The Pit: Legal Ethics

As a law student, you may do well in constitutional law and poorly in evidence, or you may have a gift for oral argument or a real problem with legal research. And that's fine. You'll just have to steer your career toward your strong areas. But there's one subject in law school that permeates and overrides everything else, and if you're not able to grasp it, you don't belong in law school.

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That subject is legal ethics. Let us understand briefly what it is.

1. The Problem

The term "legal ethics" does not refer to a philosophical theory with which some attorneys agree and others disagree. It's not a matter of one's beliefs. Legal ethics are specific, printed rules, adopted by each state, and usually based on the ABA's Model Code of Professional Ethics and Model Rules of Professional Ethics. Attorneys who get caught breaking them are supposed to be punished for it. These are rules of ethics, not morals: written compromises that their authors reached, not on the basis of their own views of good and evil, but because of political decisions about what was necessary to preserve freedom under our system of government.

Among the many ethical rules, one in particular gave me problems. It is expressed in Canon200 No. 7 of the ABA Model Code, which says, MA lawyer should represent a client zealously within the bounds of the law." This canon means that you have to work toward your client's objectives, as long as they're legal, even if they're sleazy. You are not permitted to sit in moral judgment on your client.

Now, if you're a client, you could really appreciate this rule. It would be bad news if your attorney could back away just because s/he didn't like what you were trying to accomplish. It'd be like hiring a mechanic who wanted to keep his/her hands clean.

Still, a person can have a philosophical problem with this canon. Even though many clients may have benefited in the particular cases, one cannot guarantee you that their benefit outweighed the social cost of all the other cases in which clients honestly have no leg to stand on, but are allowed to go into court and yank the other guy around for a while - and maybe even win, wrongly.

Everyone has to choose his/her own reckoning ground, when it comes to this duty to serve the client's lawful goals zealously. But a question from the field of religion may show one useful way of thinking about the problem.

The question is this: Have you ever run into a Moonie? (Or, if you're a Moonie, have you ever run into a Jehovah's Witness?) There is this experience of trying to talk sense with people who, no matter what you say, have an answer for you. You spend a couple of hours dealing with objections, exceptions, and explanations, and by the time you're through, either you want to strangle them or else you're signing on the dotted line. If their logic doesn't draw you in, it'll drive you nuts.

Perhaps the best solution, in that kind of situation, is to go back to the very first nonsensical thing they said and start over. You stick with what you believe on that point, and although you listen to what they have to say, you don't move off that point until they've totally convinced you that your former views were wrong.

We have an adversarial legal system. The theory is that, by teaching the attorneys on both sides to confuse and deceive, you arrive at the facts. And now that you've considered the Ultimately, one has to conclude that this wonderful notion, the adversary system, is just another complicated gadget that should have been replaced, long ago, by something simpler and more suited to the task at hand, and that as long as we continue to use it, we'll get all kinds of weird side effects.

For example, you wonder what happens when you take 36100020 of the brightest people in the country each year, end them to law school, and teach them to excel in the arts of confusing the issue, hiding the truth, defending the useless, and damning the valuable. Is this, indeed, the most productive use of their talents? Or are they, instead, being taught to destroy the society they were supposed to help?

There is an answer to that question, no matter what the grand principles might be, it us a mistake to persuade your brightest people that they must master these dirty skills.

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The basic principle is this: Lawyers are trained to focus on doing what they have to do before their clients will pay them. That does not mean they have the clients' best interests at heart, and it certainly doesn't mean that they give a hoot about, whether the legal system itself continues to function well. In the big picture, it goes like this: If you let your United States go on for a couple of centuries with lawyers who rarely lift a finger to improve the system, it's not surprising that the system begins to show some signs of neglect.

It's like a taxicab in which you, the lawyer, are always going where your clients demand, at whatever speed they say, without ever stopping for maintenance. At first, you lose a few functions. You run out of windshield wiper fluid; the radio stops working. If you keep it up, more important systems fail you, like the clutch and the brakes. And then, one fine day, the machine won't start or, worse, it won't stop.

Our legal system has now reached a point where, if you're a client, your basic expectations of justice are so far off track that attorneys will sometimes laugh at you for expressing them. It's not necessarily that the attorneys don't wish they could do something for you; it's just that the functions you would like to use are, like the cab's radio, kaput.

Let's suppose you go out, today, and sue someone. You don't realize it yet, but you're about to begin working with judges and attorneys who, when they speak of "justice," do not mean the same thing as you. What they mean is "the justice that this legal system will produce." What you mean, by contrast, is "the justice that God would render if He were in charge of this case." You may not know that that's what you mean, but you'll find out.

And here's how you'll find out. You'll slowly see that what you get from the legal system is not at all what you'd get in heaven, or even in some far-away country where attitudes may be different. And that will frustrate you. But, as you'll learn, it's silly, in the eyes of lawyers and judges, for you to act as though there's some kind of alternative, perfect justice system to which you can easily refer if you don't like this one. This is the only one we've got; it's the best we could do; and it's all you're gonna get. For your purposes, Sir or Madam, this is justice.

It's mistaken to think that the justice system is concerned with the things you want it to be concerned with. It happens to be a system of justice, rather than a system of religion, or a system of finance, or a system of partying and good times.

But it is, first and foremost, a system. It may have looked like more at the outset, but appearances are deceiving, to say nothing of the people involved.

So you take your number and you wait in line. We're used to complaints about the service. If you aren't happy, chances are that the problem is in your head. The system is doing what it's supposed to do, or at least it's doing all that it's capable of anymore. We lawyers realize that there will be imperfections, and since we have no alternative, we accept them (except when clients will pay us to challenge them, or, more rarely, when we have time to devote, as volunteers, toward reforming them). Our justice system is just a system, not to be confused with a just system.

Go out and talk to some attorneys. Talk to some people who've been through lawsuits. If you ask the right questions about whether justice was done and how much it cost, in dollars and in tears, you'll almost certainly find yourself engaged, not only intellectually, but also emotionally, with the problems of the legal system. We all just wanted to get jobs and make money, without trying to make sense of the bigger picture.

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