Ethics

"Satan killed Carol; Jesus saved the kids."  Said by a jailed client whose fingerprint was found in the blood of a dead woman these words grab you and will not let go.  No amount of exposition on MR 1.6, at issue in the case where they were said, has a tenth their power.

Stories matter. We see the world in patterns our minds compulsively create, and a pattern is a type of story.  Stories frame, justify, rationalize, complicate, obscure, mislead, and enlighten.  Jurors create stories and favor the presented story that most closely matches their own.  The best cases are good stories.  They are vital to learning. Two books I read recently, Jerome Bruner's Making Stories and Gary Klein's Sources of Power, are eloquent on the point.

So here is a story of a magnificent book of stories: Richard Abel's Lawyers in the Dock. If I could have a wish for the legal ethics curriculum it would be that every student have a seminar with this book among the texts.  If I could have a second wish it would be that I would have written it instead of Abel.

Abel studied six New York disciplinary cases involving seven lawyers.  Their misconduct involved neglect, overcharging, and excessive zeal.  With one exception (a lawyer who paid his own money to compensate his client for his neglect) they are not particularly surprising stories.  They are ordinary and their ordinariness is a great virtue of the book. 

Drawing on the records of the disciplinary proceedings, Abel presents detailed accounts of the cases. He frames the narratives coherently but through transcripts and interviews allows the lawyers speak in their own voices:

"In hindsight, my head was in the ground,"

"I have a high volume practice . . . I'm like an over eager little puppy dog.  The client comes in I want to help them." 

"My basic billing was somewhere between 2,200 and 2,400 hours per year, but it was a very . . . pressurized place . . . the kind of place where you didn't fail."

"It wouldn't have been fair to me... because otherwise...I would have been working for nothing...I don't work for nothing.  Not with this kind of money involved."

"I was unfortunately put in the position that if I then escrowed the money I agree in effect that I had stole...the money..."

"I insist on being heard.  If you are going to send me to The Tombs because I want to be heard, you go ahead and do it."

Abel also presents replies from two of the lawyers.  Reinforcing Abel's interpretations as they do, they are among the best parts of the book.Abel summarizes each story briefly, offering a persuasive interpretation of the lawyer's conduct.

None of the lawyers seems like an irredeemably bad person. They get in over their heads or get in a financial bind, make a mistake and then (with one exception) dig in and dissolve in pools of denial or  righteous indignation, some cool, some steaming, some boiling.  The exception was a depressed lawyer who got help (and who also was the one who shelled out his own money to cover his neglect). 

All this is part of Abel's point: There is no definable subcategory of "bad" lawyers.  Lawyers are  people and  the species displays  a range of behaviors  that, in some settings, will cross into behavior society considers bad.  Powers of rationalization, honed by rationalizing for others, are impressive.  Perspective is not.

(Burns was right: "O wad some Power the giftie gie us
To see oursels as ithers see us!
It wad frae monie a blunder free us
An foolish notion:
What airs in dress an gait wad lea'es us,
An ev'n devotion!)

So what to do when, as Abel says, "[e]ducation is ineffectual  Punishment can be counterproductive."  He offers some sensible suggestions--mandatory advanced written fee estimates, for example, or a requirement that malpractice and disciplinary complaints (and their resolution) be available online. (I would have the bar maintain the records, linked to a member's bar page.)  Others proposals might be inferred from his stories--an explicit rule requiring lawyers to maintain systems adequate to keep track of their files and calendars (compare SEC recordkeeping requirements).

Ultimately, though, it seems to me that culture matters most.  ("Character," Abel says, "is destiny.")  And that is a big problem. An honor culture might help, but that implies a degree of homogeneity that would be unacceptable in modern society.  As between our present highly competitive legal culture and the WASP-dominated world of the middle of the last century (see Abel 1991), I would take ours hands down. But then I started at Skadden.

"Can the profession muster the political will to reform?"  With this question Abel ends his book.  I see no reason to offer an affirmative answer.  What little we can do, though, will be better done with this very wise book to guide and help us.

DM