On the Death of a Very Good Lawyer I Never Met
I’ve been thinking on and off about Mark Levy since I read he shot himself. I’m writing this to try and figure out why. This was in April 2009, a few weeks before I finished law school.
Things were bad. People got laid off. Escorted each other to the iceberg. Belt-tightening. Hard decisions. Even in good times, lawyers catastrophize and prepare for bad things. My feeling at the time was that the boomers had sucked the country’s carcass dry ahead of schedule and were pulling up the economic drawbridges. General panic.
I was doing a little panicking myself. I had nearly $200,000 in student loans about to come due. No savings. The fancy job I’d expected to start in the fall had been postponed about 16 months and I figured it would evaporate. The university health plan gave me three free sessions with a therapist to help adjust but I only needed one (her office actually did smell like patchouli). I was the educational equivalent of a sub-prime borrower but instead of a McMansion, I had a bunch of degrees no one wanted to repo.
To be clear, I didn’t know him. It was more like, wow, if this guy decides to off himself, what are the rest of us supposed to do.
Levy was a Washington lawyer who until that point apparently had a pretty awesome run. Yale College, Yale Law School. (I know all this from Wikipedia, his former firm bio, captured and posted by Jonathan Turley, and online reporting like Richard Schmitt’s long thinky article in the ABA Journal.) Solicitor General’s office, several top law firms, Deputy Attorney General during the Clinton administration, then back to private practice. Appeared before the Supreme Court more than a dozen times, involved in over 100 Supreme Court cases one way or another. He was a boomer. But to my eye his bio has an early version of tick-every-box accolade-to-accolade striving that went mainstream more recently. I don’t doubt he endured personal hardship, made sacrifices, and was an all-around stand-up guy. But from the outside his professional bio looks like a string of cultural capital winning, law career porn.
Nevertheless, he went in to his office around 5:30 in the morning and shot himself in the head with a thirty-eight. Well, who knows why. Our superficial best guess is that when he found out he was being some euphemism for laid off, he didn’t take it well. No one builds a career like that without a lot of smarts and willpower and other strong stuff. But whatever he had done, it maybe hadn’t equipped him for the sense of failure and shame that a person used to going from peak to peak must feel when the bottom drops out. He was in the stratosphere of a status-driven community. And then he suddenly was about to be not. The impending stigma was too much to contemplate.
Many lawyers would give a lot to appear in front of the Supreme Court. When you do, there’s that photo you take on the court steps looking determined with a briefcase. He did it sixteen times. I guess he spent hundreds of hours of his life on each of those cases — reading case law, mastering the record, rehearsing pithy rejoinders that might stick with the court or media. Choosing to do it in his office is apt, a little macabre, maybe a fuck you to his former partners. Maybe after a life spent at the office, it just seemed like the only right place for the last scene.
But that’s not what stuck with me. What got me was the housekeeping.
In the wake of Levy’s death, lawyers briefly fired up the traditional intra-profession convo — why are we sadder, drunker, fatter, divorceder, and more likely to kill selves than most other professions? Stress? The hint that lawyering is the rare profession where pessimism might actually make you better at your job? Martin Seligman is happily on the case. His diagnoses seems apt, but his recommendations are laughable. I don’t think I’ve met any practicing lawyer who expects any of this to change. But the macho pride in worry and work are themselves part of being a lawyer. I first heard these statistics in my professional responsibility class in law school. And then again a few months later during a mandatory assembly given by the New York Bar a few days before swearing in. We were told to stay vigilant for signs in ourselves of substance abuse and suicide (the main ones — cutting corners and cocaine), given a hotline number, and then cut loose with a jaunty, ok counselors, see you in Court. Our version of clear eyes, full hearts, can’t lose.
When people talked about Levy’s death some brought up the old “business vs. profession” decline narrative. In this telling, Levy was in the last wave of old school gentlemen who practiced honorably up to the exacting standards of a profession fading into the noble mists of history. Whereas current practice was taking a nose dive into the pragmatic cesspool of business development and bottom lines. Personally, I have no way of knowing if this is accurate, and have little sympathy for this kind of plaintive nostalgia. In my lifetime, law has always been a business. No one I know was ever given the option of joining an honorable profession. And anyway, the only people who can sit through the necessary $200,000 legal education without sullying themselves with thoughts of business are people who already have the money.
Anyway, and maybe this makes me a bad person, the man wasn’t a public interest lawyer at that point. He represented large companies and the non-profit clients were trade associations like the Chamber of Commerce. Why should hustling for clients have been beneath him? Levy’s client in the last Supreme Court case he won was “Plan Administrator for DuPont Savings and Investment Plan.” He represented private clients who paid him money to win cases like this one, which was about whether a widow of a DuPont employee had been entitled to a pension payout. There’s plenty of honor in that kind of top-shelf commercial lawyering, but this was not a civil rights case. So I must admit the nostalgia for the days when the profession was more than a business leaves me cold. It’s understandable that gentlemen miss the gentlemen’s club. But, that’s what happens when you open it to lots of other people. It gets competitive and maybe a little grubbier. But more open (it’s all relative, not much more). And anyway, why should lawyers (or doctors or professors) be above the market forces squeezing everyone else. It should help us relate!
