Legal Ethics In The Age of Feelz: What Else You Got?

Ethics is one of those words that’s susceptible to varying meanings, which makes it a great vehicle for anyone with a moderately good handle on empty rhetoric to pretend to have a grip, and to couch their personal feelz in its jargon. The American Bar Association has become ground zero for this stroll down the road to perdition.

At its mid-winter meeting, it went on a social justice roll, with resolutions that would require corporate boards to reflect diversity and inclusion, bar exam questions matched to identitarian groups (like Indian law for native American bar takers), opening law to alt-law entities to facilitate access to justice, and soon thereafter, a new laundry list of things law firms shouldn’t discriminate against, such as socioeconomic status.  Why has the ABA gotten itself embroiled in all these social justice issues? Because it can. Because it’s a captive association for deeply passionate people, particularly academics. Because JUSTICE!!!

And if there is such a thing as God Justice, and if the high priests know what’s best for society, because they’re wiser than all who have come before, why not take the blind leap from things that, arguably, are tangentially associated with law and untether legal ethics from law altogether?  Damn straight, Skippy.

And Tom Lininger, a professor at the University of Oregon School of Law, will lead the way.

1-Tom Lininger

What? Me lie?

The American Bar Association’s Model Rules of Professional Conduct is a suggested blueprint for state bars, laying out a boilerplate for client-lawyer relationships, public service, communication and other matters of the professions. “It talks about other legal obligations for third parties, but never talks about the environment,” said Tom Lininger, a professor at the University of Oregon School of Law.

Lininger wrote the “time has come to remedy the conspicuous omission of environmental protection from the list of lawyers’ ethical duties,” in a paper for the Boston College Law Review. He argues in the paper that, as things currently stand, lawyers are ethically encouraged to advocate for clients but there are no incentives for minimizing potential environmental harm. He proposed a series of “green ethics” amendments to ABA’s rules.

Well, there’s a fairly obvious answer to Lininger’s concern: it has nothing to do with law, lawyers and the legitimate concerns of the bar. But when there are grand truths out there, the deeply passionate are not so easily thwarted.

He suggests allowing lawyers to reveal confidential client information to prevent “imminent, substantial and irremediable environmental damage”, and having lawyers inform clients of environmental damage they might do or plan to do and advise how to avoid such risk.

This would require a pretty fundamental change in law: getting rid of the laser-like focus of lawyers on the interests of nothing but their client.

Clients? Meh. What about the environment? Isn’t that why lawyers exist?

Some of Lininger’s proposed changes are a bit more far-reaching, such as the professional responsibility of providing pro bono services that improve environmental protection or adding an “environmental scorecard” to hold firms accountable for their environmental bona fides.

Really. Why not just make it a crime to represent ExxonMobil and cut out the middle man? And what is the reaction to Lininger’s radical, if not totally [ableist slur] ethical ideas from the academy?

The focus of the law boils down to protecting people, said Irma Russell, a law professor at the University of Missouri-Kansas City. “People are impacted inevitably when the environment is hurt. [People’s health] is hand-in-glove with environmental harm,” she said.

Russell called Lininger’s suggestions “good for clients as well as society.”

“The modern world has a lot of environmental hazards and a regime where people don’t feel pressure to protect public safety is unbalanced and a bad situation,” she said.  “Allowing lawyers to be true advisors rather than mouthpieces facilitates good decisions by clients.”

Why not issue lawyers badges so they can more effectively police the use of salt in fine dining restaurants? Oh crap, did I just write that?

“The lawyer’s involvement in explaining compliance and the risks of noncompliance provides a necessary predicate for next generation compliance success,” she writes, arguing such involvement falls within the profession’s ethical duty of serving the public good.

She said such legal environmental vigilance is even more important in the wake of a Department of Justice memorandum released last fall that made it a federal priority to hold individuals accountable for corporate offenses.

Don’t all lawyers have a duty to enable the DoJ’s prosecution regime?

There has been a spate of recent court cases dealing with climate change including a racketeering investigation of ExxonMobil alleging a climate science cover-up for years and children suing Massachusetts for not reducing greenhouse gases as obligated.

Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute, said such cases are only going to bolster scrutiny on the ethical obligations of lawyers as countries deal with the “single largest threat to society.”

“Some of the most important legal issues today are large corporations lying about climate change and being able to pollute a few more years,” Siegel said. “The role of lawyers helping them do that and the ethical considerations governing our profession will increasingly come under the microscope.”

