August 19, 2021 Advance Sheet
It’s Not Complicated: Plain Speaking about Professional Ethics
Any course of action that changes or rearranges this hierarchy—court system, client interest, self-interest—violates a lawyer’s professional responsibilities.
Robert E. Shapiro
Like jumbo shrimp or an objective opinion, the term “lawyers’ ethics” has frequently been treated as some kind of risible oxymoron. Where the general public is concerned, it is not particularly difficult to see why. For some lawyerly activity—indeed, the principal part for a litigator—the talent often inheres in making the apparently weaker argument the stronger, prevailing in favor of some seemingly less than completely deserving party or position over one perhaps more apparently entitled. This is activity the public can be forgiven for thinking questionable at best. It raises suspicions about honesty and integrity, not to mention justice. How did this person win—an accused walk, say, or a undeserving plaintiff prevail—if not by fraud or other wrongdoing? How do we know the result is one of genuine fairness, and not procured by skillful manipulation, a lawyer’s dark arts at work in the face of all that is right and true?
To persuade casual observers of a judgment’s legitimacy, regardless of appearances, one might need to explain the larger context of our system of justice. This requires more than merely noting that everyone is entitled to a proper defense, a rather weak reed to rely on when apparent evil is in play. To improve the reputation of lawyers, or at least get them off the hook, there would have to be a broader conversation about how the lawyer’s art of persuasion fits into the adversary system. This includes how our courts set out to find the truth through a clash of viewpoints within the crucible of the law court, and how a lawyer’s skills operate within the context of concepts like the presumption of innocence, burdens of proof, and rules of evidence to keep the process not just from running off the rails but, for the most part, in line with achieving a fair result.
That conversation was always beyond what was achievable on a mass basis and definitely not doable in today’s Twitter-induced information coma. Adding to the problem is that lawyers these days disproportionately occupy certain very public roles in our society, often, as lawyers, becoming celebrities all their own for little more than courtroom success. When high-profile lawyers get into trouble, or cause it, they cast the profession in a negative light in a very public way. It’s an easy matter to blame it on their being lawyers. Is there any truth to the charge? Is there some reason to believe that lawyers, too, have lost the sense of what they are doing? Have they come to see themselves as the public often does, as skilled manipulators or unthinking devotees of the people or causes they represent? Do they, as a group, care little for the truth and use rhetoric to achieve good results, however questionable as a matter of fairness, celebrating their achievements above their commitment to justice?
Heaven forfend! It would be a sad day if lawyers came to understand themselves as the public does. But where and how do lawyers learn otherwise? What guidance do lawyers get these days in professional ethics, to save themselves from chuckling too over the possibility that it’s a contradiction in terms? Legal education and the actual practice of law have hardly distinguished themselves in this respect. The former seldom includes rigorous analysis and careful study of ethical matters, professional responsibility courses being the poor stepchild of the law school curriculum. Prior education in morals having been assumed, a law student’s degree program includes only one or two classes on lawyer ethics, where law schools believe themselves acquitted of their responsibilities to the profession by challenging students with a series of vignettes, which may or may not reflect reality, while ignoring their relationship to the larger whole presented by the study and practice of the law generally.
Nor do lawyers get much training in these broader principles in their practices, which seem to leave to the chance of mentor or circumstance any guidance in what’s necessary and expected. Professional responsibility CLE courses focus, however laudably, on the pressing issues of equality and inclusion, which seldom seem to encourage the practicing litigator or deal lawyer to study the underlying moral principles from which these ideas derive. In times of crises, including those of recent times, vignettes, hit-or-miss on-the-job training, and online courses on bias and diversity seem unlikely to supply what’s needed.
That’s not to say they don’t help at all. Ethical dilemmas come in all shapes and sizes, and practice in fielding the questions they present is useful. There’s a kind of common-law character to this, deriving fundamental principles from the practical circumstances. Still, the absence of context makes it all unnecessarily difficult. This is true even when reviewing the principles found in the Rules of Professional Conduct, which few lawyers consult, let alone undertake the tiresome process of reading end to end. But there’s a remedy. It’s not complicated, as the advertising jingle goes. At least it’s not that complicated, particularly if lawyers just stop for a second and pay attention to what they say about themselves.
