Regulation of Lawyers: Problems of Law and Ethics
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Description
This book is about the rest of your professional life. It’s about the rules you have to know and live by. It’s about what can happen if you forget. The lessons in this book and the course for which it is assigned are unlike the lessons of other law school courses. While those courses help you serve the legal needs of your eventual clients, this one’s for you. Unless you work in the areas of legal malpractice or lawyer discipline, you, not your clients, will be the prime beneficiary of the rules you learn here. These rules can be discussed from at least three perspectives. At the precipice of your career, perhaps most important are rules that constrain your daily professional behavior. In such areas as competence, fees, advertising and solicitation, confidentiality, conflicts of interest, negotiation, and the attorney-client relationship, what may you do, how may you behave, with confidence that your conduct will not land you before a disciplinary committee, lead to civil lawsuit, invite court sanction, 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 a morally good person. It is also about being a professionally safe lawyer. The second perspective of the book is the relationship between the profession and society. The rules that lawyers impose on themselves and that are imposed on them, taken together, 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 allows lawyers to advertise will influence the conduct of individual members of the bar. But it may also affect whether, and how, large categories of people use lawyers and the size of legal fees. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client will control the lawyer’s own behavior, but it may also affect which client populations use lawyers and what information clients are willing to tell lawyers. In short, nearly every rule, whatever its source, has 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. About to go off into 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 ethical rule is applied to America’s 800,000 lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses. 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. Furthermore, in addressing these questions, we probably make a threshold determination, conscious or not, of 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 addressing the questions raised her. 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. At the outset 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 great injustice will take its toll on those who must obey it. As men 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 the legal strategies used to achieve them) work unfairness and offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tend 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 downright unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? One 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. I hope you are able to address this issue in class. Certainly it is worthy of self-reflection throughout your career, starting now.
Publication Date
1995
Edition
4
Recommended Citation
Gillers, Stephen, "Regulation of Lawyers: Problems of Law and Ethics" (1995). Faculty Books & Edited Works. 321.
https://gretchen.law.nyu.edu/fac-books-edited-works/321
