Professional Responsibility
Every student of law is expected to know and follow the profession's ethical rules. This expectation is based on a number of assumptions: (i) that a lawyer's work is distinguished from other forms of work; (ii) that the accepted practices of a profession can be codified in a set of rules that can be used as the basis for sanctions on those who go too far; and (c) that the prescribed set of rules embody and convey a sense of professionalism that lends moral legitimacy to the practices carried out in the name of the profession.
To what extent can a set of rules constitute the basis for an ethical life?
Lawyer Ethics Code
Drafting in the 21st Century
Professor Nancy J. Moore, Boston University School of
Law
Deciphering
Professional Codes
Professor William James Buchholz, Bentley College,
Waltham, Massachusetts
Don't
Lean Too Heavily on the 'Code of Ethics'
"Ethics Matters," Carlton Vogt, InfoWorld
Commentary
"Issues of professional responsibility should not be resolved as if they were issues of statutory construction." [Irving Younger, Commentary, 1 Geo. J. Leg. Ethics 285, 287 (1987)]
"Ethical codes oversimplify and numb the attorney to the hard questions." [Jeremy M. Miller, Back to the Future: Lawyers and Legal Ethics in the Past, 17 Western St. U. L. Rev. 17, 18 (1989)]
"Laws and the Rules of Professional Conduct establish minimal standards . . . ; they do not define the criteria of ethical behavior. Persons are not 'ethical' simply because they act lawfully or even within the bounds of an official code of ethics. We all know that people can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or Code. That is why ethical persons measure their conduct not by rules, but by basic moral principles such as honesty, integrity and fairness. They do not walk the line of propriety. They do more than they have to and less than they are allowed to." [Michael Josephson, Ethics and the "Good" Lawyer, Phi Alpha Delta Law Fraternity International 7 (Summer, 1988)]
"[It is not rules but] uncertainty, doubt, perpetual wrestling with the mystery of our final destiny, mental despair, and the lack of any solid and stable dogmatic foundation, [that] may be the basis of an ethic." [Miguel de Unamuno, The Tragic Sense of Life 261 (Dover, 1954)]
"The moral life . . . is not simply a matter of following moral rules and of learning to apply them to specific situations. The moral life is also a matter of trying to determine the kind of people we should be and of attending to the development of character within our communities and ourselves." ["Ethics and Virtue," 1(3) Issues in Ethics 2 (Ctr. for Applied Ethics, Spring, 1988)]
"I was much troubled in spirit, in my first years on the bench to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach the land, the solid land of fixed and settled rules, the paradise of justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience . . . . As the years have gone by, and as I have reflected more and more I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire and new principles are born." [Benjamin Cardozo, The Nature of the Judicial Process 166-167 (1921)]
"In the end, every ethical rule must be tested against real stories." [Stephen Gillers, Taking L.A. Law More Seriously, 98 Yale L. J. 1607, 1617 (1989)]
"Our morality is more than adherence to universalizable rules; it also encompasses our experiences, fables, beliefs, images, concepts and inner monologues." [Stanley Hauerwas, Vision and Virtue 35 (Notre Dame, Indiana: University of Notre Dame Press, 1974)]
In comparison with abstract theoretical speculation, ethics ... is a domain peculiarly and constitutively linked with particularity, a domain in which general maxims are pointless unless instantiated and exemplified in concrete actions or behavior patterns." [Fred R. Dallmayr, Critical Encounters 193 (Notre Dame, Indiana: University of Notre Dame Press, 1987)]
"No art that does not go beyond learned rules is of any interest; no life lived to formulaic unity will commend itself as a model.
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"The paradigmatic form for law, trial in court, reinforces the necessity to exalt the role of rule. In the paradigm, the judge hears conflicting parties and decides upon the evidence which they present. The evidence is related to his decision through his selection of a rule. If the judge looks at who the parties are, he is not looking at the evidence. A judge who takes into account who the parties are will favor one or the other. A biased judge is no judge at all.
If the judge looks at the rules, he is acting in accordance with the paradigm, which requires two persons to be in controversy, and a third person, who prefers neither, to decide. The judge indicates his impartiality, he proves his good faith, by looking not at the persons but at the rule. The rule is neutral, 'above' the contestants and the judge.
