Regulation of Lawyers: Problems of Law and Ethics
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Description
Titles like “Professional Responsibility” and “Legal Ethics” do not adequately describe the subject matter of this book. It is a book about the legal profession and about the practice of law. But the book goes beyond the legal rules governing the practice of law and include rules contained in ethical codes and, to a lesser extent, behavior that springs from custom and experience. These laws, ethical rules, and customs can be discussed from three perspective. Perhaps more immediate for those about to enter on a legal career are the rules that constrain working lawyers. In such areas as competence, gees, advertising and solicitation, client secrets, 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 or in a civil lawsuit and, sometimes more important, will not damage your reputation among your peers? The second perspective of the course is the relationship between profession and society. The rules lawyers impose on themselves or that are imposed on them, taken together, define the nature and operation of the profession as an entity, 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 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 in asking “What are the consequences to society and justice if one or another of a particular ethical rule is applied to America’s two-thirds of a million lawyers?” Still, the last question is important and, if not as immediate, will from time to time 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, 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 interest 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-interest 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 self. For example, a rule that requires silence though it means that another will suffer injustice may cause discomfort to 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. 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 foals of their clients, even if these goals (or the legal strategies to achieve them) offend the lawyer’s values. Little has been written on the effect of role on self in the context of lawyers’ work; we shall consider some of what there is in the first and final chapters and occasionally elsewhere in the book.
Publication Date
1985
Edition
1
Recommended Citation
Gillers, Stephen and Dorsen, Norman, "Regulation of Lawyers: Problems of Law and Ethics" (1985). Faculty Books & Edited Works. 330.
https://gretchen.law.nyu.edu/fac-books-edited-works/330
