Alex Keane is a Renaissance Scholar who graduated magna cum laude with a degree in Psychology and minors in Spanish and Management Consulting in 2016.
To the average citizen, corruption is as American as apple pie. When asked in a Gallup poll to rate the ethical standards of those in the legal profession, the American public rated lawyers very poorly, with only 21% responding that lawyers had high or very high ethical standards. Since 1976, the profession has never had more than 27% of the population think that it has high ethical standards—a mark worse than that of bankers. Rarely does the public fully consider the reasons why they hold lawyers in such low esteem. They, in their judgment of lawyers, forget the extent to which certain forces inherent to the profession beleaguer top practitioners, including the hypercompetitive nature of law firms, the pressure from multi-million dollar clients, a culture that prioritizes profit and results over ethics, and personal responsibilities like family and debt. The combination of these forces can make it seem impossible to go against the wishes of an employer. While it can certainly be said that there are valid concerns voiced by the average populace, Americans are too often confused by the concept of legal ethics, especially the division between morality and professional responsibility.
Understanding the history of legal ethics is paramount to understanding its application to the modern world. A topic that is now divided into two distinct categories once began as a singular idea. Both the philosophical considerations of the legal profession as well as rules for professional responsibility, which govern what a lawyer can and cannot do, were once one and the same. What began as a code written for lawyers, by lawyers, as a means to uphold an honest profession quickly devolved into a detailed outline of laws and statutes that had only a remote basis in true ethics. Rather, the rules adopted by the American Bar Association told this new breed of lawyers how much they could get away with. The split of these two standards of legal ethics can be readily seen through an examination of the professional responsibility codes in the United States over the course of the past 200 years. The vocabulary has noticeably changed from morally oriented words like “good” and “right” to those that merely hint at recommended “etiquette”, such as “may” and “should” (Shaffer and Shaffer 8). The increased profitability of the legal profession has been the main impetus behind this change.
During the turn of the last century, the growth of corporations provided a market for a deluge of new lawyers. Those who maximized profits were handsomely rewarded, and lawyers began to invent ways to bend the rules and find loopholes that best supported their clients. The weakening of the so-called “moral fiber” of lawyers was even addressed by Theodore Roosevelt during his presidency. In a speech to Harvard alumni on June 6th, 1905, Roosevelt proclaimed:
“This Nation never stood in greater need than now of having among its leaders men of lofty ideals, which they try to live up to and not merely to talk of. We need men with these ideals in public life, and we need them just as much in business and in such a profession as the law. We can by statute establish only those exceedingly rough lines of morality the overpassing of which means that the man is in jeopardy of the constable or the sheriff. But the Nation is badly off if in addition to this there is not a very much higher standard of conduct, a standard impossible effectively to establish by statute, but one upon which the community as a whole, and especially the real leaders of the community, insist.”
It seemed apparent that these lawyers needed more than just a simple code of ethics that was created and enforced by them. Over the course of the last century, many state and federal laws regulating behavior were created, but the public did not realize how foolish it was to expect lawyers—who make a living by finding creative solutions to legal problems—to follow another set of laws governing their personal behavior without any dishonesty (Hazard et al. 1). The Sarbanes-Oxley Act of 2002 is a prime example of recent attempts to reinforce this professional code with formal legislation. The act necessitates that lawyers report corporate fraud to the Securities and Exchange Commission, but was met with stiff opposition by the American Bar Association, showing “a disturbing gap between professional interests and societal values” (Rhode and Paton 629). This emphasis on adhering solely to legal precepts turned the focus away from philosophical considerations of the legal practice. Only in the last forty years have academics begun to tackle the important questions of the legal practice, a relatively brief time considering the age of the legal profession (Hazard and Rhode 1). It is for this reason that there is a dearth of knowledge in the general population of lawyers pertaining to actual ethics.
