By B.D. Griffin
County Attorney in Montgomery County
As a very young lawyer, I read an article in the December 1985 Texas Bar Journal titled “How to Practice Law by the Rules” authored by David M. Ellis and Mark A. Shank.[1] The article did not discuss the Rules of Procedure, Rules of Evidence, Disciplinary Rules, or even the Rule Against Perpetuities. The “rules” proposed by the authors are those that “make the practice of law simple (though not, of course, easy).” Over almost 40 years, I have read the article many times, and as the County Attorney in Montgomery County, I require all assistant county attorneys joining the staff to read it too. (You can read it as a PDF below.)
To my knowledge, both Messrs. Ellis and Shank spent or have spent their entire practice in the private sector representing primarily non-governmental clients. For 28 years, my practice was similar to theirs, and for the last 12 years now, I have been with the County Attorney’s Office. For the past six years I have been the elected county attorney. While the practice of law in a government office differs significantly from practicing in the private sector, there is truth and wisdom in all the rules suggested by Ellis and Shank, and many of the rules are applicable to the practice of government law. Some of their rules are described below, along with some of my additions and corollaries that are particular to the practice of government law.
Shank and Ellis identify 11 rules. Some are not so much rules as observations. Some of the primary rules, such as My Mama’s Rule (“Why not just tell the truth?”) and Mark’s Daddy’s Rule (“The more unpleasant the task, the more immediately you need to do it”) are well-known and described in many contexts.[2] A number of their rules are specific to litigation: Allen’s Witness Rules (“Listen to the question; answer the question”); Joe Canterbury’s Observation (“There is a point in every case when a lawyer begins to believe his own bull”); and Smokey’s Rule (“Don’t lay any bull on the jury”). A couple of the rules relate primarily to litigation but are helpful in other contexts: Barefoot’s Rule (“Whenever opposing counsel asks for something, do it if you can—unless it will hurt your client”); Bill Keller’s Admonition (“You cannot stir up a bucket full of mud without getting a little on you”), and the Chief Justice Warren Burger Reply Rule (“Never assume your opposing counsel is a klutz”).[3]
Some of the new rules identified below have arisen over the years in both my private practice and government service. Jim Wesley’s Rule of Satisfaction is essentially a comment made by an attorney with whom I shared offices when in private practice. Martin’s Ali Baba Rule was triggered by a situation with dueling county department heads. Recent events (see Ben’s Disney Observation) provided impetus for additional rules and the creation of this article. Before I embark on a discussion of the “new” rules, two of the original rules, the Office Assignments Rule and My Daddy’s Telephone Rules, deserve emphasis for government lawyers.
Office Assignments Rule
The Office Assignments Rule is a guide for those who report to and receive tasks or direction from more than one person in the office. In private practice, law firms have partners, associates, and legal assistants or paralegals. Generally, the partners direct others and are not subject to direction by another. Associates are generally subject to direction by multiple partners, and legal assistants are given work by multiple partners and associates. In many government offices, there may be several levels of attorneys: the elected district attorney or county attorney or other department heads, as well as section or division chiefs, trial court chiefs, supervisors, and mentoring attorneys. As Shank and Ellis state, “Because the number of directors is almost always greater than one, directees (those to whom tasks or cases are delegated) are subject to conflicting demands.” The solution is the Office Assignments Rule: “You never have to be a victim of a conflict unless you so choose.”
The implementation of the rule is straightforward: When confronted with conflicting directives, communicate with those giving the directions. Inform the multiple task assignors of the situation and ask them to jointly determine the priority of the tasks. If the assignors cannot resolve the situation, the issue moves up the ladder. The result is that work assignments are resolved by establishing the priorities (or sometimes by shifting a task to another designee), conflicts will be avoided, and the person receiving the direction will not alienate his superiors who are assigning the tasks.
My Daddy’s Telephone Rules
This addresses telephone communications: “Answer your own phone often enough to confuse your callers, and always return calls.”
Shank and Ellis’s explanation of these rules is priceless, especially in the age when the most immediate form of communication was the telephone. By answering your own phone regularly, callers will not know whether they initially will be speaking to you or your assistant. If your assistant answers (even if such is the norm), the caller will feel certain it is because you are busy and unavailable and not because (as Shank and Ellis describe) you are a “pompous buffoon” who always has his calls screened. This effect is achieved only if you adhere to the second part of the rule: Always (promptly) return calls. Failure to return calls will tell the callers, including your clients and/or constituents, that you do not wish to communicate with them for a variety of reasons (including that you are a pompous buffoon who thinks he is more important than the caller).
Telephone communication has changed in the world in which we currently operate. For many, the primary means of communication are texts and emails and not the phone. In that regard, My Daddy’s Telephone Rules’s first half of answering the text or email yourself is presumed (even if you use AI, the response will be from your device). The second half needs modifying to conform to current practices: “Always promptly return calls, emails, and texts.”
