Regulation of Lawyers: Problems of Law and Ethics

Regulation of Lawyers: Problems of Law and Ethics

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Reading a preface is not high on your to-do list. I get it. But this one is written with you in mind. And it’s short. So give me five minutes. Maybe ten. Three quick points. First, this casebook has a personality, a voice: mine. In that way, it is unlike some other casebooks. Its voice is conversational. And here and there, it takes a position directly, not only though the views of others. Second, the book contains many problems. Some are one paragraph, others a page or more. Many are based on real dilemmas I’ve heard or read about. Mostly, the problems are dense and messy, like life. They arose yesterday or will arise tomorrow. A problem may not have all the information required to answer it. You may have to identify what more you need to know. Third, this is your second most important class. Yeah, right, you think. It’s a bold statement, and here’s why I make it. Say you become an antitrust lawyer. Your criminal procedure class will fade into a remote corner of memory. Or if you become a criminal defense lawyer, you won’t need to know much about copyright. But whatever work you do as a lawyer, you will practice what you learn in this book and the class that assigns it every day you go to work. Other courses teach lessons that bear on a client’s legal problems. This course is about you, with two exceptions: Knowledge of these rules enables you to protect your clients against misconduct of other lawyers. And representing law firms in trouble (or needing advice to avoid trouble) is a growing practice area that might appeal to you. As you approach the starting line of your legal career, most important are the rules that constrain your behavior. You will want to know—in such areas as competence, fees, advocacy, confidentiality, conflicts of interest, negotiation, and the client-lawyer relationship—what may of must you do or not do with confidence that your conduct will not land you before a disciplinary committee, create civil liability, invite court sanction, forfeit your fee, or damage your reputation. “Ethics,” while a useful term, does not accurately encompass all the lessons learned here. The law business is heavily regulated, and the regulations have grown more complex in recent decades. This has led to new terms—the law governing lawyers and the law of lawyering—lest anyone be fooled by the word “ethics” into believing that the subject is simply about how to be a good person (although there’s some of that too). Avoid two errors. First, do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But not one needs to reach you not to lie or steal, and certainly not with hundreds of pages of text. The rules here may be obscure, some may be counterintuitive, and they can be subtle in application. Application in turn calls for judgment, and judgment is mostly learned through experience. Indeed, much of what lawyers do for clients is make judgments—about where the law is and is likely to go, what a particular judge or court will do in a pending litigation, and the risks of a contemplated strategy or decision. You develop that judgment across years of practice but it begins now. Second, don’t assume your employer will provide all the protection you need. Many law offices do have systems to detect and avoid mistakes and they have people to whom lawyers can turn for advice. But the best systems and resources are still not perfect, and anyway, the professional responsibility of a lawyer cannot be delegated wholesale to others. Furthermore, you need to know enough about the subject to be aware when you have a problem that requires advice. But it’s not only about you and your clients. A broader perspective from which to view the laws and rules that regulate lawyers looks at their effect on civil society and the administration of justice. These laws and rules help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that prohibits or requires a lawyer to reveal a client’s confidential information to protect others from harm will influence a lawyer’s own behavior, but it may also affect what clients are willing to reveal. As you enter practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking the broader question, “what are the consequences to civil society and justice if one or another version of a particular rule is applied to America’s one million licensed lawyers?” Still, the last question is important and, if not as immediate, may arise in the course of your professional life. You may someday be in positions to resolve the broader questions—as a member of a bar association committee, a legislator, a government lawyer, or a judge. Asking about the consequences to justice and civil society if a rule is resolve one way rather than another—saying which resolution is best—engenders different answers among lawyers and also the public. Why is that? In part because the answers depend on political and moral values more fundamental than the “ethics” that inform various codes. And, of course, the political and moral values of different people differ. In addressing these questions we should also try to be honest about the interests we mean to protect. Those of society generally? Those of a particular client population? The legal profession’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interest in answering the questions raised here. In transition as you are, your answers may vary from what they would have been before you entered law school, and they will likely be different five years on. Lawyers admitted to practice in the second decade of the 21st century will enter a profession in greater transition than was so at any other time in U.S. history. Three interrelated forces are reshaping the U.S. law industry: technology, globalization, and competition from abroad and from new sources of legal advice. These forces are upsetting a lawyer regulatory system that has served the United States well for more than a century, a system based on geography. In that system, lawyers get licensed by a place and serve clients from an office in the same place. But technology has disturbed the utility of geography as the basis to regulate. The Internet does not recognize borders. Neither may a client’s problems. Technology and globalization have encouraged competition from lawyer outside the U.S. and the ability of non-law businesses here and abroad to offer legal services at a lower cost. This is the tenth edition of the book. I started on the first edition in 1982 shortly after the birth of the first of two amazing daughters to whom all editions have been dedicated. I sent the manuscript to the publisher just after the birth of the second daughter in 1984. Since then, I spend a few hours weekly planning the next edition. The daughters are now out in the world, but the book never left home. You think a lot about what a casebook is and can be when you live with one so long. The book’s primary purpose is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between covers. Voila! A casebook. Of course, one must being this way, but if nothing more were possible (even if not required), I wonders if I wouldn’t have kept at it so long. Luckily, more is possible while still serving the book’s goal—to teach the subject. For starters, we can strive for humor, variety, clarity, and good writing. The enterprise will not likely support the charm of a Hazlitt essay or the quirkiness of a Vonnegut novel—assuming counterfactually that I had the talent to achieve either (in which case I’d probably be in a different line of work)—but a casebook is a book, after all, and it should have an authorial presence in so far as possible. That’s what makes the book mine. And then there are the stories lawyers tell each other. The legal profession is a culture of storytellers and stories, Harrison Tweed (1885-1969), a president of the New York City Bar Association, once said: “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. Hey are better to work with or play with or fight with or drink with than most other varieties of mankind.” These word are inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Tweed was overly effusive, if not downright sanctimonious. At that time, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said that “all profession are conspiracies against the laity.” To some extent, I still find Tweed excessive and Shaw’s character apt. even if hyperbolic. But now I think Tweed had a point. The profession and its members are fascinating to study, and its stories are fascinating to hear. As with the study of any culture, understanding the bar requires density of information. We must know a thousand small details about the actual life within the society of lawyers, not merely a few doctrines and theories, if we are going to understand Lawyerland truly. I have tried to include some of those details here. I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a quote or story somewhere (true or fictional) that you think nicely highlights an issue? This edition is indebted to past users who alerted me to interesting sources. Send e-mail to stephen.gillers@nyu.edu. All comments will be gratefully acknowledged. My ten minutes are up. Onto Chapter 1.

Publication Date

2015

Edition

10

Regulation of Lawyers: Problems of Law and Ethics

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