Fear of Ethics

While integrity is a character trait, knowledge of the rules of ethics is something that must be taught to budding lawyers in the hope that they will know what to do when the time comes.  According to Paul Horowitz at PrawfsBlawg, this has become a challenge.

I have lately been thinking, though, that another influence on the class is the economy itself.  It would be foolish to say that a given year’s class of students is more or less “ethical” than others.  But I do think that the answers I have been receiving in class discussion for the last couple of years have been heavily influenced by the poor legal economy.  

For one thing, it can be hard to focus on the — forgive me — niceties of legal ethics when your first concern is just getting a job, any job.  More importantly, my sense is that students’ responses to ethical dilemmas are now heavily influenced by the idea that any client — even a client in a hypothetical problem — may be the last client they ever see, and that if something has to give, they would always rather keep a client than withdraw or give recommendations that risk seeing the client walk.
Whether this would be better characterized as situational ethics or Maslow’s Hierarchy of Ethics, is unclear.  What is clear is that Horowitz’s students are zealously seeking to rationalize the rules for their personal advantage.  The cynical would call this typical lawyer behavior, looking for a loophole in ethical responsibility so that the lawyer makes out at the client’s expense.

But how much of this reflects a lack of integrity as opposed to fiscal necessity?  And what has become of integrity at time when self-interest has become a legitimate countervailing interest in the world of legal professionalism?

There is a chasm between the understanding of lawyers schooled a generation ago and those since, and even more so thus just recently.  We aren’t talking about the same thing, even though we use similar words and seem to be discussing the same concepts.  Despite the flurry of condemnation recently over the Rakofsky fiasco, there is commentary, or at least aspects of commentary, that demonstrate a gross misunderstanding of the fault.

At  Brian Tannebaum’s post on Rakofsky, there is a comment questioning the client’s responsibility for being fooled.
What duty does the potential client have, if any, to research an attorney. Yeah, the client may have been duped to some degree, but don’t they have the right to hire a lawyer of their choosing, even if you would not approve of their choice???

This shifting of blame was echoed in a subsequent post about Rakofsky.


As a result, the burden is also on the party hiring the lawyer to perform due diligence.  Says Saul Singer, senior legal ethics counsel for the D.C. Bar:  “Web sites and bar licenses don’t provide enough information.  Potential clients need to get references and check out a lawyer’s reputation.”  Singer continues:  “I don’t trust the Internet, because anybody can go on there and say anything.”

While it certainly behooves a client to “perform due diligence” rather than fall prey to a scam, the burden never falls on the client to bear the responsibility of a lawyer’s ethical failings.  How, exactly, a client should perform such diligence remains something of a mystery, as Singer correctly notes that anybody can say anything on the internet, reducing it to an inherently untrustworthy source.

This is not to suggest that either of the lawyers who questioned the clients’ role would engage in unethical conduct, but it does suggest that the line of DR 102(A)(4) isn’t clear any more.  Lawyers shouldn’t engage in “conduct involving dishonesty, fraud, deceit, or misrepresentation,” unless they can get away with it?  Or at least it’s not just the lawyer’s fault for being less than honest, and it’s fair to blame the victim.

As Horowitz notes, these rules are considered more “niceties” than duties, as if ethics is some archaic leftover from the days when lawyers could find jobs that paid sufficiently well to cover the debt service on student loans, keep the cupboards stocked with Cheetos and fill the leased BMW with hi-test.  The students don’t want to sit there in Legal Ethics class, and the professors, according to Horowitz, don’t want to teach it.  It’s not sexy. It’s not fun.  It’s not going to earn them money.  No lawyer can promote himself by noting that he aced legal ethics.

The internet is, most assuredly, not a trustworthy source of information for the public.  Beyond the fractious nature of blogs and websites, where specific agendas collect supporters wearing tin foil hats or blinders who assert with absolute certainty that there are good and evil sides, right and wrong trends, magic answers to troubling problems that are hidden from sight by vast conspiracies of liberals, conservatives, corporations and, yes, lawyers. 

But the existence of hungry, desperate lawyers on the internet with little concern for the niceties of the disciplinary rules provides no excuse for the lines to grow wiggly in the classroom.  It’s bad, very bad, that we are facing a crisis of integrity on the internet amongst lawyers.  Yes, a crisis.  But the job in the classroom isn’t to water down ethics, make it palatable or succumb to the demands of students to circumvent their ethical responsibility in their effort to earn enough money to repay their student loans.  The going is tough.  Ethics do not change.