In addition, defending white-collar crime has become a go-to source of profit for most major law firms in the past decade (Ahmed). In light of the widespread impropriety in banking and corporate businesses, as well as the US government’s increased interest in prosecuting them, law firms are being hired more and more often to protect the reputation of these companies by representing the executives within them. With such large profits at stake, and such poor ethical training, it is no wonder that the forces pushing at lawyers cause them to act in unethical ways. These forces raise significant questions of how lawyers must conduct themselves in order to be considered ethical and how professional responsibility and legal ethics can be joined together once again. The most promising, feasible solution to these problems is increased education in the study of legal ethics. This would help lawyers adhere to professional responsibility rules and create their own ethical code in order to drive a cultural shift towards improving the expectation of moral behavior for a lawyer in the adversarial system.
The first responsibility codes were attempts to solve the problem of growing corruption in the legal profession. As early as the 1800s, the rapidly growing field of the legal profession was plagued by problems resulting from a lack of regulation and oversight. As Allison Marston, a lecturer at Stanford Law School, writes, “the legal profession had lost considerable prestige in the first half of the nineteenth century; bar associations had disbanded, and standards of admission to the Bar had plummeted” (474). Additionally, lawyers were able to practice law after becoming educated by studying under the tutelage of judges and other lawyers, rather than attending proper law schools. Ironically, the author of the first generally recognized code of ethics was one such lawyer. Bar association membership was not mandatory, and was uncommon in most rural areas. The absence of any cohesive form of oversight naturally meant that lawyers who brought “reproach upon the profession” were able to practice their crooked law because they, “not being members of the Association, [could] not be reached by any of the rules prescribed for its government” (Marston 487). In order to address these growing concerns and uphold the honor of the profession, certain members of the legal community—particularly Judge Thomas Goode Jones and Judge George Sharswood—created ethical codes to inform lawyers of the responsibilities of their positions. Jones’ famed 1887 Alabama Code was based on Sharswood’s 1854 Essay on Professional Ethics, and was one of the first professional responsibility codes to be created (Marston 472).
Despite its historical importance and influence on future legal codes, the work of Jones and Sharswood was only the first step of a lengthy journey to determine the best way to uphold the ethical responsibilities of the lawyer. The problem was now out in the open, but steps were not taken to adequately resolve it. On the national stage, even the American Bar Association “did not promulgate its own ethical code until twenty years after its founding” (Marston 476). By no means was professional misconduct absent from the actions of some of our country’s earlier lawyers, but the way in which the legal profession was viewed was different than it is today. There was still a portion of the population that thought ill of those in the legal profession, but the overarching sentiment was that the profession was one of honor and moral correctness, where the pursuit of justice was the paramount goal. These ethical considerations, which slowly began in the middle of the 19th century, soon accelerated at the turn of the century.
At the beginning of the twentieth century, it became apparent that the minor guidance provided by existing responsibility codes was insufficient. The rise of corporations and big business had created a new form of lawyer and thus created the incentive for an entirely different type of legal code. The 1906 American Bar Association Committee on Professional Ethics best expressed the arrival of this new type of lawyer:
“We cannot be blind to the fact that, however high may be the motives of some, the trend of many is away from the ideals of the past, and the tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood, or of personal aggrandizement. With the influx of increasing numbers, who seek admission to the profession mainly for its emoluments, have come new and changed conditions (Marston 477).”
The focus shifted from a profession that derived its honor and prestige from ethical and just dealings with clients in order to provide them with the tools to navigate the often complex and confusing law to one that emphasized profits and income. In his same speech to Harvard alumni, President Roosevelt noted that:
“Many of the most influential and most highly remunerated members of the bar in every centre of wealth make it their special task to work out bold and ingenious schemes by which their very wealthy clients, individual or corporate, can evade the laws which are made to regulate in the interest of the public the use of great wealth.”