Starting with the Basics
Start simple. A lawyer, as is commonly said, is a professional. OK, so what’s that? Perhaps it’s easier first to say what it’s not. These days there is much talk about lawyering being a business, and a heavy focus is placed on developing clients and billing and collecting successfully, while initiating and maintaining a strong continuing customer-style relationship with the client. This is all well and good, and worthy of learning, but it is unrelated to a lawyer as a professional. Business is a moneymaking activity, first and last. The whole point of a business is to accumulate wealth for oneself. It is a sharply selfish endeavor. Lawyering? Not so much. Sure, lawyers need, like, and want to get paid, earn a living, and it’s good to learn the skills that allow one to do so. But a lawyer’s claim to be a professional depends on other matters entirely.
As a professional, a lawyer follows certain rules that advance higher social goals and depreciate individual ambition or self-aggrandizement, especially moneymaking. Lawyers work for others and serve those others, not their own interests. It’s a service business, lawyers are accustomed to say, and money is paid for doing that service well. But that’s the desirable consequence, not to be misunderstood as the primary objective. As its name implies, a professional is one who professes allegiance to principles set higher than one’s own self-interest, rules of governance beyond oneself. So a doctor takes (“professes”) the Hippocratic oath to put the needs of her patient first, before her own interests. A lawyer, too, must put other interests before his own.
Perhaps lawyers can be forgiven for losing an understanding of what a “professional” is. The word has suffered quite a bit of misuse recently. Like the word “awesome,” once reserved for matters that inspired awe but now applied to everything from candy bars to the latest TV show, the word “professional” has been twisted and applied to lend greater dignity and importance to activities of all kinds. Many of these are not professional at all but purely moneymaking in character. The word has meaning when applied to doctors and lawyers, teachers and perhaps a few others, but it loses all sense when it is applied to every stock and trade.
The word may have lost its meaning, but the principle remains. Lawyers live by an elevated set of rules. Where are these found and what do they comprise? Again, the answer is right before our eyes.
Consider the name: law-yer. Lawyering is dedicating oneself to, and professing faith in undertaking a commitment to, the law. In the United States, this means the Constitution and all laws arising under it. Abraham Lincoln was famous for saying that Americans should make a political religion of the laws. If there’s any merit to this approach, lawyers should be first in line at the altar, even like the priests themselves, knowing the rituals of the law and abiding by them. The law as a profession means professing one’s commitment to uphold the Constitution and the laws of the United States, just as a lawyer’s oath says. Conversely, anything intending to or having the clear effect of undermining the U.S. Constitution and the law is an ethical violation.
What about an unjust law? Like any other citizen, lawyers are free to criticize and challenge intelligently, and seek a change in, the law. But a lawyer, one who professes the law and is committed to it, is bound to do so lawfully, at least insofar as she is a lawyer. In the first instance, a lawyer should do what lawyers do best, which is make the case, literally, for change. Respect for the law requires no less, trying lawfully to make the law conform more faithfully to justice. And always with the knowledge our adversary system of justice teaches that no one has a monopoly on knowing what’s right and fair, and that you and those whom you represent may not have the only, or even the best, point of view.
Civil disobedience? Of course, if you believe it is warranted, but always with respect for the law as law. This is civil disobedience in the traditional sense, where one agrees to bear the consequences imposed by the law, and the profession of law, as a means to demonstrate by its very enforcement the law’s injustice. It is not a wholesale disregard of the law with an expectation of immunity based on one’s claimed higher purpose or belief, as is so frequently the case these days.
For these reasons, lawyers are ordinarily expected to pursue change with some degree of moderation, proceed with caution, nicely supplied by adhering to legal procedure, the goal of which is to allow for managing controversy in a controlled way. Critical here is the famous aphorism that a lawyer is an “officer of the court,” which is more frequently uttered than understood. Lawyers must devote themselves to the smooth functioning of the legal system, enforcing or carrying out (as an officer should) the process the law provides. We have a system in which the truth is gleaned by each party trying its best to present the facts in a way most favorable to its perspective and interest. But facts are facts. The process requires both that the lawyers not depart from the facts, however much they want to “spin” them, and that they maintain respect for their opposite number and the process along the way. We have an adversary system, not an anarchic one. There may be no rules in a knife fight, but in court the rules and the system make a difference.
