Ethics

In an Editorial Observer article in the NYT yesterday, Dorothy Samuels quotes Steve Gillers on the Gillibrand/Phillips Morris matter.  According to Samuels, Steve objects to publicly criticizing lawyers for their choice of clients.  As I have explained elsewhere, I consider the choice of a client to be a moral decision that can properly be criticized publicly, and that it is in the public interest to do so.

To the point here, however, Samuels quotes Steve as approving public criticism of lawyers for ?how they carry out the representation.?  Specifically, she quotes him as saying that a lawyer can properly be criticized for engaging in a strategy that is ?morally offensive, even if it violated no law or official legal ethics rules.?

That view raises some troubling questions.  Assume that the lawyer intends to decline to engage in strategies that are in the client?s interest and that are both legal and ethical, but that the lawyer finds to be morally offensive.  When then does the lawyer comply with her obligation to communicate that crucial information about the representation to the client (or to her law firm if, as in Gillibrand?s case, she is an associate given the option to decline the assignment)?

If she informs the tobacco company or the law firm at the outset that she might decide to forgo pursuing rights of the client that are legal and ethical, that is tantamount to declining the representation (which is fine with me, but seems to be contrary to what Steve is quoted as saying).

On the other hand, if she fails to communicate that information at the outset, I think she is failing in her obligation of communication and is engaging in conduct involving misrepresentation by omission.  Otherwise, isn?t the client (and the firm) entitled to assume that their lawyer will do what is lawful and ethical in the client?s interest?

Also, I assume that when the lawyer does find the client?s strategy immoral, the lawyer will not simply forgo the action without informing the client that she is doing so.  However, if the lawyer waits until she is in the midst of the representation before communicating the information to the client, it is not unlikely that her withdrawal (or dismissal by the client) during the representation will then have an unfair, material, adverse effect on the client?s interests.

The Restatement of the LGL, sec. 32(4), recognizes a rule of proportionality in exercising the option to withdraw.  And if, in response, the lawyer is going to pull out the trump of the harm that tobacco companies are doing to the public, shouldn?t that card have been played at the outset, as I believe should be done?