The immense salaries offered to the lawyers were higher than ever before, and providing a motive to bend the rules and enable their clients to get away with as much as possible (Shaffer and Shaffer 2). A small minority of academics that studied legal ethics at this time noted this shift in focus, as it was the impetus behind most of the concerns they raised—many of which are still existent today. Writing in 1933, Indiana University professor of Law Hugh E. Willis decried the then-current status of lawyers by saying, “justice is made to depend upon the skill with which attorneys involved play the game” (273). Furthermore, he expresses his concern with the stagnation of meaningful advances in the reform and oversight of the self-regulatory practices for lawyers. Numerous other advocates have echoed these concerns over the past eighty-three years.
The growth of society at the turn of the century created an environment of constant change with which professional responsibility codes could not ,and still cannot, remain current. An ethical code inherently cannot cover all considerations and permutations of a situation. As Columbia Law School professor William H. Simon reasons, it is, by nature, either too rigid and constricting or too loose, and to some extent leaves the decision to the personal morals of the lawyer (67). Not only this, but the American Bar Association Model Code of Professional Responsibility is updated infrequently, and thus quickly becomes outdated. The preface to the most recent version of the code openly admits that since the original 1908 adoption of the code, only “a limited number of amendments have been adopted on a piecemeal basis” (Martyn, Fox, and Wendel 125). It also realizes in its preamble that many of the guiding canons are generalized from an “earlier era” and that “each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards” (Martyn, Fox, and Wednel 126). This raises a whole host of issues. First, having been created in 1983, this most recent version of the Model Code of Professional Responsibility openly admits to being outdated, which means that it has only attempted to be current with modern practices in the smallest way. In 2009, the American Bar Association published the Model Rules of Professional Conduct that completely do away with the ethical considerations present in the code of responsibility. Furthermore, the removal of the words “code” and “responsibility” and their replacement with “rules” and “conduct” provides further evidence of the change from ethical consideration to simplistic rules that are solely legalistic in nature.
Thus, the 1983 version of the Model Code of Professional Responsibility, with its few recent amendments, must be considered as the most recent version of ethical guidelines, because it truly includes some form of ethical considerations, as weak as they may be, in addition to a series of disciplinary rules. Furthermore, the statements made in the preamble indicate that many of the decisions are left to the lawyer, creating an emphasis on the need for each lawyer to be well trained in philosophical and ethical considerations. Additionally, the phrasing of the code only becomes mandatory when disciplinary rules are discussed. All ethical considerations are hedged with the word “should,” as opposed to the word “shall” that is utilized by the disciplinary rules. Rhode, a professor at Stanford Law School asserts that “such a rule-bound approach undercuts what should be [a legal ethics] course’s central messages: lawyers have responsibilities to the profession and public that transcend the letter of the law” (Rhode 50). Finally, a study conducted with lawyers showed that less than 5% of lawyers reported that they consistently act in accordance with the recommendation of the professional responsibility code (Freedman 38). This low adherence rate does not necessarily mean that a majority of lawyers act immorally in a professional sense, but rather that professional codes are outdated and not impactful. That being said, the freedom afforded by this mindset in addition to the self-regulatory nature of the legal profession make it easy to see how lawyers can skirt the rules.
The longstanding negative perception of the legal profession common across the country is not the sole result of the actions of a minority of negligent and immoral lawyers. Rather, it is made worse by the inaction of the majority of honest, hardworking lawyers to provide an effective solution to cultivate integrity. The national feeling towards lawyers can be accurately judged by looking at popular culture. Jokes ridiculing lawyers for their lack of morals have existed since at least the late nineteenth century (Marston 491). The involvement of lawyers in the Watergate Scandal of the 1970s soured countless Americans’ opinions of the legal profession (Rhodes 46). In the modern era, popular television show characters such as Saul Goodman of Breaking Bad and Better Call Saul are portrayed as crude caricatures of the immoral lawyer, furthering the negative stereotype of how lawyers operate.
