillion blocks from your law firm. There are many apocryphal and fun stories about how loose lips have sunk various legal ships. These stories are only fun if you are not the starring character.

4. You are never completely alone. If you need help, get it. If you think you have committed malpractice, get help now - before you lose an opportunity to fix the problem and your firm loses professional liability insurance coverage by giving late notice. If you think you have a substance abuse or mental health problem, don't wait - get help. The Illinois Legal Assistance Program (www.illinoislap. org) is an excellent resource.

5. Go with the flow. Try to maintain a sense of perspective about your life and your career. The first years of legal practice - just like the first year of law school - are hard and time consuming. Use this time to learn as much as you can, knowing that competence will open many doors for you later. See #10, below.

6. Vary your pattern; stay within your cover. Do use these early years to explore interesting new areas of legal practice with experienced mentors. But don't, at any time during your career, take on matters that you are not competent to handle. "Dabbling" is not only a fertile source of claims, but also a violation of your ethical duty of competence (see IRPC 1.1).

7. Lull them into a sense of complacency. That sounds a bit sinister, so perhaps we can rephrase this rule: Be reliable. Communicate regularly with the lawyers (or clients) for whom you are working, so that they know you are staying on top of things. If there is bad news to deliver, do so promptly, with your suggestions about potential solutions to the problem.

8. Don't harass the opposition. Be fair and cordial to opposing counsel, both because it is the right thing to do and because it serves no useful purpose to be a jerk. Being a "zealous advocate" does not require nastiness. Most clients do not want to pay for their lawyer to bicker with other lawyers, and the clients who want the proverbial "junkyard dog" for a lawyer are, well, barking up the wrong tree.

9. Pick the time and the place for action. During these early years, your time will be at a premium. As Lincoln noted, it is your "stock in trade," and you will also need to devote some time to staying healthy, happy, and in touch with the people you love. Learn to pick your bat tles, and say, "no thanks" to some activities and commitments - however worthy - that don't allow you time to rest and repair.

10. Keep your options open. Learn your craft and good practice management during these early years. Participate in the bar association and other professional organizations to strengthen your skills and develop a professional network. With competence and connections comes opportunity. There is also great satisfaction in taking part in a community of lawyers who are on the same not-so-secret mission for mastery of their areas of practice.

This article (but not your career) will self destruct in 10...9...8...

Attorney Karen Erger, former vice president and director of loss prevention with ISBA Mutual in Chicago, now works with Holmes, Murphy & Associates in Cedar Rapids, Iowa.

1. Wikipedia has gathered many of the supposed rules at

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