LEGAL ETHICS
"If I have to sacrifice my integrity for politics, I'd have just stayed a lawyer" (Abe Lincoln)

    This lecture examines the role of lawyers in society, particularly as lawyers pursue law.  Justice is a goal that doesn't always conform to the pursuit of law.  No legal system can nor has ever been created that is perfect enough to achieve justice, or more specifically, the ultimate ideal of moral justice guided by a sound ethical system.  The best that can be done is to have a legal system that approximates justice by having structures or processes which uphold values of fairness, equity, and equality.  In the end, whatever kind of ideals or values are maintained by a legal system are going to be synonymous with law, not justice.  Law trumps justice, every time.

    The ethics of those associated with the legal system have always been suspect.  The ability of lawyers to argue either side of an issue raises suspicion, and no one really needs a lawyer unless they are in trouble.  Lawyers have always been associated with trouble, and the sociology of trouble (Emerson & Messinger 1977) tells us that trouble is frequently the root of deviance, discord, and dismay.  Durkheim (1897), the founder of sociology, once said trouble has the same meaning as crime.  Being in trouble, or being around trouble, also plays a part in many criminological theories of crime.  Now, all of this is not to say that lawyers are the same as criminals because they are always around trouble, but it is saying that the very nature of legal work may contain built-in "counterproductive incentives" (to use Rhode's 2003 phrase) that work against the practice of ethical behavior.  A more charitable way of saying this is that the practice of lawyering frequently involves ethical dilemmas where there is conflict between obligations to one client and to the legal system and society (Zitrin & Langford 2000).  Luban (1989) presents this as a conflict between common morality and a lawyer's "role morality" under the adversary system and claims that this conflict constitutes a social and political problem for society as a whole.

PUBLIC OPINION, POLITICS, AND PERCEPTION

    It has been reported by Pollock (2004) and others that, according to Gallup and similar polls, 82% of Americans believe that lawyers have low ethics or "unethical ethics."  Other sources can be found (Roth & Roth 1989) where this percentage is as high as 92%.  In fact, Glendon (1994) reports that about 75% of lawyers would choose another career if they could, and about the same percentage would not want their children to become lawyers, and although there's some controversy over this with criminal defense attorneys (Kittel 1990), the pattern is likely the same.  Given that there has always been high levels of antipathy toward lawyers, the American Bar Association (ABA) was created, in part, during 1878, to counteract this public opinion problem.  In a moment, we'll examine the effectiveness of this ABA effort, but for now, let's look at how deep is the public antipathy toward lawyers (antipathy is a word meaning deep-seated aversion or dislike).

    Much of public antipathy is directed toward tort law, not criminal law.  The "tort reform" movement (Wills 1990) has been underway in America for a long time now, but the corollary "litigation explosion" movement (Olson 2003) has just started.  Both movements are far from being politically "conservative" issues since there is plenty of left-wing group support.  However, the ABA (Daniels & Martin 1995) seems to have adopted a "bunker mentality" which claims there is no problem, other than the manufactured one which they claim is part of a political agenda based upon exploitation of fears fueled and funded by a coalition of insurance interests, big business and the republican right.  Let's look at what the debate is all about:

    There have been several "notorious" cases pointed to by those calling for tort reform.  Most of these cases can be classified as "frivolous lawsuits" (where parties sue over trivial incidents or injuries that are really their own fault) or "outrageous awards" (where the punitive damages are just out of line or multiplied a thousand fold).  Here's a sampling of some notorious cases:

• an elderly woman who was severely burned trying to open a cup of McDonald's coffee while holding it between her legs sued McDonald's and won millions of dollars.

• a guy driving a Pinto who hit a horse that had suddenly bolted onto the road, and the horse flew into the air and landed on the roof of the car, crushing it and killing the guy's wife. He sued Ford and won millions of dollars.

• a self-proclaimed psychic went in for radiation treatment for a medical condition but the technician left the machine on too long, and she claimed it robbed her of her psychic abilities and won millions of dollars. 

