Steptoe & Johnson LLP is a first-rate national law firm. Some years ago, when I was general counsel at a large national charity, we retained Steptoe to handle a series of complex tax and pension issues that related to the charity's former management, three members of which went to federal prison for their misdeeds. The members of the firm were outstanding, their advice was sound, and we prevailed in the matter.
Last week, a Steptoe & Johnson attorney whom I do not know -- but who somehow got my name on a mailing list -- sent me a thoughtful electronic holiday message that was to the point: "Season's Greetings from Steptoe & Johnson".
What caught my attention was the fact that this otherwise cheerful message was followed by two paragraphs of beautifully crafted lawyerlike prose that are known in the legal profession as "boilerplate."
Here's the first paragraph:
"Internal Revenue Service Circular 230 Disclosure: As provided for in Treasury regulations advice (if any) relating to federal taxes that is contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purposes of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any plan or arrangement addressed herein."
This language prompted me to reread and reassess the holiday message. (After all, even though I no longer bill my time in six-minute increments, I'm a recovering attorney and can't help myself.) As a strict constructionist, for the most part, I'm pretty sure that the message did not -- and was not intended to -- constitute advice. The sender was not urging me to take any specific action such as to "Have A Merry Christmas." Nor was he suggesting how I might enjoy the holiday season. As I construe the text, he was simply tipping his hat in my direction as a friendly acknowledgement of the time of the year. Think "Good morning!" or "Hello!" Besides, on its face, it seemed "intended or written to be" a secular "greeting." Fortunately, the content did not appear to have anything whatsoever to do with taxes or, heaven forbid, penalties under the Internal Revenue Code.
The second paragraph was a bit more complex:
"The information contained in this e-mail message is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If the reader of this transmission is not the intended recipient or the employee or agent responsible for delivering the transmission to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or its contents is strictly prohibited. If you have received this transmission in error, please notify the e-mail sender at [attorney's name]@steptoe.com. Thank you."
Now I'm beginning to perspire a little around my collar. You see, the text of the Steptoe greeting from which I am preparing this column was actually forwarded to me by one of my work colleagues. The message was intended for him, not for me. But, in my defense, I would note that the information in no way seems "privileged or confidential," since millions of my fellow Americans will be having similar thoughts and conveying similar sentiments at about the same time. Yet, I must still acknowledge, the message was sent to my colleague and not to me, and I know how a good litigator could make me twist and turn over the futility of such a trivial distinction. (In law school we learned the marvelous phrase "a distinction without a difference." You feel that the school has earned your tuition dollars when you strut about having mastered that alliterative mouthful.)
And yet, I can't really take such a warning seriously. Since attorneys are known for being extremely cautious and risk averse (that's why they are better at slicing pies than baking them), I would also expect to have found accompanying warnings about how this message is protected by the work-product and attorney-client privileges. It surely was drafted on firm time and therefore constituted a billable hour for some client -- but it might have been pro bono. Who knows? In either event, one can never be too careful in today's world. That's what evidence classes in law school are intended to teach you.
In the event, however, that the above-referenced distinction might offer an insufficient defense, I intend to show that I actually received the same message from the same Steptoe partner on my own e-mail account -- although I seem to have permanently deleted it. This fact suggests to me a mass e-mailing, rather than a personal message. The problem remains, however, that I cannot show that I did not receive the aforementioned message in error. (Before going to law school, I did study philosophy in graduate school, where I learned how difficult it is to prove a counterfactual. I know I did well in graduate school, and I only wish I could recall the grade I got in my evidence class. There might be some relevance here.)
The last three years have not been good ones for the legal profession. Hiring is down. Law firms are shrinking, and there is the beginning of a movement -- especially among corporate clients -- to question the law firm business model. That model in the past assumed that clients would foot the bill as young associates progressed up the learning curve. Today's clients are becoming more cost-conscious and are demanding pre-negotiated fees for handling specific matters (the equivalent of HMOs in health care versus the fee-for-service model that rewards volume over value and inflates costs). In turn, some firms are now looking to the law schools and asking why the professional training remains wedded to a 19th century model based on analyzing mostly appellate court decisions rather than spending more time on clinical and other programs that prepare future lawyers for what legal practice will be really like.
As a society, we are choking on laws and regulations. Philip Howard's first best-seller (now reissued 17 years later) was The Death of Common Sense: How Law Is Suffocating America, and it made a strong case for reforming a system that is now hurting our country on several levels -- in relationships between individual citizens as well as in our overall global competitiveness.
I know that this Steptoe & Johnson attorney meant well. At the same time, the reality is that we have become an overly litigious society. Just to be sure -- and to cover myself from any future potential liability in having received the holiday message by mistake, and to do as requested by the firm -- I intend to reply to this very thoughtful lawyer in a manner which I believe will be both appropriate and effective for all parties concerned:
"Many thanks! And the Season's Best to You!"
Charles Kolb is the President of the Committee for Economic Development in Washington, D.C. He served in the first Bush White House from 1990-1992 as Deputy Assistant to the President for Domestic Policy and in the Department of Education as Deputy Undersecretary for Planning, Budget and Evaluation (1988-1990). The views in this article are solely the author's.