Model Rule 1.0: Lawyers are Morally Accountable (original) (raw)
Related papers
2014
The Watergate break-in and its cover-up in the early 1970s convinced the American public that lawyers will do illegal and immoral things for the sake of their clients' and their own interests. The organized bar responded to Watergate with several steps that were designed to clean up the profession. The ABA adopted a new set of professional rules,' law schools required students to study professional responsibility, and states required that lawyers pass a special professional responsibility exam. But continued problems in the legal profession have followed this attention to professional rules. In addition to the highly publicized lawyer leadership in the corporate takeover, savings and loan, and Whitewater scandals, observers of the legal profession find among lawyers a growing preoccupation with making money, 2 an increase in litigiousness, greater incivility, and more misuse of legal procedure. 3 It may be that the problem in the legal profession is not too little attention to rules, but too little attention to character. This crisis in the legal profession is the subject of recent books by Yale law professor (now dean) Anthony T. Kronman 4 and Harvard law professor Mary Ann Glendon. 5 Neither Glendon nor Kronman calls for new professional rules. They resist the Enlightenment (and lawyerly) temptation to propose a rule to solve every problem. In very different ways, each calls for a return to an older, more subtle moral tradition-the exercise of virtues.
The Central Moral Tradition of Lawyering
Hofstra Law Review, 1990
Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.
The Watergate break-in and its cover-up in the early 1970s convinced the American public that lawyers will do illegal and immoral things for the sake of their clients' and their own interests. The organized bar responded to Watergate with several steps that were designed to clean up the profession. The ABA adopted a new set of professional rules,' law schools required students to study professional responsibility, and states required that lawyers pass a special professional responsibility exam. But continued problems in the legal profession have followed this attention to professional rules. In addition to the highly publicized lawyer leadership in the corporate takeover, savings and loan, and Whitewater scandals, observers of the legal profession find among lawyers a growing preoccupation with making money, 2 an increase in litigiousness, greater incivility, and more misuse of legal procedure. 3 It may be that the problem in the legal profession is not too little attention to rules, but too little attention to character.
Central Moral Tradition of Lawyering, The
Hofstra L. Rev., 1990
Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.
The Zealous Advocacy of Justice in a Less than Ideal Legal World
In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire -- the moral quality of litigation would improve, as would the reputation of the bar, and likewise the justice of the law itself? But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of cli...
Reimagining the Lawyer's Duty to Uphold the Rule of Law
University of Illinois Law Review, 2023
The legal profession has long embraced the view that lawyers have an obligation to uphold the rule of law. Upon close examination, however, it seems clear that lawyers are not expected to do much to promote it. If we take the bar’s pronouncements seriously, we see that, for the most part, so long as lawyers zealously protect and pursue their clients’ interests within the bounds of the law, they are in fact fully discharging their obligation to uphold the rule of law. This Article argues that this conventional view—that mere compliance with formal legality satisfies the lawyer’s duty to uphold the rule of law—is problematic. First, this view makes the duty to uphold the rule of law superfluous, because lawyers are already obligated under the ethical rules not to violate the law. Second, this view assumes—almost as an empirical matter—that compliance with the positive law is sufficient to maintain a society that lives under the rule of law. Yet, a growing body of scholarship on “legalistic autocracies” casts doubts on that assumption. What these legalistic autocracies seem to demonstrate is that it may be possible to observe formal legality without the rule of law. This Article offers a wider, alternative account of the lawyer’s rule-of-law obligations that better comports with our strong, albeit vague, intuition that the rule of law demands far more than bare compliance with legal norms and is far more complex than what is conventionally assumed. This alternative view is grounded in the realization that “the rule of law” is a teleological notion—in other words, to be understood in terms of its point: we seek the rule of law for purposes; we enjoy it for reasons. Because of the inherent teleological character of the rule of law, no check-the-box criterion—such as compliance with formal legality—will guarantee the valued state of affairs in which law actually rules. This Article argues that the substantive value, or telos, that lies at the heart of the rule of law is the restraint of the arbitrary exercise of power, a concept that comes from the republican intellectual tradition. By taking this substantive value seriously and constructing a thicker, more substantive understanding of the rule of law around this value, we better appreciate the myriad ways in which our society falls short of that ideal, and we can better see why and how the conventional view of the lawyer’s duty to uphold the law, grounded in legalism, falls short of respecting and nurturing the rule of law.
