Monday, March 12, 2007

Question & Answer With Dixie Yid - Lawyers & Ethics

(Illustration courtesy of Unm.edu)

A Simple Jew asks:


Fundamentally, the practice of law deals with ruling on what is right and wrong. I once asked a friend who was a lawyer whether he had to take classes in ethics in law school. My friend responded that aside from some brief instruction on the ethics of not to over-bill clients he was not taught anything on this subject.

Don't you find it highly ironic that a lawyer, a person who will determine right or wrong, has no more training in ethics than the common man?

Dixie Yid answers:

Good questions. Here are a couple of thoughts:

One is regarding the idea that an American attorney's practice deals with ruling on what's right and wrong; I'm not sure many attorney's view their role that way. That might be a better description of a Rav's job! An attorney would probably say that a better description of his job is to help his clients understand what is legal and what is illegal.

Another thought is that, unlike your friend's law school, my law school does require each student to take a 1 semester ethics course (taught by a frum professor!), not merely a few hours on how not to overbill. (And overbilling is just the tip of the iceberg about what goes on with billing.) They get into other basic issues like what to do if, after you've made certain representations to the court, you find out from the client that they weren't true. What are your obligations?

In general, however, American lawyers don't really see themselves as moral guides for their clients. So what, if anything, stops an attorney from representing clients who deserve to lose, whether it be in criminal or civil issues? One thing attorneys must do is sign every motion they make to the court, stating that the motion they are submitting is legitimate, and not frivolous. I think the test most people who want to be honest use is: Is the argument that I am about to make at least somewhat legally cognizable? If not, I think good attorneys would not make the argument.

I guess the way I would answer you is that you should not look to your attorney for moral guidance about what's right and wrong, but rather about what is legal and what is not legal.

Although in the formation and argumentation about law, there is a place for morals. They serve as the basis for a lot of the law, even today in our secular society. When a judge is deciding on how to rule in a case, he looks to what social policy goal is best served by whichever rule he picks.

An example: A contract is only binding if both sides give something in exchange for the other party's promise. That something is called "consideration." And if that consideration is something that is considered clearly morally wrong (or criminal), then the contract is void. For instance, if A takes out a contract on B's life by hiring hit-man C, by giving C a $10,000 down-payment before carrying out the job, that contract is unenforceable by secular law. If C backs out because he becomes a baal teshuva, and A sues him to either complete his contractual obligations (!) or return the deposit, American law says that he doesn't have to because the contract is void as a matter of public policy. It's an extreme example, but it illustrates the point that morality is the basis for much American law.

In the end though, I think that despite the major role public policy and morality play in the formation of the law, the modern attorney's role isn't to decide what's right and wrong, but it is to advise his clients about their legal rights and obligations.

As a side point, it is fascinating to study the similarities and differences of how halacha treats various types of situations and how American law does. But that's a topic for another day!

13 Comments:

At March 12, 2007 at 10:18:00 AM EDT, Anonymous Current Law Student said...

This is no longer true (and I wonder if it ever really was). Most ABA schools have a mandatory ethics class. Most States have a mandatory ethics reuirement which is usually fulfilled by taking the MPRE (mulitstate professional responsibility exam). There are Model Rules of ethical conduct that are made by the ABA and adopted by each state. There are state ethic committees. Ethics is a big deal in the legal profession and most attorneys that I know take on the responsibility with a sense of pride and true integrity.

 
At March 12, 2007 at 11:05:00 AM EDT, Anonymous Bob Miller said...

I would rather that the Jewish lawyers-in-training and practicing lawyers took their ethical direction and training from rabbonim steeped in mussar and/or chassidus and not from law professors.

 
At March 12, 2007 at 11:10:00 AM EDT, Anonymous Anonymous said...

Bob Miller: Sure. Ethics which isn't rooted in mitzvoys can easily be perverted and crooked.

 
At March 12, 2007 at 11:40:00 AM EDT, Anonymous Anonymous said...

Chabad in Manhattan offers Continuining Legal Education Classes (CLE) given by frum people such as Prof. Aaron Twerski

 
At March 12, 2007 at 11:55:00 AM EDT, Anonymous Honest Attorney said...

Actually, all ABA accredited law schools require students to take a full semester course on ethics, and most offer advanced seminars beyond that. In addition, every US jurisdiction requires lawyers to be bound to a code of professional responsibility, and violations of those canons can result in suspension from the bar, among other penalties.

It is true that what is legal is not identical in all cases to what might be ethical in a given situation. But while many lawyers will draw a firm line, and counsel their clients only with respect to the former, plenty of lawyers will point out to clients that certain conduct, while technically legal, may not be entirely ethical. I've known attorneys to resign from representation of a client where they felt they might be condoning or participating in unethical conduct, even where such conduct might be legal. Each lawyer must be guided by his or her own conscience in determining who to represent and what positions to advocate. This may at times put an attorney into a difficult position -- after all, they are paid handsomely for their services -- but Hashem did not put us here on earth only to deal with the easy situations.

