Legal System around the Worlds

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.


That subject is legal ethics. And before I describe why it's so important, I'll explain 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 author 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 Canon No. 7 of the ABA Model Code, which says, "A 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're 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.

But I wasn't the client. I was training to be the lawyer, and I was supposed to be looking forward to the dirty work. That bothered me. I wasn't eager to be a bad guy, if badness was what it took to help my client win.

I don't deny the power of this canon's approach. I have personally had the experience of starting into a case, not believing what the client was saying, but doing my best to build a good case for him/her anyway, and then discovering, as I went along, that, hey, maybe there really is something to this argument I've been concocting. That process never would have taken place, and perhaps that best defense of my client would not have been made, if I'd been sitting back, appraising everything like a judge.

Still, a person can have a philosophical problem with this canon. Even though my clients may have benefited in the particular cases I just mentioned, I can't 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 Moonie problem, you know the proper response: "No way! Prove to me that two liars will produce the truth! "

To be sure, I don't want to irritate the litigators among us. So I will buttress my accusation of lying. Here is a close paraphrasing from a booklet that the New Jersey bar association gives to people who pass the state's bar exam, as part of their preparation to practice law in that state:

If your adversary is an exhaustive cross-examiner, call your strongest witnesses early in your case. After your opponent bores the jury with a repetitive cross-examination in which s/he will fail to discredit these strong witnesses, you can then sneak in your worse witnesses. The jury will be much less attentive.

If you ask questions carelessly, the answers of a bright or honest witness may be, devastating.

Unless there is a particular reason for obfuscating the issues, it is most important that the jurors under-stand all of the salient points of an interrogation.

A truthful and intelligent opposing witness can be deadly. A good peripheral examination of that witness, however, will give you arguments that you can make to the jury at the close of the case, regardless of the answers given by the witness.203

Ultimately, I had 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 will happen when you take 36,000 of the brightest people in the country each year, send 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, and as I was going through law school, I realized - perhaps from comparing the attitudes I found in my contemporaneous business school classes - that it was not what my law professors wanted me to believe. As far as I could see, no matter what the grand principles might be, it was a mistake to persuade your brightest people that they must master these dirty skills.

In 1920, we had 122,519 lawyers, or one for every 863 people. But by the year 2000, we will have one million extremely intelligent, highly influential people who will have been trained, by law schools, to be lawyers - that is, to concentrate on learning how to strip as much as possible from one person, without regard to the virtues of the case, and grant it to the other person, just because that other person happens to be the client. At least one out of every 290 Americans will be a lawyer, trained to speak eloquently, work diligently, and become public figures, so that they may teach the rest of us these bitter ways of dealing with one another.

As much as I'd been taught never to use the word "obviously," because nothing is truly obvious, I had to make an exception in this case. There was something obviously wrong here, and I was becoming a part of it.