Of all the required classes in law school, one pervades everything a lawyer does and will ever do when holding the trust of another person in his hands.  Especially in the age of the internet, of marketing the marketing of law, of a vision of tough times ahead and hungry mouths to feed, the need for clarity and firmness in the ethical responsibilities of lawyers is more important than ever. 

Maybe the students won’t be happy to hear it.  Maybe the students won’t love you for it, and award you happy professor of the year.  But don’t let a fear of ethics undermine what may well prove to be one of the most important thing they learn in law school.  Teach them that lawyers cannot deceive the public, no matter how hungry they are.

10 thoughts on “Fear of Ethics

  1. Mike

    You know there’s something rotten when a bar official says, “I don’t trust the Internet, because anybody can go on there and say anything.”

    If only someone had the ability to deter others from lying on the Internet… If only were were a set of rules prohibiting lying to client…. If only someone had the power to enforce these rules….

    Sigh, alas, what is a helpless bar lawyer to do?

  2. SHG

    You know I would love to lay a pile of blame on bar lawyers/disciplinary committees and all the very important officials who hold impressive offices in the bar.  You KNOW I would. But how can anyone police 10,000 websites and blogs, changing daily?  The internet defies officialdom, and while the officials are generally worthless, there would be nothing they could do to stop this tsunami from flowing in.

  3. Jeff

    This is sad. Horowitz actually teaches at a good law school (at least I thought) as opposed to the many unheard of places churning out the Rakofskys of the world.

  4. Jeff

    I did not mean to offend anyone who may have attended Rakofsky’s law school. I just assumed a school such as Alabama would not have these types of issues.

  5. SHG

    I think very highly of Horowitz, and didn’t mean to suggest that he was doing a lousy job as much as trying to cope in a changing ethical environment, where students affirmatively disdain ethics in favor of making money.

    As for “many unheard of places,” don’t talk smack about fourth tier law schools.  Harvard is fine for lawprofs, but the bottom ranked schools produce killer trial lawyers, with the occasional exception.

  6. Mike

    Modern ethics is, unfortunately, probably best understood as the study of incentives. People behave “ethically” not because of strength of character; but because the right incentives are there. Lawyers lie for the same reason people rob banks: “That’s where the money it.”

    There is a strong incentive to lie, with no accompanying disincentives. If you get caught laying, who cares? What’s the worst that will happen? Maybe some guys on the Internet will write about it?

    If the bar clipped a few wings, people would at least reconsider lying. Ethical behavior would start following the incentives.

    I know you’re old school, so it must be disgusting imaging the state bar having to train lawyers as if they are dogs. Yet as lying – rather than merely spinning or puffing – is becoming the norm, one wonders what other solution exists.

    I personally am not optimistic that we’ll see a resurgence of person character and integrity. Lawyers are culled from the culture, and what is the culture but amoral, narcissistic self-interest seeking? Absent some change in culture, what else will protect clients?

  7. SHG

     If you get caught laying, who cares?

    Freudian?

    If the bar clipped a few wings, people would at least reconsider lying. Ethical behavior would start following the incentives.

    The incentives are dependent on two factors, likelihood of getting caught and severity of punishment.  I fear that neither will do much to stem the tide, nor would I want punishment to be overly severe.  You’re right, I’m old school, and when the worst that will happen is some guys on the internet will write about it isn’t enough of an incentive to make lawyers behave ethically.

    It’s a problem.

  8. Aaron G

    I’m not sure self-interest and integrity are mutually exclusive. I am sure integrity and acting with the expediency of the moment are mutually exclusive.

    You can’t do the right thing by degree. You either do the right thing or not, no matter the difficulty in making that choice. It doesn’t matter if it means losing your last client with the rent due tomorrow and no money in your pocket.

    I agree with the sentiment about the culture, though. As much as some like to tout my generation as being more public-service oriented, more socially conscious, etc., it’s all complete bullshit. My generation is filled with more looters, moochers, and entitled whiners than any before it. Good professors might not be able to fix baby boomers’ failed parenting, but they surely shouldn’t encourage the behavior that results from it.

  9. BRIAN TANNEBAUM

    I recently interviewed a retiring judge who used to prosecute for the Bar. He said the difference today is that in the past, lawyer discipline was mostly for negligence. Now it’s for intentional acts – lying, theft, etc..

    Things have changed. Today’s young lawyers deny it, while those in law school admit it. There is a sea of law students there for one reason – cash. And now that the cash is not there, they will find a way to get it.

    When real estate dried up, these are the lawyers that became foreclosure lawyers, that will become something else when foreclosure dollars are hard to find.

    There are too many in our profession today that want to make “lawyer” money (which is a misnomer for the average lawyer) but don’t want to be lawyers.

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