As for the law itself, most of American law is rooted firmly in ethical and moral concepts. Our adversarial system is built on the notion that the courts are more likely to arrive at the truth, and at an ethically correct outcome, where each side is zealously represented by counsel. However, even zealous representation has its limits, and attorneys who play fast and loose with the facts of a case often do so at their own professional peril.

In my experience, being recognized by the court as holding oneself to an extremly high ethical standard serves one incredibly well professionally. Judges and juries are more apt to give credence to an honest lawyer, and I've won numerous cases even where I openly put forward (and dealt with) facts that were perceived as being not exactly helpful to my clients. This is unfortunately something many young attorneys never learn: you cannot hide "bad facts," and you must deal with the law as it is (or argue persuasively for a change in the law). When you conduct yourself dishonestly in court, you will in all likelihood be exposed either by opposing counsel or the court itself. In close cases, this can be fatal to your client's cause, and to your own professional reputation.

Most attorneys understand that their livelihood is completely dependent on their professional reputation. And we all have to live with our conscience. Every day we face difficult decisions. There is nothing inherent in the legal profession, as compared to pretty much any other, that requires attorneys to be any less ethical. I've known literally hundreds of attorneys, and only a very tiny minority are in any respect dishonest or unethical.

 
At March 12, 2007 at 1:28:00 PM EDT, Blogger DixieYid said...

Honest Attorney and Current Law Student:

Great comments. I'm learning a lot. I vote that the next legal question should go to our resident trial lawyer, Honest Attorney.

I can only speak for what goes on at my law school, where ethics is emphasized like I mentioned to ASJ.

One other addition, not only can one's professional reputation be affected by unethical behavior, but in extreme circumstances, the court may sanction an attorney who uses the court system abusively by filing frivolous lawsuits that may only be designed to harass the other side.

In the Federal Rules of Civil Procedure, Rule 11 provides for sanctions against attornies who engage in this conduct. Sanctions are very rarely used by the court but it is a deterrent that is out there.

Great discussion though.

-Dixie Yid

 
At March 12, 2007 at 1:53:00 PM EDT, Anonymous Current Law Student said...

So what, if anything, stops an attorney from representing clients who deserve to lose, whether it be in criminal or civil issues?

Well my personal approach to this difficult question is that if he deserves to lose then he will lose. I have the right to assume that the court will reach the correct decision. My job then is to make sure that the client doesn't lose more than he should. Also, since the system operates on the assumption of 'innocent until proven guilty,' the defendant has the right to make the plaintiff prove their case.

The Model Rules (and other ethical rules) tell a lawyer when he must not represent a client and when he may refuse to represent a client. I am sure there are many ehrliche laywers who represent criminals and crooks and know when they have to decline a job and when they can take it on.

This is certainly an entertaining topic for lawyers and nonlawyers, but everyone should bear in mind that it's a very nuanced topic and gross generalizations are counterproductive.

 
At March 12, 2007 at 2:02:00 PM EDT, Anonymous Current Law Student said...

Bob:
You raise an interesting point. The lawyer's job is to deal with din (strict judgment - sheli sheli, v'shelach shelach). I don't know of any part of American law that instructs lawyers or litigants to make a pshara. In contrast, the Gemara in Sanhedrin has a discussion on pshara and says that every dayan should start the court case by lauding pshara.

Furthermore, there is the issues of mussar and chassidus and lifnim m'shuras hadin. Certainly a heimishe lawyer doesn't have to instruct his goyishe client to act in such a way, but should the lawyer even represent and associate himself with such a case? And what if the client is Jewish?

These questions are a lot of fun to deal with and Steven Resnicoff and Michael Broyde do tackle the issues in law review articles that they wrote. Again, this topic is quite nuanced and gross generalizations are not productive.

 
At March 12, 2007 at 2:18:00 PM EDT, Anonymous Bob Miller said...

"Furthermore, there is the issues of mussar and chassidus and lifnim m'shuras hadin."

Any lawyer who doesn't have his head screwed on straight will find ways to twist the "din" aspects themselves.

 
At March 12, 2007 at 2:53:00 PM EDT, Blogger DixieYid said...

On this topic; one nice thing about the firm I work in by day is that they decline to litigate about 10-15% of the cases that are brought to them (the firm represents plaintiffs). These are cases that deserve to lose on the merits. It may be a unique case because it is a volume practice, but this allows the attornies and staff to focus on the cases where there is at least some legitimate argument to be made on our side. If there is indeed an argument that can be made, we do make it, whether by summary judgment motion or at trial, but there are clear standards in the cases the firm takes on.