But yes — the profession. Legal excellence for its own sake, just like Oscar Wilde might have put it. I have met and worked with plenty of lawyers who subscribe to the excellence credo. Do great work and be a platonically excellent lawyer, and all else will follow. Not surprisingly, some of them are really awesomely proficient lawyers. But I have never understood this divorce of quality of practice from ends achieved. I get it, but I don’t get it. At Tosca, a restaurant in San Francisco, there’s a sign above the bar that says, “Whatever you are, be a good one.” Really, whatever? Good lawyer, good cabbie. Good pundit, good pollster, good executioner. And, I can’t help myself, good brownshirt? This is very different than, whatever you are, do some good as one. For a lot of business lawyers I have met, excellence is everything. Pure platonism. If you write perfect briefs, make all the right arguments in the right order, in the right tone, you will do as well as could be possible for your client. And this excellence of quality stands in for other, more flat-footed ideas of what is good — naively aiming for a result that will do some maybe simplistic version of good in the world. Bill Readings saw this happening at universities in the 90s, and complained about it (persuaded me), in The University in Ruins.
I’ve exchanged YouTube links with friends of whatever form of human achievement is fashionable at the time, embodiments of the idea that you should lawyer the way this person does whatever it is they do (grill squid, beat Donkey Kong, appraise a storage locker, glide down a cliff in a squirrel suit). And learn by metaphor what it might feel like to excellently draft objections, cite check a brief, or write a mock outraged letter telling someone no, a thousand times no, we never had those documents. Of course, I shake my head sometimes about this cult of excellence and am also a member. Staying up late looking for a better case to cite or shaving excess verbiage to make a brief more austerely perfect, and then realizing it’s morning is an itch that like a lot of lawyers I sometimes can’t not scratch.
Excellence fetishism is understandable because many commercial cases are basically morally neutral in the grand scheme. Two (or more) companies (or people) fight over money and the case decides who gets what. It’s pretty damn important if you’re one of them. And if you represent one of them, getting the most awesome result imaginable is serious ethical business. But often nothing more broadly good really happens at the end of the day. At best, you win. Maybe some doctrinal point of broader applicability gets sharpened. The case leaves a legacy of a new or tweaked rule of decision (“There exception to the exception of assignor estoppel has a new exception” or “Metadata taken from someone’s phone without their permission is not admissible unless it is”). Sometimes the equities really are clear — a bully tries to squash a small fry, someone tried to get away with way more than they should have and got caught. But the end result does not generally liberate anyone. It does not create a new reality with new or richer rights for the populace. So, we cling to excellence at what we do. Excellence of conception, excellence of planning, excellence of execution. I suppose at a broader level, it is maybe not morally neutral for the upper middle finest minds to spend their time fighting over chancery doctrine as opposed to other things (though having a functional, predictable not corrupt business environment is a pretty good thing that may be less visible than it should be). But that’s a bigger frame of resource allocation and I’m not sure how we would pay a nation of civil rights warriors, or if we’d wind up freer on average.
Anyway, this Excellence. Mark Levy apparently embodied it, based on comments from colleagues in his post-mortem write ups. They also say he was an unusually warm and generous guy. And I have no reason to doubt it. I’m not much of a physiognomist, but there is one picture of him that I particularly like, looking hale, hearty and unhip in some tan khakis and a Patagonia jacket, holding a clipboard. He looks like someone who might play a principled national security adviser on 24.
Anyway, on to the housekeeping. Several reporters note that Levy left his family a suicide note “saying he loved his family and instructing his wife on how to handle finances and other matters.” He also told them to go ahead with a planned vacation to Italy in June.
Also reprinted in a few places is an excerpt of Levy’s out-of-office reply message:
“As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. … If it concerns a personal matter, please contact my wife. … Thanks.”
I don’t know what to make of the ellipses. He doesn’t seem like an ellipses kind of guy, so maybe some parts have been cut. But, as it is, the email is lean and symmetrical and to me screams lawyer.
It anticipates the two things you might be writing about — professional or personal — and smoothly handles each. The two sentences are parallel with commas in the same place. “Thanks” which comes at the end of so many emails where no thanks is needed or deserved. But, a modicum of graciousness is given. Gratitude it not scarce, so it’s easy to give away. You would not catch lawyers saying “sorry” where no blame is deserved. But thanks are ubiquitous.
And of course, “I can no longer be reached.” The passage voice. The euphemism. For a lawyer, being responsive and available are what separate you from competitors and earn loyalty from clients. Being a person who people want to reach is the state of existing as a lawyer and being worthwhile, desirable. If people can’t reach you, that is not so different than not being there. If you are not there, then you may as well not be there. I have read the text of this message probably hundreds of times and it still hits me — measured, chilly, unbearably grave in its nonchalance.
I sat down to write this to figure out how I felt about being a lawyer, about the core of fear that seems to motivate me and a lot of my most accomplished colleagues. About how to deal with stigma of leaving a job without having another one lined up. And because this whole time I have not been able to shake Mark Levy. I wonder if there’s a world in which things could have ended differently for him. The methodical lawyerliness with which he planned his end. The simultaneous short-sightedness of his decision and clear-eyed grasp he had of what it meant for someone who cared as much as he must have about what people think, to be reduced from excellence to something less. That on his way out, he embodied some of the best and worst things about the profession — the pragmatic foresight, the catastrophic imagination, the follow through, the perfectionism, the service ethos, the crisp delivery.