Many things flow from this. There’s a tendency, for example, to view respect for one’s adversary as a matter of good manners. It’s not. Lawyers and law firms that act too aggressively, take advantage of an opposing advocate’s workload or limited resources or even vacation time, are not mere jerks. They are unethical lawyers, as measured by the professional rules. The primary goal is to make the adversary system work. An attitude that your opposite number is someone to take advantage of, or irrational, foolish, or malicious, is not just imprudent; it’s unethical. We all fall into a careless approach to opposing lawyers. But respect for one’s adversary, acknowledging that the adversary system expects and depends on sharply opposing points of view to be presented in a fair manner, is critical to the system we have signed on to.
The Hierarchy of Interests
A lawyer’s responsibility as an officer of the court does not dissipate when he walks out of court, any more than a doctor’s responsibility disappears when she walks out of a hospital or examining room. Perhaps we don’t fully condemn a doctor who turns aside from a medical emergency that unfolds before her eyes on the drive home. But we don’t think consulting her own convenience instead as very much consistent with her being a doctor, as measured by her oath. And we surely would view her as violating that oath if she stopped her car to use her skill to make an injured person worse. A lawyer, too, may have the right not to call out every improper application of the law. But he has no claims as a lawyer to use his skills to denigrate or undermine the legal system or interfere with those immediately subject to it.
For this very reason, the Rules of Professional Conduct make clear that a lawyer does not check his lawyer’s wig or cloak at the courtroom door. It is not any more permissible to attack the legal system, or what allows it to function properly, outside of court than it is to disrupt what goes on inside. Legal pleadings must conform to certain requirements, including truth and fair advocacy, because the adversary system demands it. Comments made outside of court about those same pleadings or the facts of the case must conform to those same standards. Recent cases of lawyers who took to the courthouse steps or the airwaves to mislead the public about what was said in the courtroom or the facts generally necessarily undermine public respect and understanding of court process, a clear violation of lawyers’ duties as officers of the court.
Yes, lawyers represent and are entitled to make the case zealously for their clients. But never forget the qualifier in the rules. A lawyer is to represent her client zealously “within the bounds of the law.” The law and the legal system that implements it come first, setting the boundaries of proper advocacy. Again, these limits apply as much outside of court as in it. Lawyers should always follow this hard-and-fast rule: law and legal system first, client second. One who professes the law and is an officer of the court can do nothing else. Sure, make your case, in court or out, for a good-faith extension of law. But don’t think for a moment that you are meeting your professional responsibilities by going beyond this limit once out of the earshot of the judge.
An old joke has it that practicing law would be great were it not for the clients. Um, no. They are critical not just to good lawyering but to ethical lawyering too. To begin with, every lawyer has a duty to advise clients about what the legal system requires: truthfulness, moderation, fair and calm consideration. If you have a client that enlists you to put one over on the judge or the other side or the public, you need to explain what the adversary system is all about. Representation does not call for, and is distinct from, blind endorsement of a client’s interest. You must always maintain some distance on your client’s point of view. The good news is that this also makes for more effective lawyering as well.
The Client’s Interests
The other extreme, too, is problematic: acting independently of your client’s needs and wants, not to mention your client’s resources. Cases need to be tailored to the client’s overall interest, not your own, whether intellectual or financial. It’s a mystery how young lawyers assigned to mammoth cases involving thousands of hours of work without so much as exchanging two words with a client will ever learn to understand, assess, and apply a client’s interest instead of indulging their own thoughts on what makes for a good presentation or defense. “Zealously” does not mean “thoughtlessly,” with no concern about what is truly in the client’s interest from the broadest standpoint. This is true even where the client is most adamant. Telling a client something other than what the client wants to hear is one of the most unenviable tasks a lawyer has to undertake. But clearly, if gently, telling the client what the legal system demands (and why) and giving the client a fair understanding of the case and its likelihood of success are not just parts of a lawyer’s prudence. It is the lawyer’s professional responsibility.
Only after providing for and protecting the needs and requirements of the court system, and those of the client within it, may you start thinking of your own interest. Any course of action that changes or rearranges this hierarchy—court system, client interest, self-interest—violates a lawyer’s professional responsibilities. It’s not complicated, although it may at times be hard to follow. Too often, it’s not followed, but the legal system and the bar would be well served by enforcing these rules, insisting that lawyers must mean what they say about themselves. A better appreciation and adherence to these general principles may at least help to salvage the reputation of the profession itself amidst an ever-skeptical public.