Regulation of Lawyers: Problems of Law and Ethics

Regulation of Lawyers: Problems of Law and Ethics

Description

The ideas in this book and the course for which it is assigned will govern all of your professional life. Here you will learn the rules you have to live by and the consequences if you ignore them. Other courses teach lessons that bear on your clients’ problems more directly. This course is for you. Unless you work in the areas of legal malpractice, lawyer discipline, or the like, you and not your clients will be the immediate beneficiary of what you learn here. Your clients will be indirect beneficiaries. But there’s one exception. Knowledge of lawyer regulations permits you to know if another lawyer is acting in a way that violates your client’s rights—for example, rights under conflict rules or rules against communicating with another lawyer’s clients. The subject of this course can be discussed from three perspectives. T the precipice of your career, perhaps most important are rules that constrain your professional behavior. In such areas as competence, fees, marketing, confidentiality, conflicts of interest, negotiation, and the client-lawyer relationship, what may you do and how may you behave—with confidence that your conduct will not land you before a disciplinary committee, lead to a civil lawsuit, invite court sanction, forfeit your fee, or damage your reputation? Even to ask this question should be sufficient to forewarn you that the “ethics” in legal ethics is not merely about being amorally good person. It is also about being a professionally safe lawyer. For the fact is that the law business is heavily regulated, like banking, securities, and pharmaceuticals. The regulations are becoming increasingly complex. They have already led to creation of a new phrase—the law governing lawyers—lest anyone is fooled by the word “ethics” into believing that the subject is mostly about how to be liked or respected. You make two mistakes at your peril. 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 no one needs to teach you not to lie or steal in professional life, and certainly not in 800 pages. The rules here are often not self-evident; they may even be counterintuitive and can be exquisitely subtle in their application. Second, do not assume that the law office that hires you will provide all the protections you need against missteps. Good law offices do have systems to detect and avoid improper conduct. But they are not perfect, and, anyway, the duty to act properly is generally not delegable. The individual responsibility of each lawyer cannot be entrusted to a boss. In the end, you’re on your own. The second perspective from which to view the law governing lawyers is the relationship between the profession and society. The rules that lawyers impose on themselves through self-regulation or that are imposed on them by courts and legislatures, taken together, help defined 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 allows lawyers to advertise will influence the conduct of individual members of the bar. But it also affects the size of legal fees and whether or how large categories of people use lawyers. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client in order to protect others from harm will control that lawyer’s own behavior, but it may also affect which client populations use lawyers and what information clients are willing to give them. In short, nearly every rule, whatever its source, as social and political consequences beyond any single representation or practice, although there is often fierce disagreement over what these consequences will be and whether they should be avoided or encouraged. As you enter law 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, “What are the consequences to society and justice if one or another version of a particular rule is applied to America’s more than 800,000 practicing lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Many readers of this book will someday be in positions that require them to address the broader question. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses from practicing lawyers. Why? In part, because to answer them we must call upon political and moral values more fundamental than the “ethics” that inform various codes. And, of course, the political and moral values of different people may differ fundamentally. In addressing these questions, we should also try to be honest about the interests we mean to protect. Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client population we serve? Our firm’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in answering the questions raised here. In transition as you are, your answers to many of them will likely vary from what they would have been before you entered law school and will likely be still different five years after you graduate. I wrote that rules governing the practice of law can be discussed from three perspectives. I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice will take its toll on those who must obey it. As man and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. How can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made about the rule that requires lawyers diligently to pursue the lawful goals of their clients even if these goals (or legal strategies used to achieve them) offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tends to reward and the ones encouraged in personal and family life. Do you have to learn behavior in order to survive in professional environments that will make you unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? Once thinks of the common retort of a lawyer’s lay relatives: “Oh, stop talking like a lawyer!” Many topics in this book lend themselves to discussion of the effect of role on self (an issue which I hope you are able to address in class) but certainly they are worthy of self-reflection throughout your career, starting now. This is the seventh edition of this book. I started work on the first edition in 1982. Between editions I spend an hour or two each week planning for the next one. You get to thinking a lot about what a casebook is and can be when you live with one for so long. The book’s primary function is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick some 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 begin this way, but if nothing more were possible (even if not required), I doubt that I would have continued at it this long. Luckily, more is possible while still serving the book’s objective—to teach the subject. For starters, we can strive for humor, variety, clarity, and engaging writing. The enterprise will not likely support the extended charm of a Hazlitt essay of the quirkiness of a Vonnegut novel—assuming 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 should have, well, personality, and authorial presence in so far as possible. So you may find the tone or voice in my contributions to this volume (and even some of the editorial selections) different from what you’re accustomed to encountering in the genre. That’s what makes the book mine. The legal profession is a culture of storytellers and stories. Harrison Tweed, a president of the Association of the Bar of the City of New York, 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. They are better to work with or play with or fight with or drink with than most other varieties of mankind.” These words are in fact inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Mr. Tweed was a little over the top, if not downright sanctimonious, in making so grandiose a claim. At that time in my life, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said “all professions are conspiracies against the laity.” To some extent, I still find Tweed a bit excessive, though not quite as passionately as when I was starting out, and Shaw apt, even if hyperbolic. And yet Tweed has a point. The profession and its members are fascinating to study and its stories are fascinating to hear. Like any culture, understanding it requires density of information. We must know a thousand small things about life within the society of lawyers, not merely two or three big things, if we are going to understand it truly. While this book is not a sociological study of lawyers or of legal institutions, I have tried to incorporate current events in the materials and to offer you note cases—little stories, really—exemplifying multiple variations on particular themes. I believe that these will make the culture of law practice more real for you and thereby better help you understand the rules that define it. Finally, I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a story somewhere (true or fiction) that you think nicely highlights an issue? You can reach me in several ways. By snail mail at NYU School of Law, New York, NY 10012. By fax at (212) 995-4658. Send e-mail to stephen.gillers@nyu.edu. All comments will be acknowledged.

Publication Date

2005

Edition

7

Regulation of Lawyers: Problems of Law and Ethics

Find @ NYU

Share

COinS