If it’s the “single largest threat to society” (hey, Kassie said so, and she wouldn’t lie), then how can it not also be an ethical requirement for lawyers?  There is nothing whatsoever wrong with people, even if they’re lawyers, advocating for environmental concerns.  Just as they’re free to advocate for any other social justice concerns. Just like anyone else.

The question isn’t whether the environment is an important, even critical, issue, but what that has to do with the practice of law. In the same breath, Lininger not only seeks to elevate his politics to the status of an ethical requirement, but does so at the expense of the lawyer’s raison d’être, the zealous representation of clients.

Is there empty rhetoric that can be wrapped around this idiocy to make it appear, to the deeply passionate, palatable? Of course there is.

“Ultimately the legal profession is supposed to achieve justice,” Siegel said. “Justice can’t include just helping clients, when there’s an existential threat to our life support system all professions need to grapple with that—including lawyers.”

Katie’s words are deeply inspirational and totally wrong. It is not our purpose to “achieve justice,” but to fulfill our role in a system which, on occasion, is supposed to work sufficiently well to achieve justice (whatever that means). Not only can it mean “just helping clients,” but that is precisely what it demands of us. Anything else is horseshit tied up in a pretty green bow.

10 thoughts on “Legal Ethics In The Age of Feelz: What Else You Got?

  1. Richard G. Kopf

    SHG,

    Lawyers and judges should do law and only law. Indeed, they should consign the word “justice” to the garbage dump of words without meaning. The legal profession and the judiciary should leave “justice” to the great minds who have struggled for over a millennium to define the meaning of the word.

    All the best.

    RGK

    1. SHG Post author

      Having given this a great deal of thought, I choose to define justice as bacon. I love justice.

  2. PDB

    Does this mean that lawyers can’t eat meat (the methane caused by livestock contributes to global warming), drive SUVs, fly on airplanes, or use electricity that comes from coal-fired power plants?

    Maybe if Lininger, Russell, and Siegel closed their mouths, they would prevent the release of so much hot air that the global warming problem would be solved.

  3. DaveL

    The lawyer’s involvement in explaining compliance and the risks of noncompliance provides a necessary predicate for next generation compliance success.

    You just had to inflict that one on us, didn’t you? When people craft sentences like this, I have to wonder what their pillow talk sounds like.*

    *Actually I’d really rather not. Also, compliance.

  4. Jim Tyre

    Scott,

    You may end up trashing this comment, as it’s clearly off-topic to your point. So be it. But as you say, frequently and correctly, words have meaning.

    There are no ethics rules for lawyers. The ABA Model Rules are Rules of Professional Conduct. Here in California, where we don’t follow the ABA Rules, ours are Rules of Professional Responsibility. It isn’t just a question of the name of the rules. It’s that the rules never were intended to have more than a passing resemblance to ethics, as many think of that term. “Legal ethics” is an easy shorthand, but it’s wrong and always has been.

    You’ll get no argument from me about the proposed rules you discuss in your post.

    1. SHG Post author

      One of the great joys of blogging, for me at least (and really, does anyone else matter here?), is that it’s an ongoing conversation, such that I don’t have to repeat myself post after post after post. I can include a link, as I did in this post, that includes a discussion of the Model Rules so that I don’t have to burden myself or any reader with having to go through it again and again. I don’t like repeating myself, and I suspect some readers don’t care much for it either. But then there’s this guy:

      null

      And he’s too preoccupied telling me what I omitted to check the links to see that it’s already been said. Another of the great joys of blogging. And why would I trash your comment? If it was worthwhile for you to type it, isn’t it worthwhile for me to post it?

  5. Patrick Maupin

    So lawyers are now supposed to have broad-ranging and infallible science and engineering expertise?

    If Exxon’s and big tobacco’s lawyers owe a duty to all of us, I suspect the malpractice insurers aren’t charging enough.

  6. Marc R

    The ABA shows it’s on the ground and only in the clouds for tech. A plethora of legal rebels have been charging clients an environment tax typically in the range of 5-12%. That money is then donated to the Dept of Energy or Sierra Club. When faced with bill X or bill X plus 8% to better the environment, clients vote with their moral toes and, I can’t speak for all client-centered lawyers, I don’t want to be left a moral dreg in the coffee cup of legal reality.

Comments are closed.