    The anti-litigation explosion movement (Olson 2003) goes a step further, and says that "big-ticket" litigation and "jackpot justice" has become a way of life in America.  The civil law is seen as out-of-control and subverting democracy since lawyers are now apparently using the courts to obtain reforms which have traditionally been the province of federal or state legislatures.  Use of judicial process to subvert the legislative process is the primary reason why lawyering is sometimes seen as the "Fourth Branch of Government," another reason being that something like 60% of government officials (Presidents, Congressmen, Mayors) have been ex-lawyers.   Lawyers, Olson (2003) claims, distort public opinion, buy influence with judges through campaign contributions, introduce junk science into evidence and manipulate juries through unworthy courtroom theatrics. Class-action lawyers, Olson (2003) contends, receive stupendous fees for themselves, produce minuscule payments to their clients, and drive entire segments of business into bankruptcy. Clever lawyers have realized that it is best to try their class action suits in friendly, ill-informed jurisdictions, such as the rural south, in a area stretching from North Carolina to Florida and Texas called "The Jackpot Belt."  In such areas, juries have been especially generous in punitive damage awards. 

    In the practice of criminal law, most people know that lawyers request (and get) continuances for the sole purpose of trying to collect a fee (that might not be forthcoming if the case is concluded too shortly).  Most people also know that many defense attorneys are ex-prosecutors, and this must have shaped their perceptions of clients and what they consider fair punishment.  It is also important to maintain the goodwill of all parties in the attorney's courtroom workgroup.  In many ways, the most serious problem in all of legal ethics is the courtroom workgroup problem.  Look at how Dershowitz (1982) describes it, as characterized below:

• Everyone in the courtroom workgroup knows almost all defendants are guilty

• It is easier to convict the guilty by violating the Constitution than by complying with it

• Everyone knows that almost all police have lied about whether they violated the Constitution

• Most prosecutors implicitly encourage police officers to lie

• Almost all judges are aware of this lying and pretend not to know about it

• Most judges disbelieve defendants who say their Constitutional rights were violated

• No one in the workgroup would knowingly convict a person they believed to be innocent

• The above rule doesn't apply to organized crime, drug dealers, or career criminals

• Nobody really wants justice   

THE LEGAL PROFESSIONAL APPROACH TO ETHICS

    Lawyers rely upon a set of professional ethical standards that are integral to their definition of a profession.  Some would say they have done an excellent job in this regard, particularly in that part of the approach to professional ethics which holds that it is important to convince the public that the profession is self-regulating and that the ethical standards are so high that they are "unachievable" by most people.  The reality may be that this is all elitist propaganda reinforced by the fact that the profession enjoys an economic monopoly the likes of which a "robber baron" railroad monopolist could only envy.  The state bar associations control entry into the profession, not only by testing knowledge of law, but by doing background checks.  This keeps most of the unscrupulous people out, but does nothing to monitor the moral standing of those who have gotten in.  Most people in criminal justice are willing to give legal professionalism the benefit of the doubt, and analyze it on its own merits.  The following, then, is such an analysis.

    Formal ethical standards for lawyers and judges were first created by the Alabama Bar Association in 1887, and were simply called the "Model Code."  In 1908, the American Bar Association took the Alabama Model Code as a national model, and started calling it the "Model Code of Professional Responsibility."  In 1969, the ABA switched its endorsement from the Model Code to a self-written document called the "Model Rules of Professional Responsibility," and the old Model Code became known as the Canons of Professional Ethics which serve as a preamble to the Model Rules.   The Model Rules of Professional Responsibility have become the basis for ongoing training, or continuing legal education, and the Model Rules of Professional Conduct are a separate thing designed to discipline attorney misconduct.  The Canons are listed below, with selective discussion further on:

      Canons 1, 2, 3, and 8 are fairly straightforward, and are the kinds of things one would ordinarily expect from any professional association; i.e., to preserve the profession's integrity, advance its interests, keep the "interlopers" out, and help improve or reform the "system" for doing business.  However, Canons 4-7 & 9 present some real material for ethical analysis. 

    Canon 4: Confidentiality -- In many ways, confidentiality goes to the heart of legal ethics.  It is enshrined in the sacrosanct, privileged relationship between attorney & client, and keeping one's confidences or secrets (and still being effectives) is probably the hardest part of being a defense attorney.  After all, how effectively can one defend someone they know is guilty of this, and other crimes?  It seems loyalty is the virtue called for in a confidential relationship of this sort.  The theory behind the notion of confidentiality is a practical one, and it goes like this:  confidentiality is said to be inherent in a fiduciary relationship, which means that because the client pays their attorney in money, the two of them constitute a single interest of one, as a legal entity; so, if the attorney breaks a confidence, it's the same as self-incrimination by the client.  This is not true confidentiality by any means.  It's only a fiduciary trust relationship.  It doesn't meet any of the standards for confidentiality that have been built up over time, like the Nuremberg Code or HEW Guidelines.  At best, it's a short-term confidentiality arrangement, and nothing in it protects the client in the long-term or respects their dignity as true confidentiality would.