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Indispensable but insufficient to the legal process, living only in the minds of persons and applied only in the interaction of persons, rules cannot be the sole or principal object of legal study, legal history, and legal philosophy without distortion. What is distorted is the place of persons in the process. An individual, unless he or she is expressing a whim, must articulate a rule when arguing or deciding a case. But the process consists in the interplay of the persons forming the rule with the persons applying it and the persons submitting to it. . . .
Abandonment of the rules produces monsters; so does neglect of persons. Which monsters are worse I will not argue." [Warren Lehman, Finding Our Way Back, Amer. J. Juris. 229 (1984)]
"Of course it can be pointed out that there is nothing odd about the emphasis on the centrality of rules for morality. Most moralities are characterized by a stress on the importance of rules, even though they may disagree about content or the scale of priority. . . .
It is certainly not my intention to deny the significance of rules. Yet I wish to distinguish between the general existence of rules in a society and the marked emphasis upon them in modern morality and theory. Not all societies emphasize rules to the extent ours does. Aristotle seldom mentions them; and although lawlike pronouncements have a prominent place in the Scriptures, they are certainly never treated as an end in themselves or as capable of independent justification. . . .
Our relatively recent fascination with rules draws on the promise they seem to hold for the impersonal justification of our moral behavior. Rules give the appearance of ensuring the objectivity we otherwise find lacking in our individual decisions and judgments. Accordingly, moral reasoning attempts to justify any particular judgment by appeal to a more universal rule or principle to which any rational creature must adhere. Thus morality is thought to acquire the unbiased quality associated, mistakenly perhaps, with legal process and therefore to secure the objectivity necessary for moral agreement.
Such a picture of the moral life fails to do justice to the variety of rules and their function in our actual morality. While rules are present in many activities, their features in one area may be lacking in another. Thus rules play a different role in games than in scientific investigation and different yet in etiquette, law, and religion. Moreover the force of some rules is quite different from others. Some rules restrict, others regulate, and still others grant permission. . . . [S]till others seem to be so inherent in everyday practices we never think of them as rules. Further, their scope differs. Some, we believe, apply to all (these are not necessarily the most general), while others apply only to those performing certain functions.
Plato and Aristotle considered rules to be secondary to the virtues, which served to direct us to their true end, the human good. In our own day, however, questions concerning our ultimate end ('telos'), or what characterizes 'the good life' have been dismissed because they are not subject to rational argument. Rules in our society, therefore, are not derived from some fundamental conception of the human good. They are the basis of morality only insofar as they represent a consensus about what is necessary to ensure societal peace and survival. . . .
The concentration on 'obligations' and 'rules' also has the effect of distorting our moral psychology by separating our actions from our agency. . . . Communities teach us what kind of intentions are appropriate if we are to be the kind of person appropriate to living among these people. Thus questions of what we ought to be are necessary background for questions of what we ought to do. The concentration on obligations and rules as morally primary ignores the fact that action descriptions gain their intelligibility from the role they play in a community's history and therefore for individuals in that community. When 'acts' are abstracted from that history, the moral self cannot help but appear as an unconnected series of actions lacking continuity and unity. . . .