The constitution’s focus on individual rights in the American adversarial system continues to fuel this negative perception by frequently putting lawyers into ethical and moral dilemmas that can only end in a negative perception. Defense lawyers in particular face a difficult challenge. They are held in what pre-eminent legal ethics scholar and professor of law Monroe Freedman calls a “trilemma,” where they are charged with knowing everything that the client knows about a crime, keeping this information confidential between themselves and the client, and at the same time being completely honest with the court (28). Knowing that a client is guilty and still representing them in an effort to obtain a verdict of innocence seems morally inappropriate to many people, and rightfully so. With respect to personal morality, it would be wrong to attempt to help a guilty person avoid their due punishment. However, as University of Calgary Law School professor Alice Woolley points out, the professional morality associated with the legal profession is distinct from personal morality (995). Providing the client with proper legal representation is the ethical requirement of the lawyer in this situation. If fulfilled, they have, in fact, acted in an ethical matter—it is the court’s duty to ultimately decide what is just. Personal morals often play into the decisions each lawyer makes, but their duties as an officer of the court add certain considerations (Raymond 2). This distinction is not understood or even considered by a majority of the American population. As a result, they often judge lawyers under the wrong framework of morality. This, in turn, colors the generally negative perception of the profession.
These negative perceptions hurt the legal profession not only in name and prestige, but also discourage the layperson from seeking legal counsel. If the perception of lawyers is generally negative, a certain segment of the population will avoid seeking legal counsel out of distrust or fear of being swindled. However, providing legal counsel to all who require it is considered one of the major ethical duties of the lawyer under current responsibility codes (Freedman 119). Lawyers must then work diligently to do all they can to reverse this negative perception so as to aid the public and fulfill their ethical obligations.
Change must be made to the legal education system in order to offer a more complete understanding of ethical issues. This can be achieved by providing more real world experience through pro bono work, increasing philosophical education, and informing potential lawyers of the limitations of the professional responsibility code. These skills will be instrumental in aiding students in forming their own value system, which will guide how they act in situations not dictated by the code. Many legal ethics textbooks praise the rise of legal ethics training in law schools since the mid nineteen sixties (Hazard 1). However, the focus of many of these texts and classes make the same error as the codes of the American Bar Association, in that they are too focused on following the letter of the law rather than providing a true ethical education. Increased education of the limitations of the code in conjunction with real world training would provide future lawyers with the ability to spot moral quandaries and supply them with the skillset to determine how to properly act in these situations. Improved ethical behavior that results from a more holistically educated lawyer will in turn negate the effects of previous unethical behavior by lawyers and usher in a sweeping change in the way Americans think of the legal profession.
Creating more rules or laws would not be an effective means of driving change across the entire profession because laws are generally either too restrictive and do not allow the lawyer to do their job, or too loose and allow the lawyer to take advantage of loopholes. The status quo solution has been to attempt to drive change via legislation. Yet, as seen in the Gallup poll, public perception has not changed. This may be partially due to the public’s failure to understand the pressures brought on by the adversarial system, but certainly a large portion of the negative perception is due to corruption and other ethical violations rather than misunderstanding the defense of a criminal. As was demonstrated earlier, the American Bar Association pushes back strongly when faced with more legislation. Trying to go against over a hundred years of tradition of self-governance would be too difficult of a battle. Likewise, it is simply not feasible to regulate the salary of lawyers—another great motivation behind misdeed—to eliminate these pressures. It becomes clear that our most promising option—increased professional training—allows for traditions to remain while still ensuring meaningful change.
The legal profession is a powerful, well-established profession. Society is dependent on those with the knowledge and skills to successfully navigate the law in almost every aspect of life. From criminal defense, to intellectual property, to estate law, and everything in between, lawyers have the ability to influence a great portion of our society. It is paramount that they, as a profession, act in a manner that is ethical and just so as to uphold the law of our great nation. In the status quo, the ambiguities inherent in a professional code that attempts to govern their behavior provide too many opportunities for even well intentioned lawyers to go astray. The standards for ethical education must increase greatly to provide new generations of lawyers with the skills and knowledge to avoid the pitfalls that have befallen previous generations. If there ever is to be change in the actions of one of the most important and powerful segments of our society, it must begin in and be driven by the classroom.
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