Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Wednesday, June 01, 2005

Lawyer Ethics--Like Non-Dairy Creamer?

Are lawyer ethics like non-dairy creamer--a laughable oxymoron?

I don't think so. Despite all the bad press attorneys get (some deserved admittedly), lawyers on the whole do care about ethics.

For examples, the profession requires formal training in ethics; passage of two exams on the topic (the bar and a dandy called the MPRE); continuing ethical education; and dues paying to an organization whose core purpose is to police unethical lawyers.

Few, if any, other professions have placed such an emphasis on ethical practice. Ever hear of used car sales ethics? The wrapper's still on the text I saw in the library.

Education and enforcement obviously constitute external forces designed to fashion ethical lawyers. However, there are internal forces at work as well. The following excerpt from an attorney calling himself, "The Greatest American Lawyer" (ok, puffery might stretch the bounds of ethics), furnishes a fine example of one lawyer trying to guide the profession to higher ethics.

Addressing the phenomenon of receiving a "confirming" letter that doesn't resemble the conversation or commitments it purports to confirm, this attorney runs through the standard options and arrives at a somewhat unique proposal designed to better the practice one lawyer at a time. GAL writes:

"How many times have you received a letter from opposing counsel saying you said something you did not say? I receive several letters each week from opposing counsel which either tortures our conversation or outright misrepresents what was said all together. This usually starts a letter war which wastes attorney time and client money. Of course the goal is to be able to waive the letter in court and convince a judge and gain unfair advantage in the case.

"I have struggled with this issue for years. I have tried fighting fire with fire. I have engaged in the CYA letter war fighting furiously over what was said and what was not. [I] wonder what would happen if we dedicated ourselves to counseling other attorneys on professionalism in a non-threatening manner. Today, I dedicated myself to sending a private response an an example of which follows:

"Greg: I have passed you[r] email onto my client for review. However, I did want to send you this personal note. You included in your email the following statement:

"'In our telephone conversation of yesterday, you represented to me that if we could document to you that [my client] had requested that your client register these domain names as an agent and paid for them, that you would advise your client to transfer the domain names immediately to [my client] .'

"Obviously, I did not say this at all, although I agreed that it would be relevant information to know so I could advise my client. Creating the impression of non-existent agreements for the purpose of leverage is a common tactic in our profession. I receive slight exaggerations and overreaching quotes attributed to me each day. I’m certain you do as well. And to each of them, I am now responding privately and would encourage you to do the same in a non-demeaning, non-threatening way. I think we all tend to simply play by the rules which everyone else plays by after a while. We give up questioning whether the rules are appropriate or even helpful.

"I also have come to believe that these tactics (perhaps they are not even tactics any more since no one pays much attention to them) have never really provided any real value to my client in my experience. I have come to believe that such ‘tools of the trade’ really do work to undermine the level of professionalism which we must all come again to expect from each other as lawyers and the profession as a whole. I have committed not to do it moving forward in my career. I won’t say I have never done it myself since that would be untrue. I spent years fighting fire with fire.

"I have also come to believe that such habits also work against the interest of my client since they more often than not undermine the prospect of resolution, rather than further my client’s goals. To the extent such overreaching undermines the attorney client relationship of the opponent; the client is again disadvantaged in most instances. An exception might be when you know the opponent is being lied to by their own lawyer.

"I look forward to working with you on this matter towards a resolution. I am recommitting ... that the client’s goals must remain secondary to the legal profession itself which makes those goals possible. Granted, our profession has gone in directions which none of us should be proud (I’m sure you have your list as well).

"Why this email? I am working with a group of top attorneys and other professionals nationally to reclaim the professional aspect of the legal business. Each of us has committed to creatively and constructively attempt get involved ‘on the ground’ in order to shift the system back towards its ideals (which I know we all would appreciate).'"

More than a modest proposal.

(HT: The Greatest American Lawyer: Our duty to help other lawyers be professional ...)