[W]e live in a world of . . . conflicts and we cannot negotiate that world unless we are trained with virtues sufficient to sustain us. . . . But the attempt to develop an unqualified ethic, with the attending stress on rules and obligations, has resulted in a failure to stress exactly those virtues we need to live in such a world. From the perspective of an unqualified ethic, it is assumed that only when we answer the question 'What ought we to do?' can we answer 'What ought we to be?'" [Stanley Hauerwas, The Peaceable Kingdom 19-22 (Notre Dame, Indiana: University of Notre Dame Press, 1983)]
"[T]he function of law, legal argumentation and concepts (e.g., rights), is different from the function of ethics, ethical argumentation and concepts. In Wittgensteinian terms, they are two different language games. This assimilation of functions entirely ignores other uses of the law, such as its service as a socially acceptable and effective means of coping with conflicts of interest and of enforcing socially desirable rules and policies. To put it bluntly, we go to lawyers when we are in trouble and not when we need general advice on how to live. Law usually arises out of conflicts, of interests, for example, and provides a social mechanism for resolving conflicts. Ethics, on the other hand, arises out of and is concerned with much wider and deeper perplexities about life and our relations with each other. In general, the failure to bear in mind the essentially different functions of the two kinds of discourse creates a great deal of confusion . . . and makes for bad ethics and bad jurisprudence." [Ladd, "Legalism and Medical Ethics," in J. Davis & B. Hoffmaster (eds.), Contemporary Issues in Biomedical Ethics (1978)]
"[T]he history of the American bar raises significant doubts whether the existence of formal sanctions (rules) has made much difference. Discipline has rarely been imposed. With the exception of highly visible conduct that affects the other members of the group directly, such as "ambulance chasing," the behavior for which discipline has been usually imposed, such as embezzlement or fraud, is also subject to criminal sanctions. There is little evidence that the bulk of the professional standards were adhered to because they were formally announced professional standards rather than because the behavior was prohibited by the criminal law, because it was naturally expected by clients (as, for example, voluntary retention of confidences), or because it was part of the expectations of the immediate peer group of lawyers." [Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 Amer. B. Res. Found. J. 954, 958]
"The effectiveness of promulgated standards of behavior depends on a combination of coercion (legally imposed sanctions), informal sanctions (peer pressure), and individual voluntary compliance. The categories obviously overlap. Compliance with the coercive system of the criminal law depends not only on the existence of punitive sanctions but also on the general acceptance of the substantive provision by those affected. Voluntary compliance is essential; in its absence the regime is that of a police state. At the other end, individual voluntary compliance rarely takes place in isolation. The responses of an individual's reference group to transgressions of articulated standards play a large role in the extent of the individual's compliance with those standards.
The conformity of the members of a defined group to standards defining proper behavior thus depends on the clarity of the standards, the homogeneity of the group, the communications network within it, and the extent to which the standards are consonant with commonly shared values and are positively and negatively reinforced. The standards will be ineffective if these conditions are not met. The members of the affected group may not have common values or ideologies. The professional tasks or environments may be too dissimilar for the application of a single set of standards throughout the group. The communications networks by which the standards are transmitted within the group may break down because of the sheer numbers of members or the lack of frequent contacts among them. Nonprofessional pressures may loom more important than professional pressures in the decision, by any member, of whether to abide by the standards.
Where there is concern about whether lawyers are properly conforming to professional standards, there will be a tendency to shift from a system that depends on informal sanctions and voluntary compliance to a coercive system of rules whose breach triggers legally imposed sanctions--that is, the likelihood increases that punitive regimes will be instituted.
It is highly doubtful that the above conditions for general voluntary compliance with the professional standards existed throughout the bar for any significant length of time over the past century and a half. The literary expressions of high professional ideals and standards and the biographies of individual noble lawyers are matched throughout by laments about the low standards of lawyers in general.
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If the abandonment of a separate body of ethical principles were to mean no more than the end of nostalgia and myth, the body would be well buried, and quickly at that. There is more to the concept, however, than fantasy or platitudes ignored in the real world.
First, disciplinary rules, like penal codes, set minimum standards. Principles of ethics set achievement standards. Minimum standards should not and will not suffice for those members of the profession who set their sights higher than the avoidance of discipline. Professional standards have multiple functions: setting minimum standards, informing members of the bar about recommended behavior and reinforcing those whose proposed course of conduct is higher than the minimum and who have no other frame of reference on which to rely. Not all professional choices made by lawyers are between conduct that leads to disbarment and conduct that avoids it. More than one lawyer will wish to choose that conduct which conforms to what his or her peers regard as the highest, not the minimum, form of professionalism.
Second, the task of drafting a disciplinary code today to govern the professional behavior of tomorrow is manageable in a period of moderate change. That is not our present condition. As stated above, the legal profession is swelling in numbers; its membership is young; its socializing institutions have weakened; the public increasingly participates in the determination of appropriate professional behavior; the local orientation of the bar is diminishing. The demographic and structural conditions of today's legal profession necessarily play a large role in the determination of the professional standards laid down today; major changes in those conditions will also necessarily affect those assumptions and the codes built on them. It would be fortuitous indeed if today's regulatory system were able to comprehend the macro changes that are likely to occur in the next two decades in the ways in which lawyers practice their profession. More general, aspirational precepts may be useful. Non-mandatory, they can serve as goals of professional behavior more flexibly than can a specific regulatory code.
