How Attorneys Handle Winning of Good Over the Bad Ones

Not everyone has problems with this, of course, or we wouldn't have many lawyers. The fact is attorneys have a couple of ways of learning to put up with legal ethics.




a. Option 1: Sheer Crooks

Some attorneys are simply dishonest. They like the money, or the feeling of power, that they get from cheating someone else, and they don't seem to suffer from the guilt that might deter a good person. It helps them, too, to see that other attorneys and clients share their attitudes.

In law school and law practice, I sometimes cooperated with dishonest attorneys, while at other times I insisted on honesty. In the latter case, I would flatter myself for being so noble. It was fun to stand on a pedestal and sling bad names at crooked lawyers. But when I got tired of that, I wanted to understand why honesty seemed better. As far as I could tell, it came down to a question of competition.

Competition can be fun. But it can also be a pain. In law, as in sports, it's sometimes tough to know where to draw the line and say that someone has gone too far.

The rules for competition need to be liberal, so that people will want to come up with successful new ideas. But the rules can't let you win for an irrelevant reason. You're supposed to win because you're skilled or because you have a winning position. People sometimes call this "sporting" or "gentlemanly" competition. The idea is that you compete as hard as you can, but you stay within the rules, even if it means losing.

That can sound wimpy to those who want to win no matter what, even (indeed, for some people, preferably) if it involves cheating. For these kind of people, winning is the only thing that counts, and the only people talking about fair competition are those who can't hack it when the fight gets fierce.

For those who do cheat, cheating pays. Not always, but often enough to persuade them to do it. It may carry some long-term drawbacks - such as always having to look over your shoulder, always feeling dirty, not having real friends, etc. - but those are easy to ignore now and regret later, especially if the immediate payoff is rich enough.

Cheating does no good for the rest of us, though. If we hadn't believed in those rules for the courtroom or the baseball diamond, we wouldn't have set them up in the first place. We wanted them to show us who are the best. People who avoid them simply wipe out the whole purpose of the competition. For example, in the business world, ignoring the rules gives us shoddy goods and services. Your product can be inferior, and yet, with the Mafia behind you, or with the right advertising budget or the right attorneys, you can chase your competitors out of the market.

That's one drawback of playing to win. There's another drawback, namely, that sporting competition is much more fun. Winning is everything to the winner, but it's only part of why all those other people showed up to participate in the competition, knowing as they did that the odds were against them. The fact is the contest wouldn't be the same without the enjoyment that those others are having win or lose.

It's not surprising to see cheating occur so frequently in the practice of law. Law is not like a footrace, where there's a direct link between what you're doing and what you're trying to accomplish. In running, you win the race, not because of your juggling skills or how many pancakes you can eat, but simply because you are the fastest runner.

But in law, you use one kind of means to get to another kind of end. For example, most authorities say that you're in court to find the truth, and yet they let attorneys mislead people. As another example, courts are supposed to add to social peace. If you have an argument with someone, they're supposed to help you resolve it. But, instead, they add fuel to the flame. You learn that it helps your case to think of more and more reasons why you - and the judge - should hate the other guy.

This hurts those who come to the system sincerely, willing to compete fairly, on the merits of the specific problem that brought them there. It helps those who, for the sake of winning, will cheat, play games with the truth, and trot out irrelevant stuff to make the other guy look bad.

Of course, what one person can do, the other can do as well. Clients get tougher. And what used to be considered outrageous becomes standard. Indeed, as this process goes on, attorneys who aren't dirty fighters risk being held liable for malpractice, for not trying hard enough.

I found this prospect discouraging. I tried to believe that winning was always a good test of whether you and your client were in the right. But even that way of thinking of it put me at a disadvantage against those who, right or wrong, wanted to win at all costs.

b. Option 2: Conform and Compromise

Not all attorneys are cold-blooded sharks. In my experience, most are human beings who feel some degree of responsibility to do the right thing. Starting in law school, their lives have been a matter of balancing their personal integrity against the demands of their legal careers.

That compromise does not always require great dishonesty. Some attorneys practice in legal specialties in which they simply don't come across many challenging moral questions. A few others are able to distinguish themselves from the crowd as, for example, "Honest Abe Lincoln."

Also, in a lot of places, there aren't that many attorneys. It's a small world, and reputations get around. You can fight dirty for a while, but it may come back to haunt you. I've even heard of attorneys teaming up against the newcomer who gets too aggressive. In that pleasant spirit, too, many attorneys nudge their clients in the direction of honesty:

Clients usually look to their lawyer for clues as to what they can and should expect from the legal system and their lawyer. Give them the proper message, raise the ethical issues with them and you will find it relatively infrequent that a client persists in asking something that you are uncomfortable doing.

But having said those nice things, I'm poised to attack. There's something wrong with the quotes I just offered.

First, not all attorneys share this urge to make the world a more honest place. Even the honest ones might be indignant at the suggestion that they're supposed to act as moral policemen for their clients. "Business is business," they'll say, "and my job is to help my client win. That's where my paycheck comes from, and that's what I promised to do when I became an attorney.'' Sometimes you'll appreciate it, and sometimes you won't, but the bottom line is that, under our system of justice, your adversary's lawyer has a job to do.

Second, let's not flatter ourselves on our ability to sway the client. Clients may be flexible in Utah, but when you're in New York, they expect you to fight like a cornered werewolf.

Third, that incentive to be "one of the guys" may soften your aggression, but it can also mellow out your ethical conscience. For example, one article, foolishly entitled "Lawyers Are Serious About Professional Responsibility," noted that 58 percent of the attorneys who have witnessed misconduct by judges have decided not to report it; at least 33 percent of the attorneys polled said they would find it difficult to object (and remember, they're talking about themselves, so the percentages are probably higher) if a partner in their firms asked them to do something unethical; 76 percent say they occasionally or often encounter dishonest opposing lawyers; and one-third can't say that they believe the legal profession should police itself.