Regulation of Lawyers: Problems of Law and Ethics
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Description
Title like “Professional Responsibility” and “Legal Ethics” do not fully describe the subject matter of this book. It is a book about the legal profession and about the practice of law. The book includes laws governing the practice of law, rules contained in ethical codes and constitutions and, to a lesser extent, behavior that springs from custom and experience. These laws, ethical rules, and customs can be discussed from three perspectives. Perhaps most immediate for those about to enter on a legal career are the rules that constrain working lawyers. In such areas as competence, fees, advertising and solicitation, client secrets, conflicts of interest, negotiation, and the attorney-client relationship: what may you do, ho may you behave, with confidence that your conduct will not land you before a disciplinary committee or in a civil lawsuit and, sometimes more important, will not damage your reputation among your peers? The second perspective of the book is the relationship between the profession and society. The rules lawyers impose on themselves or that are imposed on them, taken together, define the nature and operation of the entire profession, and therefore, to an extent, the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise certain kinds of information will influence the conduct of individual members of the bar. But it will 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 individual conduct, but it will also affect which client populations use lawyers and how. In short, nearly every rule, whatever its source, has social and political consequences, although there is often disagreement both 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 is asking “What are the consequences to society and justice if one or another version of particular ethical rule is applied to America’s nearly 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 mora values more fundamental than the “ethics” that inform various codes; and, of course, political and moral values of different people differ substantially, sometimes diametrically. Furthermore, in addressing these questions, we are likely to make a threshold determination, conscious or not, of the extent to which we want the answers to further our self-interest. However we couch our responses, in truth whose best interests do 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 kinds of questions that will be raised here. At the outset we wrote that rules governing the practice of law can be discussed from three perspectives, and we 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 shelf. For example, a rule that requires silence though it means that another will suffer injustice may cause great discomfort to those who must obey it. As men and women, we consider if laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. Can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made with regard to the rule that requires lawyers zealously to pursue the lawful goals of their client, even if these goals (or the legal strategies to achieve them) offend the lawyer’s values. Conflict between work life and private life also arises in another way. It concerns not the particular deeds that a lawyer may be called on to perform for a client and the he or she might find morally problematic if performed outside the professional role, but the way that professional service (and the culture of law practice) affects other aspects of a lawyer’s life. Most obvious is the clash between job and family. For example, does the profession allow people to reach its higher rungs and also be conscientious and responsible parents? A second issue is the possible discrepancy between the qualities of personality that law office culture tends to reward and the ones encouraged elsewhere. Do you have to learn behavior to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also leans to “leave it at the office”? (One thinks of the common criticism from a lawyer’s lay relatives: “Oh, stop talking like a lawyer!”) When the first edition of this book appeared four years ago, little had been written about these conflicts. Now there is much more, though not perhaps as much as appears about Rule10b-5, Rule 11, or the rule against hearsay. But they are important matters, and we shall speak of them again.
Publication Date
1989
Edition
2
Recommended Citation
Gillers, Stephen and Dorsen, Norman, "Regulation of Lawyers: Problems of Law and Ethics" (1989). Faculty Books & Edited Works. 328.
https://gretchen.law.nyu.edu/fac-books-edited-works/328
