If I start by telling you this column is about lawyers and ethics, many of you will think this will be the shortest column ever written. Lawyers have been the butt of jokes, criticism, and denouncements about their lack of ethics for centuries. Even William Shakespeare made a famous comment about lawyers in Henry VI: “ The first thing we do, let’s kill all the lawyers.”
Ethics: A Personal Matter
Drawing a Distinction Between Laws and Ethics
Sunday, April 27, 2014
Wow. The bard sounds more like a radio shock jock than the world’s greatest dramatist.
Having worked in the field of legal ethics for many years, I am painfully aware that my profession generates a minefield of potential ethics complaints. I do believe, however, that the overwhelming majority of lawyers are ethical.
Lawyers, in many instances, have gained a reputation as an unethical group because of the nature of the work they are asked to do. The line from the film comic classic Ghostbusters sums it up. When you’re in trouble, “Who you gonna call?”
Not your yoga instructor.
Lawyers are thrust into the middle of emotionally charged and financially costly matters, i.e., divorce and child custody, criminal actions, will contests, business disputes, and a multitude of other serious matters.
Most clients are not happy that they had to hire a lawyer in the first place. Then, many times, if they win, they ask, “Why did I need a lawyer at all?” As for compromise results, most clients think that anything less than a complete victory is a loss. And I’ve never met a losing client who said, “Good job, given the facts (or law).”
As in any discussion of ethics, it is important to make the distinction between laws and personal beliefs. Laws must be obeyed; ethical decisions that encompass only personal beliefs and moral judgments are up to the individual.
In the legal field, a good example of the difference between an ethical decision and a law or rule that a lawyer must obey is in the type of cases lawyers may or may not take. The California Rules of Professional Conduct (CRPC) govern the actions of all lawyers in the state. Along with sections of the Business and Professions Code, these are laws and rules that are mandatory.
CRPC Rule 3-200 clearly states a lawyer “shall not seek, accept or continue employment” if he knew or should have known that the client wanted to bring the case for the “purpose of harassing or maliciously injuring any person.” Personal revenge can never be a justification for a lawsuit.
Lawyers that violate Rule 3-200 have a legal problem, not an ethical one. The State Bar Court can, among other things, take away a lawyer’s license or suspend him from practicing law.
In contrast, when a client comes to a lawyer with a legal matter that the lawyer reasonably believes is not meant to harass or maliciously injure another person, a lawyer has a choice to take or not to take the case.
What if the lawyer concludes that her potential client has little or no chance of winning? She tells the client (verbally and in writing) her thoughts. The client says, “Doesn’t matter; I have the money; I want to give it a shot.”
The lawyer is faced with an ethical dilemma: Take the case and the client’s money, or turn down the case?
Is this situation any different than a stockbroker who tries to steer her clients away from a “bad” investment. Yet the client insists, “I have to have that stock.” The stockbroker makes the buy.
As self-righteous as it sounds, and probably is, I have never been able to justify taking legal fees for hopeless cases. After a thorough investigation, if I think a potential lawsuit is a loser (and a costly one at that), I will turn down the case. I tell the client why, usually in writing, and urge him to get a second opinion. There are many other attorneys who would take a case because it does not violate the Rules of Professional Conduct. They could point out that every day, across the country, cases are won that appeared to most experts as unwinnable.
Do I think that lawyers who take what appear to be losing cases are unethical? No. That’s the whole point of this and every other column I write. In the absence of a law or rule, no one’s ethical beliefs can override another’s.
What do you think?