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Legal Ethics, Professional Responsibility, and Morality

Perhaps you have had the occasion to use the phrase “legal ethics” in public. If so, you may have noticed the look of bewilderment on the faces of your listeners – as if you had come out with an outrageous oxymoron. You may try and explain that “legal ethics” is a body of rules and laws that govern the behavior of lawyers, and does not mean “ethics” in the everyday sense. This usually seems to satisfy the listener, but sometimes you get pushback with questions like - how can lawyers be ethical when they defend child pornographers, mislead people into bad deals, remain quiet when their clients are crooks?

While lawyers have stock answers to these types of questions, they raise some basic issues on what “legal ethics” are all about. Some direction toward understanding these issues is contained in the twentieth anniversary edition of Robert Jackall’s award winning book Moral Mazes – The World of Corporate Managers (Oxford University Press: 2010). While this book focuses on work within the corporate bureaucracy, many of its insights are applicable to the legal profession.

The book, the result of 143 interviews of managers at three corporations, “examines managers’ work, the intricate social contexts of their organizations, their striving for success, the habits of mind they develop, and especially the occupational ethics that they construct to survive and flourish in their world.” However, there are certain elements of book that are applicable to lawyers and the legal profession – especially concerning the creation and application of “occupational ethics”.

Jackall describes the moral ethos of managers:
as an ethos most notable for its lack of fixedness. In the welter of practical affairs in the corporate world, morality does not emerge from some set of internally held convictions or principles, but rather from ongoing albeit changing relationships with some person, some coterie, some social network, some clique that matters to a person.
. . .
Notions of morality that one might hold and indeed practice outside the workplace – say, some variant of Judeo-Christian ethics – become irrelevant, as do less specifically religious points of principle, unless they mesh with organizational ideologies.

Managers are, therefore, often put in the position of having to having to trade off between the exigencies of corporate life and personal principles. “They usually pose the trade-off as a question: Where do you draw the line?” Jackall states that “[i]n most situations … managers have to draw lines for themselves; for some, this can be a troublesome and anxiety-laden process, one that reaches into every sphere of their work lives. … Within this framework, the puzzle for many individual managers becomes: How does one act in such a world and maintain a sense of personal integrity?”

So how does this analysis apply to lawyers? Just substitute the word “lawyer” for “manager” and the words “legal practice” for “corporate life”, and the analogy seems appropriate.

How then does the analysis help us in understanding legal ethics?

First, break down the topic of “legal ethics” into three categories.. Call one “Professional Responsibility”, the second “Personal Morality”, and the third “Occupational Ethics”. The catagory called Professional Responsibility includes subjects such as the Illinois Code of Professional Responsibility (or applicable code), the Restatement of the Law (3rd) The Law Governing Lawyers, state and local bar opinions, and court decisions. Taken as a whole, these sources create a body of substantive law that governs the behavior of individual lawyers and the legal profession. Violation of this body of law can result in liability for damages or professional censure. While these subjects have been the topics of many books, columns and blogs, they are the easy part of this analysis.

The category titled Personal Morality is, not surprisingly, personal to the individual lawyer. Each of us has a personal code of ethics and morality, based on religious or secular beliefs, that governs our behavior. There are some things that “we just won’t do” or some cases “we just won’t take”. Or in Jackall’s words: “Where do you draw the line?”

The category called Occupational Ethics is based on the analysis contained in Jackall’s book. Occupational Ethics are contextual. They are based on the ethos of the legal community in which the lawyer works. They may differ from place to place, firm to firm, and time to time.

As a simple application of this analysis, take the example of the prohibition of conflicts of interest between clients. Under the heading of “Professional Responsibility” you would place Illinois Rules 1.7 and 1.8 as well as innumerable bar and court opinions. Resolution of a conflict is discussed in Comment to 2 to Rule 1.7, which states: “Resolution of a conflict of interest problem under this Rule requires the lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict of interest exists; (3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent.”

Though there is a great deal of law interpreting Comment 2, some of the analysis must fall under the heading of “Personal Morality.” Whether or not there is a conflict, whether the conflict is consentable, and how to go about obtaining informed consent, are all questions of judgment – and this judgment may be influenced by the personal interest of the lawyer, such as trying to increase his or her business and income. It is a matter of ethics and morality that the lawyer should not let his or her personal interest negatively affect his or her interpretation of the rules of professional conduct.

Applying Occupational Ethics can be more complicated. Over the years I have had lawyers ask for a waiver of conflict in cases where I did not think there was one “because it is the firm policy to always ask.” On the other hand, I have had lawyers ask for waivers in cases where the conflict was so egregious that there was no way it was consentable. It was overreaching even to request a waiver. I assume it was firm policy to push the boundaries in requesting these waivers. Such a determination that it was ethically acceptable to ask for a conflict waiver when it clearly was not consentable is an example of the negative effect of contextual Occupational Ethics.

In a perfect world, these three attributes of legal ethics should not conflict. However, in our imperfect world, they may conflict. We have all heard of the cases in which lawyers receive privileged information from a client, disclosure of which would correct an injustice to another person. However, notwithstanding that the lawyer’s Personal Morality holds that the information should be disclosed, the rules of Professional Responsibility prohibit disclosure. Similarly, lawyers may be involved in transactions they personally find improper (though legal), but continue representation because the Occupational Ethics of their firm or community promote it. In the words of Jackall: “How does one act in such a world and maintain a sense of personal integrity?”

One solution is to apply the logic of Rule 1.16 – Declining or Terminating Representation. Subsection (b)(4) states that a lawyer may withdraw from representing a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” The right to walk away from an objectionable representation is not absolute, however. Subsection (c) requires that a “lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” Nevertheless, if the Rules of Professional Conduct or the Occupational Ethics of the lawyer’s firm seriously conflict with the lawyer’s Personal Morality, the lawyer may always refuse the representation or leave the practice of law, even if it be at great personal cost.

Dividing the general concept of “legal ethics” into three subgroups should aid lawyers both in explaining the concept to the lay community and in dealing with ethical problems as they arise. Most day to day issues will come under the heading of Professional Responsibility. Conflicts, confidentiality, advertising, and similar matters can almost always be handled through reference to the Codes of Professional Responsibility and their interpretations. Occupational Ethics have a subtle affect on lawyers’ behavior and their application of legal ethics. Personal Morality is the ultimate test of the boundaries of behavior.

I hope to apply this analysis in future columns.