The Model Rules do not perform this function. They have the inherent limitations of rules that are enforced by severe penalties. The lawyer who seeks enlightenment about preferred (above the minimum) professional behavior will rarely find it in the Model Rules. At the same time, other features of the Model Rules, perhaps unintentionally, make possible the creation of new, more narrowly constrained sets of aspirational professional standards." [Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 Am. Bar Res. J. 953]
"Historically, codes of ethics have been used to state the ideals of a profession or field, to legitimate the profession or field in the face of skepticism or uncertainty, to regulate the practices of its practitioners toward each other, and to delineate the relationship that should obtain between a practitioner and the patient or client. The most jaded view of professional codes is that, in the end, they seek to insulate professionals from outside influence and to establish a profitable monopoly on their skills. A kinder view is that they seek to define the nature of a profession, and to establish some internal rules for regulating the practice of the profession. Almost inevitably, however, they arise as a response to internal tensions and external pressure." [Daniel Callahan, Should There Be an Academic Code of Ethics? J. of Higher Educ. 335-344 (May/June 1982)]
"[N]o written code is capable of resolving the tensions between ordinary and role morality. Codes should be seen as simply one part of the black letter law, a proper object of legalism and casuistry. A lawyer caught in a conflict between role obligations and ordinary morality--a conflict heightened by the fact that the client is paying the fees--is inevitably tempted to view the Code as telling him what he can get away with. Indeed, since the Code requires zeal on behalf of the client, it can be argued that anything the Code does not forbid the lawyer from doing for the client is required. In practice, I suspect that any code would be read this way, whether it mandated zeal or not. . . . This, however, is a simple-minded view of morality. It suggests that a person is good who does not break the rules; the only question then concerns degrees of goodness, which can be left to the angels to decide.
Moral life is not like that. A person may do things which are within his moral rights, but which nevertheless would open him to moral criticism." [David Luban, Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics, 40 Md. L. Rev. 451, 459 (1981)]
Commentary
The ethical rules of lawyering are as fundamental to the practice of law as the rules of baseball to the game of baseball. The rules of a game, ethical and otherwise, provide a context or space within which a game is defined and played, but rules are not, and can never be, the focus of the game. Rules, whether ethical rules of the legal profession or rules of play for baseball, provide a structure, but no baseball player mistakes baseball's rules for play in the game. Ethical rules say little about the virtues, character, and skills of an accomplished lawyer.
Games must be played and professions practiced according to rules, but when rules dominate the game, they diminish the pleasure and aesthetics of play. When rules of the game become the focal point, the game changes character. When rules are an issue, there is a cessation of "play," an interruption in the flow of the game.
A baseball player need not worry about rules, he just "plays" the game. The outcome of the game (winners and losers for statistical purposes) are determined according to rules, but the quality of play and the game itself are always one step beyond rules. Fundamental to baseball and the practice of law is an ability to follow rules and transcend them. Imagine an anthropologist observing an activity she calls baseball. She determines to learn the game. She watches for regular features and repetitive patterns. An anthropologist could "learn" baseball. But the anthropologist remains a stranger to baseball, even as observation and description of the rule-bound features of play produce a kind of understanding.
Contrast the anthropologist's knowledge of baseball with that of children who play baseball. Children learn the rules of baseball by being in the game. They learn the rules so they can be chosen to play. A player worries about skills--hitting the ball, catching it, running fast--rather than rules. Baseball comes alive in the play of the game; performance requires only a rudimentary knowledge of the rules.
A law student learns rules to get into the game, to become skilled in legal practices, and be acknowledged as a "good player." The law school approach to professional ethical rules is that of the anthropologist who studies the rules but does not play the game.
An exception to this observation about baseball and rules is that umpires are, in a sense, special players, specifically delegated the task of knowing and enforcing rules. But even umpires are in the game in only the most limited sense; they are not on the roster of players. Umpires make it possible for players to go about the game without constant and conscious reference to the rules by which the game is played. Umpires worry about rules while the players play the game.]
confronting lawyers." [Luban, Calming the Hearse Horse, at 462]
