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The Bad Apple
An Essay by Gary L. Wolfstone, J.D.
garywolfstone@gmail.com
 The legal profession has adopted a wonderful
colloquialism, viz. the Bad Apple, which singles out any attorney
who violates the ethical rules with reckless abandon. This term is roughly the equivalent of
using a pejorative racist label to refer to a person of color. It is a code word or short hand
designation which invokes the image of a lawyer who is thoroughly dishonest and who is guilty of
consistently bad behavior in the practice of law. The Bad Apple is a value laden term which may sound
innocuous but which is highly corrosive when fastened upon a sister lawyer. The Bad
Apple is described as a lawyer with a well deserved bad reputation. Once identified, the Bad
Apple finds herself living a life of tribal banishment. Of course, the ultimate
tribal banishment [maastakarkotus] is disbarment, predicated on a finding by the bar
association of moral turpitude. However, slanderous gossip and sub rosa condemnation by
gossip mongers is actually more damaging. The gossip mongers are more destructive
than the decision of a tribunal expressed on pressed parchment. The cluck of a thick tongue
in a lowered voice can be fatal. To say that she is a Bad Apple is to say
that she weaves a tangled web of deceit and that she should never be trusted! To
say that she is a Bad Apple requires no proof! To say that she
is a Bad Apple requires no confrontation! To say that she is a Bad
Apple is the first of a thousand cuts!
When you condemn a sister lawyer as a
Bad Apple you are indulging in the ultimate act of Schadenfreude. It is the equivalent of
taking a snapshot of a human being and saying "This snapshot defines this person's life from
the beginning to the end." In journalism, we call this a "defining moment." In legal
circles, we call it outing the Bad Apple. In law and in life, we call it a "trial in
absentia." In the feminist movement, it is another case of "She just doesn't get it!"
And we know that the Bad Apple deserves the
appelation of Bad Apple because "Jane said so." And if you are not satisfied with Jane's
condemnation, just ask Martha or Mildred. Equally telling just ask Alice or Betty or
Charleen or Donna or Ellen. Et ainsi de suite, Et ainsi de suite!
The Bad Apple is described as a flat character by the self righteous people.
In "Structure and Content," An Introduction to Literary Criticism. Edited by Marlies K. Danziger and W. Stacy Johnson.
Boston: D.C. Heath and Company, 1961, E.M. Forster describes purely flat characters as "constructed around a single idea or quality."
(P. 192) He goes on to say that a single sentence or formula will describe the flat character, e.g., She is a Bad Apple.
Flat characters are easily recognized in literature by the reader's "emotional eye" (P. 192-193). E.M. Forster explains that there are
varying degrees of flatness in characters. Once a literary character gains enough aspects about her to contain the "incalculability of life," she is a round character.
A round character is capable of surprising and convincing the reader. (P. 192,198) Once a lawyer is branded as Bad Apple, she is denied the
ability ~ at least in the minds of fellow lawyers ~ to surprise and convince. Her humanity has been stripped away by the self-righteous people.
She is consigned to the scrap heap of history within her legal community.
Only the self-righteous people are capable of rotundity.
A hypothetical case illustrates the seriousness of bar discipline.
Posit a case where our hypothetical lawyer is ordered to receive a reprimand (which is published)
by order of her disciplinary board. In this hypothetical, the discipline is based on conduct in two
cases involving her failure to act with reasonable diligence, failure to expedite litigation, and violation
of court orders with respect to discovery and case scheduling deadlines. The Reprimand
is well deserved, in my opinion, and is particularly important because these are matters
that lawyers deal with on a daily basis. Our hypothetical lawyer learns that there are serious consequences to her misconduct,
and this hypothetical lawyer has, in my opinion, diminished herself. The hypothetical lawyer has also been
downgraded by a private website which purports to give lawyers a rating or score. The hypothetical lawyer now finds herself on the slippery slope of reputational
damage. The moving pen has writ, and having writ moves on.
In the words of the poet, not all your piety nor wit can lure it back to cancel half a line of it,
nor all your tears wash out a single word of it! This hypothetical lawyer has no one to blame but herself.
She has shown herself in an unflattering light, and henceforth, she should be more concerned
about her own reputation and less concerned about condemning other lawyers.
I shall not characterize this lawyer as a
Bad Apple, however, the hypothetical invites several questions: Can the hypothetical
lawyer redeem herself? How can she redeem herself? Should she be required by her licensing
authority to take classes in ethical conduct? Should her Reprimand be followed by a
probationary time period during which she is required to seek counselling? Was her bar
association too gentle in simply imposing a Reprimand without placing limitations or
reporting requirements on her law practice? This essay only asks these questions ~ the
reader is left to offer answers.
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