    Confidentiality is also involved with conflicts of interest.  There are two ways that conflicts of interest usually arise.  The first way is when the attorney (or the attorney's law firm) is representing co-defendants in the same crime.  What typically happens is that a plea-agreement may be reached with one co-defendant and a different plea-agreement (or none at all) is reached with the other co-defendant.  If a jury is involved, the jury may or may not know about the plea agreement, but the main problem is that an attorney's confidentiality to any one client is jeopardized in any co-defendant case.  Disciplinary rules prohibit the representation of two clients who may have opposing interests, but it goes on all the time in places like Public Defender offices where the same firm represents two or more co-defendants, and one co-defendant (usually the snitch) gets the better deal.  The second way illustrates the problem of short-term confidentiality, and occurs when the attorney is retained to handle the client's interests in publishing their story after the case is over.  This typically occurs with "celebrity" cases where all the parties seem to want to write a book, or get in on the rights to a movie deal.  The following excerpt deals with this problem:

    Canon 5: Independent Judgment -- In the zero-sum game that lawyers play, there are only winners and losers, so how is one supposed to be "independent" or fair-minded when there are obvious harms imparted upon the losers?  People who "lose" at law suffer all sorts of harms, financially and emotionally.  To remain "independent," the attorney must either refuse to take a part in the case, or "cherry-pick" their cases so that some kind of rationalization can be made about the "deep pockets" of the loser or the loser's ability to absorb the harm.  Alternatively, the attorney can adopt a "let the chips fall where they may" attitude, but this treads dangerously close to infringing upon other Canons, like assistance in improving the legal system.  What seems to be a lawyer's only ethical ground here is a resort to law school training; to think like a lawyer, and to use logic and reasoning to see what can "independently" be made of the facts in a case.  Truth be told, what lawyers would really like to do is freely offer advice; to say things to some clients like "That was really stupid," "You're a damned fool," or "Stop doing that."  However, their role morality gets in the way of truth.  They must choose to use their discretion wisely, and be practical, not truthful.  This is no substitute for independence.  After all, it's the law (not the interpretation of law) which is seen as independent -- as a neutral and objective set of formal rules.  Hence, the attorney must put themselves into some kind of mental state which worships the law's independence, not their own.      

    Canon 6: Competence -- The most common complaint against lawyers by their clients is the charge of incompetence, but "incompetence" is a vague and ill-defined term.  There are no good numbers on how many complaints per year are petitioned against lawyers, but most studies in criminal justice (Pollock 2004) have found that the state bar disciplinary committees are hopelessly overburdened by the number of complaints, that complaints take years to investigate, and that by best estimates, only 1% result in disbarment, 3% result in some public sanction, and a whopping 96% result in either some private sanction or no sanction at all.  State bar associations control the sanctions, which can range from a recommendation for disbarment to public sanction (censure) to private sanction (informal admonition) to no sanction.  It is known that the most frequently dismissed (no sanction) complaints are precisely the ones that citizen-clients are most likely to file against attorneys, and those are complaints about things like not returning phone calls, being inaccessible to the client, and not giving the client enough face-to-face time.  None of these things meets the definition of incompetence, however.  It's almost as if to meet the definition of incompetence, an attorney must literally be caught in open court drunk or asleep.  Disbarment rates are minuscule, and the current system for investigating lawyers is usually secretive.  The legal profession even maintains a fund, called the Lawyers' Fund for Client Protection, which contains money for reimbursing clients who have suffered financial losses because of their attorney's dishonest conduct.

    However, in five states and the District of Columbia, private sanctions are not permitted, and all lawyer discipline in those jurisdictions is public.  Data from those jurisdictions reveal the following:

    What is it that lawyers do which merit the most serious (public) sanctions?  A public sanction of censure, by the way, might as well be disbarment, because the embarrassment usually brings an end to a lawyer's career or ability to do business; hence, resignation from the profession often results.  Once attorneys are hit with or face serious sanctions, they often move away, leaving little trace of where they have gone. Even authorities sometimes have trouble finding them.  From a review of the known cases, the most serious behaviors involve forged documents, withholding material evidence, intimidating a witness, lying, and/or sabotaging a client's case.  These are all examples of "noble cause" corruption, which are intended to either win a case or see that justice gets done.  Of course, there are the rare, salacious cases involving things like a lawyer sleeping with a client or accepting bribes, but the general pattern is "good lawyers who make mistakes."  Attorneys who get caught up in sanctions either try too hard to win (at all costs) or they decide to "sabotage" their client's case because they develop a streak of conscience and want to see their client punished.  In either event, it's a type of "noble cause" corruption because they're trying to do what they think is "justice."  Would a bar association vote to disbar an attorney who "gave up" because the attorney became convinced their client deserved punishment?  You can bet on it, yes indeed, because that violates the Canons in the worst way.         