The Lawyer As Consensus Builder: Ethics For a New Practice
2002
THE LA WYER AS CONSENSUS BUILDER 65 perfonn as counselors,3 lobbyists,4 and government lawyers. s Such recognition of alternative roles, however, assumes that lawyers will continue to serve as zealous advocates for their clients. In general, a lawyer's duty is conceived of as a duty to maximize a client's individual, corporate, or entity interest within the bounds of the law. 6 Thus, although there are some limits placed on the "zealous advocate,"7 the lawyer's goal is to seek gains that benefit his client-whether those gains are achieved by "winning" in litigation or by drafting advantageous clauses in contracts. In the last few decades, the American Bar Association ("ABA") has revised the ethical rules for lawyers several times, beginning with the Model Code of Professional Responsibility ("Model Code") in 1969, continuing with the Model Rules of Professional Conduct ("Model Rules") in 1983, 8 and, most recently, with the proposed revisions to the Model Rules by the Ethics 2000 Commission. 9 With each revision, debates emerge regarding the introduction of new duties and responsibilities for lawyers who serve in alternative roles of legal practice. 1O Despite the ABA's efforts, arguments continue regarding whether it is possible to draft an ethical code for a unitary legal profession and whether specialized codes are required to recognize the distinct duties that 3. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 2.1,2.3-2.4 (2002) (stating that a lawyer may advise a client on "moral, economic, social[,] and political" considerations, provide a third party with "an evaluation of a matter affecting a client" if "compatible with ... the lawyer's relationship with the client[,]" and serve as a third-party neutral for "two or more persons who are not" the lawyer's clients). 4. See, e.g., id. R. 3.9 (discussing the procedures a lawyer must follow when "representing a client before a legislative body or administrative agency in a nonajudicative proceeding"). 5. See, e.g., id. R. 3.8 (discussing the particular ethical responsibilities of prosecutors in criminal cases). 6. See WILUAMSIMON, lHEPRACTICEOFJUSTICE: A lHEORY OF LAWYER'S ETHICS 7-8 (1998). 7. Compare MODEL CODE OFPROF'LREsPONSffiIUTY Canon 7 (1980) (including zealous representation in the black letter rule), with MODEL RULES OF PROF'LCONDUCT pmbl., 8 & R. 1.3 cmt. [I] (2002) (discussing zealous advocacy only in the preamble and in comment sections). Despite such textual revisions, most lawyers continue to claim that their duty is to zealously protect and advocate for their clients. Thus, the culture of ethics may not entirely coincide with the letter of the law or the rules. 8. MODEL RULES OF PROF'L CONDUCT preface, at vii-viii (2002). 9. To view the full text of the Model Rules, as approved by the House of Delegates in February 2002, and the Model Rules, as proposed by the Ethics 2000 Commission, see ABA Center for Professional Responsibility, Ethics 2000 Comm'n, at http://www.abanet. orglcpr/e2k-report _ home.html (last visited Oct. 31, 2002). 10. Despite drafting rules that recognize lawyers as third-party neutrals, the Ethics 2000 Commission considered, yet declined, to draft ethical rules for lawyers representing clients in class action lawsuits. See Nancy Moore, Who Should Regulate Class Action Lawyers?, U. IlL L. REv. (forthcoming 2003). Bankruptcy lawyers also unsuccessfully lobbied for special ethical rules for their specialized practice.