The result of not following this modified rule is the same, except now there is a digital record of your failure to respond. For most government attorneys, this failure is also subject to public information requests.
Additional rules for government attorneys
In addition to Shank and Ellis’s rules, some additional ones specifically apply to the practice of government law. Some are unique to government practice, and some may have application to private practice (especially when dealing with government entities).
Jim Wesley’s Rule of Satisfaction. One of the finest lawyers I’ve ever known was James B. Wesley. Jim started as a certified public accountant (CPA) before obtaining his law degree and bar license. In addition to retaining his CPA license, Jim was board certified in estate planning and probate law as well as commercial real estate law and farm and ranch real estate law. Jim’s legal abilities were surpassed only by his friendship and wisdom. I had the pleasure and privilege to share offices with Jim after 11 years with a couple of different law firms. Jim was somewhat older (and clearly wiser), and he imparted to me one of the few absolute truths about the practice of law. I call it Jim Wesley’s Rule of Satisfaction: “A lawyer’s satisfaction in the practice of law is directly related to the quality of his clients.”
Of course, a “quality client” can be different for various areas of the law. In private practice, one would hope that a quality real estate client would be different from a quality criminal client (unfortunately, that is not always the case). Common characteristics of a “quality client” in private practice would entail aspects such as open communication, respect for your opinion, prompt payment, and referring you to their business associates, partners, co-conspirators, cellmates, and others needing legal services. A quality client for a government lawyer carries some of the same or similar attributes: respect for your opinion; contacting you before an issue escalates or worsens; honesty and candor; and fully disclosing all known facts of the matter.
Not all government lawyers have clients as we generally tend to think of them. For example, a district attorney represents the State but essentially acts as the community’s representative, i.e., makes the final decisions in the case and does not have to confer with a client representative on the pursuit of a criminal charge. In Montgomery County, the county attorney has no criminal jurisdiction. One of our primary responsibilities is to represent the county as an entity and all county officials in all civil proceedings as well as advise client representatives on other legal matters such as employment, contracts, procurement, economic development, open meetings, open records, and state and federal litigation. As such, we deal with a variety of clients and client representatives, including commissioners court, other elected officials, county departments, and department heads. For government lawyers (especially those with non-prosecutor clients), Jim’s Rule of Satisfaction certainly applies.
Steelers Wheel Corollary to Wesley’s Rule of Satisfaction. For government lawyers, however, there is a very important distinction, which I call the Stealers Wheel Corollary. Steelers Wheel was a rock group in the 1970s. One of its biggest hits was “Stuck in the Middle with You,” the refrain of which goes, “Clowns to the left of me / jokers to the right / here I am stuck in the middle with you.”[4] The Stealers Wheel Corollary to Jim Wesley’s Rule of Satisfaction is: “The client can fire you, but you cannot fire the client.”
Government attorneys do not get to pick our clients or their representatives. For us, the attorney-client relationship exists and will continue for so long as the client and/or you remain in office, regardless of how good or bad the client is in your perspective. Wesley’s Rule of Satisfaction and the Stealers Wheel Corollary point out the importance for a government attorney to develop and maintain good relationships with clients; otherwise, our satisfaction in practicing law will be greatly diminished and we will understand and experience Messrs. Shanks and Ellis’s David’s Corollary to My Mama’s Rule (“There are worse things than being fired”).
Ben’s Disney World Observation. When my son, Ben, was 10 years old we went to Disney World in Orlando, Florida. For a 10-year-old, it is truly a magical place and validates Disney’s slogan that Disney World is “The Happiest Place on Earth.” Ben, now 36, and I were lucky enough to attend two rounds of the Masters golf tournament at Augusta National in Georgia this past April. Tickets to the Masters are the hardest tickets to acquire in sports. As we’re both avid golfers, a trip to the Masters was a bucket list item that we were unsure would ever happen. On the second day, Ben turned to me and remarked, “Disney is wrong—this is the happiest place on earth!” His remark gave birth to Ben’s Disney World Observation: “It’s all about perspective.”
This observation applies not only to the practice of law, but also to dealing with witnesses, clients, coworkers, bosses, spouses, children, and life in general. Everyone does not have the same perspective on an issue or situation. Divergent perspectives are especially true in government where differing job responsibilities lead to differing priorities. (See Martin’s “Ali Baba” Rule, below.)
Martin’s Ali Baba Rule. Martin Simonton was my father’s law partner in the 1960s until he passed away in 1982. Martin was from another era. In their law office, he had the habit of sitting in the reception area while smoking his cigar so he could (over)hear many conversations while people were waiting to sign closing papers. On one such occasion Martin heard two dealmakers describing their latest plans and proposed deals. Apparently, some of these involved elaborate schemes potentially taking advantage of the situation or parties. Martin drew on his cigar, exhaled, and remarked, “Now I know how Ali Baba felt when he saw the 40 thieves.” The story created Martin’s Ali Baba Rule: “Know your situation and the people with whom you are dealing.”