This fact significantly increases the respect and cooperation we get from the defendants and the court, since people have generally learned that when we bring a case, it is a well reasoned, serious argument that they can expect from us.

Current Law Student: I like the point that you made when you said, "my personal approach to this difficult question is that if he deserves to lose then he will lose. I have the right to assume that the court will reach the correct decision. My job then is to make sure that the client doesn't lose more than he should."

That approach seems like it'd help with some seperation between "what I would do if it was up to me," and one doing his job properly as an attorney.

-Dixie Yid

 
At March 13, 2007 at 5:34:00 PM EDT, Anonymous Honest Attorney said...

I guess the real question would be: how much separation should there be for an observant Jew?

You need to remember that the ethical rules are merely a baseline no attorney may transgress without risk of approbation or more severe penalties. But there is nothing mandating that an attorney accept this baseline as the only measure of appropriate conduct. Many aspects of our society contain baseline rules, but observant Jews consistently hold that, as the Hebrew National advertisement goes, "we have to answer to a higher authority."

I realize this would present obstacles to career advancement for many attorneys, but that's one of the many struggles we necessarily have to engage in as we seek to find the appropriate balance between Torah observance and making our way in the world at large. I don't pretend to have the magic answer, because there is none, but I think it's at least worth asking the question: in what way is it right, with respect to my faith, to separate out what I might do in accordance with the dictates of Judaism from what I might do as an attorney?

It seems to me that one of the radical, revolutionary aspects of Judaism is precisely that it teaches that there is none other than the One, that we cannot separate out the secular from the sacred, that we are called to be something more than a people who take an hour a week to pay lip service to Hashem. There are, to be sure, plenty of areas where there is no real conflict, and where we can do our jobs as attorneys without any crisis of conscience. But I think the notion of separating out what we would do as individual Jews, and what we would do as members of the tribe of lawyers, is problematic. Ethics cannot for a person of deep, abiding faith, be checked at one's door on the way to the office.

 
At March 13, 2007 at 8:24:00 PM EDT, Blogger DixieYid said...

Honest Attorney:

Great points. I agree 100% that one can't sepperate himself, leaving his Yiddishkeit at the office door.

But it must be recognized that there's a very wide chasm seperating the Yiddishkeit-at-the-door approach from acting on the highest level of standards that you as a Jew would hold to personally.

For instance, you said:

Well my personal approach to this difficult question is that if he deserves to lose then he will lose. I have the right to assume that the court will reach the correct decision. My job then is to make sure that the client doesn't lose more than he should. Also, since the system operates on the assumption of 'innocent until proven guilty,' the defendant has the right to make the plaintiff prove their case.

I read you as saying, in part, that since the system operates under "innocent until proven guilty," you can serve the role of making the plaintiff make his case, even if you personally think the plaintiff should win on the merits. That doesn't stop you from being the one who the defendant avails himself of to do that.

That means that there's a professional separation between what you view the ideal result being and who you decide to represent. Just because, in your opinion, your client is not likely to win on the merits, does not mean that you cannot be retained as his counsel, if there's a somewhat reasonable argument to be made for him.

Again, maintaining a professional difference between what a Jew would do as a Jew personally and what one does in the course of his job is not the same thing as "checking your Yiddishkeit at the door." There's a very wide space in between those two approaches and the line where being a lawyer does actually conflict with Jewish values is somewhere in between.

Again, great posts!

-Dixie Yid

 
At March 14, 2007 at 2:34:00 PM EDT, Anonymous Honest Attorney said...

Thanks, Dixie Yid. Though I should point out that the quote you attribute to me is actually from Current Law Student (though I endorse the concept).

I think we are clearly in agreement. My point in my last post was really aimed solely at the notion, which I thought I was taking from your post, of separating out our individual values and ethics (i.e., for observant Jews, their adherence to all things Torah), from our values and ethics as members of the legal profession.

I think the very notion of separating those things is a bit dangerous for any religious person, but especially for an observant Jew (or one striving to become an observant Jew, for that matter). The very incipient act of separation in one's mind can open up a chasm pretty quickly. It also contradicts what are to me fundamental principles concerning the error of drawing lines of separation between the secular and the sacred.

However, there does not need to be any conflict. At least, there is none inherent in the act of refusing to separate. Just by way of example, to me, I can serve both secular and sacred by representing a client who, though he may well not have the best arguments on the merits of the overall matter, still has some good and valid ones with respect to both interim issues leading up to the decision of liability versus exhoneration, as well as issues informing the decision as to what damages or other remedies are warranted upon a finding of a legal violation.