    Canon 7: Zealous Defense --  A zealous advocate would maximize the chance of their client's winning regardless of the fairness of the outcome.  A "winning is everything" Canon has no place in a Code of Ethics, and it doesn't matter if you try to water this down with words like "zealous" (or synonyms like earnest, enthusiastic, hearty, diligent, or persistent).  The effect is the same -- people are not treated like ends, but as mere pawns to winning cases.  What about perjury?  Suppose your client takes the stand and commits unrecognized perjury, or perhaps only a small part of the testimony is perjury, or perhaps this client insists on committing perjury because they really believe it to be true?  Lawyer after lawyer is probably going to withdraw from the case, but sooner or later, someone is going to represent this client, and when they do, it would be a violation of that client's rights to not let them take the stand.  Suppose again that this client has character or alibi witnesses that might be lying.  The point is that there are some aspects of a case that an attorney wants to emphasize, some type of evidence that is critical or needs to be weighted more.  If the strongest part of the case involves lies and perjury, the attorney is in a dilemma.  A zealous defense means emphasizing those things that are the strongest part of the case; and an ethical defense means emphasizing those things that are the most truthful part of the case. 

    Likewise, in attacking the other side's evidence, there are ethical dilemmas.  Zealousness often leads to bitter cross-examination and "character assassination" of the other side's witnesses.  There is a fine line between forensic questioning of the credibility of a witness and badgering or "assassinating" the character of a witness.  It goes on all the time, especially in rape cases, where despite Rape Shield Laws, attorneys have a way of bringing out the sexual history of rape victims.  Eyewitnesses are also routinely discredited on grounds of less-than-perfect eyesight, etc.  A zealous defense demands a vigorous challenging of witness credibility.  Attorneys also have other tricks to influence a jury -- various courtroom theatrics, for example -- which are subtle attempts to make the other side look immature or disorganized; e.g. "As my younger opponent is trying to say...."  These tricks are in addition to the questionable usage of techniques like scientific jury selection and shadow juries which would be easily justified under a zealous defense doctrine.  Scientific jury selection involves using sociological research to guide the selection of "good jurors" who will be sympathetic to your case, and shadow juries (which only the rich can afford) involve hiring a team of "look alikes" (who are demographically similar) to the real jury in order to try out legal tactics the night before.           

    Canon 9: Appearance of Impropriety --  This means that a lawyer should not do things in poor taste, but another meaning of the word "impropriety" is to avoid making mistakes and always "keep up appearances" that one is "on top of their game."  In some ways, this is a silly thing to have in a Code of Ethics, but in other ways, it's inevitable that some profession, sooner or later, would hop onto the "higher standard" bandwagon that Nietzsche (1844-1900) articulated in his famous formulation of ethical irrationalism involving "superman" heroics and a higher calling.  The so-called Public Servant Ethics movement in public administration doesn't even go so far as to recommend avoiding all appearances of impropriety.  Glendon (1994) does a good job of criticizing this Canon as really representing a "double standard," not any "higher standard." Double standards are the typical fate of feigned attempts at elitism.  This Canon perpetuates a lack of diversity and multiculturalism in the legal profession, and serves the purpose of excluding women, minorities, and the lower class, because of elitist (usually white male) standards for etiquette and manners which are hard for non-white, non-males to assimilate.  Besides, do we really want a "cookie-cutter" mold for all lawyers?          

INTERNET RESOURCES
ABA Ethics Page
Cornell's LII American Legal Ethics Library
Findlaw's Cases Involving the Ethics of Lawyers
Justice as Interaction: Loose Coupling and Mediations in the Adversary Process
LegalEthics.com
Predators and Parasites: Lawyer-Bashing and Justice
The Criminal Courts as a Class System & Lawyers as Con Artists
The Faces of Mistrust: Images of Lawyers in Jokes & Public Opinion
Some Notes on the Lawyer's Role in Federal Indian Law
The Lawyer as a Professional

PRINTED RESOURCES
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Dershowitz, A. (1982). The Best Defense. NY: Vintage.
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Zitrin, R. & Langford, C. (2000). The Moral Compass of the American Lawyer. NY: Ballantine. [Sample Excerpt]

Last updated: Sept. 30, 2006
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