As government lawyers, we do not get to choose which side of an issue we will be on or who we represent (see Stealers Wheel Corollary to Wesley’s Rule of Satisfaction). It is extremely important, however, to a) assess the situation and the strength of your position, and b) know the priorities of the other side. As a government lawyer, we can sometimes be caught between competing interests of our clients.
Soon after joining the county attorney’s office, I was confronted with a supplanting issue involving the county auditor and the grant department head. Each had separately asked for an opinion on the supplanting issue while presenting it in different ways. Their differing interpretations were not a result of trying to gain an advantage or attempting to sway my opinion, but rather that the respective jobs lent a different perspective to the issue (and the resolution of the issue would affect them differently). Our commissioners court has five decisionmakers, each of whom have different constituents and local issues. A county policy may affect each of the decisionmakers and their constituents differently as well as affect one or more other elected officials differently. As a result, they may each address an issue from differing perspectives. As a government attorney, it is important to recognize those instances and analyze the issues so that the respective perspectives may be adequately addressed.
Red Forman’s Rule of Cats. “That ’70s Show” was a sitcom about a group of teenage friends that aired in the late 1990s and early 2000s. When my son was in high school, “That ’70s Show” was in syndication and aired weekdays in the early evening. Ben and I would end up watching the reruns most evenings during dinner. The primary father figure was Red Forman, who had opinions on whatever was happening (and not happening). One of his most famous sayings dealt with cats: “Here’s my problem with cats. Best case scenario, you get the smartest cat in the world—and it still craps in your house.” Red Forman’s Rule of Cats in translation: “There is no such thing as the perfect scenario or perfect case. You may still have to deal with something distasteful.”
Even the best case scenario will have some detriment or issue that can cause a problem. Red Forman’s Rule of Cats reminds us to examine every situation for the problems and potential downsides.
Wile E. Coyote Rule. Wile E. Coyote is a cartoon character created by Chuck Jones and Michael Maltese. He is a coyote who constantly seeks to catch the Road Runner by using elaborate traps and machines from Acme Company, but he always fails no matter how well-planned or well-equipped. Usually his traps backfire, causing him to fall from a mountain, get crushed by a boulder, or be smacked by his own contraption—while the Road Runner says, “Beep! Beep!” and speeds away unharmed and free. Wile E. is the inspiration for the following rule: “No matter how much you plan, something unexpected (often detrimental) will happen.”
A couple of observations in light of this rule: We should 1) plan for the unexpected so that a case or matter does not fall off the cliff, and 2) be mindful that if you are setting a trap for an opponent, it may backfire on you (see also The Chief Justice Warren Burger Reply Rule).
Amy’s Corollary to Jim Wesley’s Rule of Satisfaction. Since Wesley’s Rule of Satisfaction was the first and arguably is the most important new rule for government attorneys, it is appropriate to conclude this article with Amy’s Corollary to Jim Wesley’s Rule of Satisfaction: “Practicing law with quality people creates a quality law practice.”
I have been blessed to work with great people during my entire tenure with the County Attorney’s Office. Due to page limitations, I cannot name the corollary after every marvelous person with whom I have worked, but I’ll mention one. Amy Davidson joined the office less than six months after I started, and she is my first assistant. Amy’s knowledge, expertise, and compassion make her the perfect namesake for the corollary that it is the people with whom you work that makes the difference in your practice of law.
The results
So what are the benefits for following the Rules? To quote Messrs. Shank and Ellis: When you come to the office, 1) you feel good, 2) you do not get ulcers, 3) you sleep at night, and 4) you do not burn out on the practice of law after only a few years. Adding to those results for government lawyers: 1) you contribute to the safety, security, and well-being of your community; 2) you prepare for the unexpected; 3) you work with a group of genuinely good people; and 4) you never send your client a bill. The practice of government law is dynamic and brings you into contact with diverse individuals: opposing counsel, clients, elected officials, and members of the community. Having now been in government law for 12 years, I have found that as Jim Wesley’s Rule and Amy’s Corollary emphasize: Good people make being a government attorney a satisfying and quality profession.
[1] Texas Bar Journal, December 1985, pg. 1376.
[2] Messrs. Shank and Ellis’s presentation of these Rules is very insightful and well worth reading nonetheless.
[3] As Shank and Ellis point out, “To assume that person is a klutz is to give away your advantage. More likely, your opposition is a good old guy or gal, just trying to make you think he or she is a klutz.”
[4] The reference is not intended to indicate that my clients are “clowns” or “jokers.”