But that does not mean that there can never be any conflict. Being a cog in the vast machine that is our system of justice, just putting one's head down and doing one's "job" as an attorney, is not -- and this is only my own personal opinion, in terms of the standards I apply to myself -- the end of the matter. There are, to me, times when my values (which are increasingly informed by my Yiddishkeit) do not permit me to represent certain clients, and in those cases, I cannot in good conscience separate things out and do it anyway as a member of the bar simply because the code of professional responsibility may permit it.

Let me give you a concrete example: I used to practice at a major Wall Street firm. My niche there was representing major financial institutions that had gotten into trouble with regulators or law enforcement (or that had discovered things that could get them into such trouble). I had no problem at all representing such institutions, no matter how bad the conduct, provided that they demonstrated to me a sincere interest in ferreting out the bad conduct, including allowing me to conduct an intensive internal investigation, and ensuring that all wrongdoers were brought to light, ejected from the firm, and that all assistance necessary would be provided to the government to prosecute or take regulatory action against these individuals, even if in so doing, the institution itself might be exposed and have to "take a hit."

Most of the time, this was not a problem. Most of the time where it might have been a problem, I had the backing of my extremely powerful law firm in insisting on these things. But eventually, a situation came up where an extremely lucrative client had a group of directors who were adament that the investigation needed to be somewhat controlled, that certain senior executives needed to be protected by curtailing the investigation. My firm refused to back me, and I resigned, from the matter, and from the firm. At tremendous personal cost.

I've recovered quite well from that incident, though I no longer am engaged in that particular practice speciality. I agonized over this issue for a long time before I made it, and raised it with my colleagues. This was a "gray" area in terms of strict legal ethics, and I never denied that it likely was *permissible* under the applicable code of ethics, falling as it did under zealous representation of a client. But this was an instance where my own values -- adherence to truth and insistence on all wrongdoing being exposed -- conflicted with professional values (which in this instance, were of the sort of, "what we don't know, we aren't bound to disclose" combined with "and anyway, we are ferreting out wrongdoers and cooperating with the government, we're just not going to dig as deeply as perhaps we could if we really pushed harder").

I never accused anyone at my firm of being unethical, because technically they were not, according to the code of professional responsibility. I simply was not personally going to participate in what I viewed as coming too close to the line of a coverup. I felt personally that I could no longer make representations to the government that we were fully cooperating (necessary to convince them to go lightly on the institution), knowing as I did that we perhaps might have uncovered evidence that the wrongdoing in question went higher up the ladder than we were disclosing, or even that we may have found other, unrelated wrongdoing.

I still hold the former colleagues who continued on that case in the highest regard as attorneys, and would have no qualms about recommending their services to anyone who could afford them. This was, and is, to me a personal dilemma, one in which I could not separate out my secular ethics informed by the code, from my more sacred ethics imposed by Hashem.

I have not since encountered a similar situation. In most instances, the two "codes" I hold myself bound to dictate the same results. I only give this kind of long example as a way of pointing out that the notion of separation can put one into a dangerous situation.

It's a complete misnomer -- and a myth -- that the best attorneys in the criminal (or civil for that matter) setting don't want to know if their client is guilty. The most effective defense can only be constructed based on full and complete information and disclosure by the client. This obviously puts some attorneys into a bind, since if they require their client to disclose everything, they may occasionally learn of continuing or possible future offenses that require resignation from the matter, disclosure to the authorities, or both. That is the price the very best attorneys are willing to pay.

And for some, including several I know personally, it puts them into difficult personal situations, where their personal ethics may conflict with what is technically permissible under the profession's rules. An attorney I know, a couple of years ago, was representing a client in a strictly white-collar matter. But in the course of searching for all evidence relevant to the matter at hand, he came across files on his client's computer containing what was obviously child porn. Clearly, given that mere possession of such materials constitutes a crime, he had to report it (after trying unsuccessfully to convince his client to report it himself). But he struggled deeply with whether he could continue to represent this person at all, and indeed eventually sought the advice of his Rebbe on the matter, because he found the notion of defending a person guilty of this crime disturbing, and also feels personally that the punishments imposed on such offenders can never be too harsh.

It doesn't matter how that turned out. What matters for this discussion is that he refused to separate out his two (potentially)competing codes of ethics, and he made the decision that he would if there was a conflict hold himself to what he perceived as the ultimately higher code.

My only point here (and I've probably droned on far too long on it) is that it is not so clear to me that we can separate out what a Jew would do personally as a Jew and what one does in the course of his professional life. Even as attorneys, we are still -- first and foremost -- Jews. And while different Jews may well resolve these two examples differently, and in good conscience as Torah observant Jews, I don't think the proper approach is some sort of veil of separation; it's deep, self-critical analysis of what one's religious beliefs require one to do under the circumstances.

 

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