Traversing the Ethical Minefield: Problems, Law and Professional Responsibility
by Susan R. Martyn and Lawrence J. Fox
Contact Aspen Publishers for information about this casebook.
Book Review: August 9, 2004, The Pennsylvania Law Weekly
Vice and Virtue; A new legal ethics primer examines both rules and self-restraint
By Michael A. Riccardi Of the Law Weekly
Oliver Wendell Holmes, in his 19th Century essay "The Path of the Law," emphasized that legal boundaries define only what a "bad man" can get away with.
Morality, on the other hand, defines how a virtuous person should act.
So it is with the law of professional responsibility and legal ethics.
Professional responsibility codes, such as Pennsylvania's, define only the outer limits of legal probity. For example, if you commingle client funds with law firm assets, you are risking disbarment because you are not safeguarding money that is not yours. But what are the standards of conduct for the reverse image of Holmes' "bad man?" In other words, what is the ethic of the "good lawyer?"
Our state Supreme Court in 2000 attempted to address this by promulgating an advisory Code of Civility. It is a noble document, exhorting Pennsylvania attorneys to, among other things, "abstain from making disparaging personal remarks or engaging in acrimonious speech or conduct toward any opposing counsel or any participants in the legal process."
Since the civility code is followed only on a voluntary basis, and there is no means of enforcement, its impact is limited. Still, the code explicitly recognizes that there must be some spur to improve standards of behavior among lawyers, who may be adversaries, and between lawyers and the courts. It also recognized that any change in the tone of increasingly sharp legal practice must be the product of a voluntary change in attitudes among lawyers.
What the high court was trying to do in 2000 was to exact a price for sharp practice - to engage in harsh sarcasm or refusal to grant a reasonable request for a continuance, for instance, would be viewed as unprofessional and inappropriate. Lawyers who indulged in sharp practice would risk losing the respect of colleagues.
The authors of a new textbook on conduct in the legal profession understand the dichotomy between what the rules allow and what the "good lawyer" will allow herself to do.
Susan R. Martyn, a law professor at the University of Toledo, and Lawrence J. Fox, a partner at Philadelphia's Drinker Biddle & Reath, have co-authored "Traversing the Ethical Minefield: Problems, Law and Professional Responsibility." It is a casebook, intended for use in law schools, but it rewards attention from even seasoned lawyers.
First of all, Fox was one of the driving forces behind the American Bar Association's "Ethics 2000" Committee, which drafted an entirely new set of model professional responsibility rules. The committee's report has already had a great deal of influence on rulemaking at the state level, and having Fox's thoughts on professional standards is especially valuable in light of his influence on the model rules.
Second, and perhaps even more remarkably, Martyn and Fox have given lots of attention to professional standards outside of legal requirements. This book is not only about the actions that can get one suspended or disbarred. It is about the factors that a lawyer needs to consider if they want to uphold the highest standards of what an attorney should strive to be.
For instance, in their chapter on deciding whom to represent, Martyn and Fox posit the question of whether a law firm should agree to provide its services to a bank accused of looting the assets of Holocaust victims. They also invite the reader to ask if a lawyer might ethically agree to represent the bank on a statute of limitations challenge but not mount a substantive defense.
While all persons may be entitled to access to the courts or to a competent legal defense, lawyers must still consider how they wish to deploy their talent. Choices of whom to represent, while not necessarily implicating the professional responsibility rules, have a profoundly ethical dimension, the questions imply.
The textual material surrounding the hypothetical questions, cases and court rules contains several fascinating observations. There is much in "Traversing the Ethical Minefield" to make attorneys think about how their talent may be used to serve not only paying clients, but the broader community.
In their discussion of pro bono service, Martyn and Fox observe that in the United States, where market forces rule, "those with the most money get the most legal services and usually the best lawyers, leaving those with little money or power to fend on their own."
As a result, the United States "has no shortage of lawyers, but the gap between rich and poor continues to expand."
Only one in five lawyers currently in practice do much to address the imbalance, the authors observe.
That is not only a market failure, but also an ethical failure. It is, moreover, not a failure of professional responsibility codes.
Also interesting is the authors' treatment of the indirect effects of lawyer conduct. With corporate scandals such as Enron, Worldcom and Tyco still garnering major headlines, it is no surprise that Martyn and Fox discuss not only the impact of professional conduct rules and basic standards of behavior - they also remind attorneys that they, too, may be subject to liability if they serve as an accessory to fraudulent conduct.
The hot issue of attorney whistleblowing, or "noisy withdrawal" from representation, gets a thorough airing in "Traversing the Ethical Minefield."
A very helpful table provides the state of the law in all of the nation's jurisdictions. For example, disclosure of a client's past fraudulent activities is permitted in Pennsylvania and 17 other states, prohibited in 30 jurisdictions and required in four states.
In one key passage, the authors set out the bottom line for ethical representation of a corporate client, reminding attorneys that they are looked to by clients as a "private lawmaker," influencing the legal system but also influenced by it.
[L]awyers must respect each client's moral autonomy, but also help each client understand the moral values and public policy choices embedded in the law itself," Martyn and Fox write. "The best lawyers also respect their own moral integrity and are willing to deliberate and, if necessary, argue with clients about their goals and interests."
It is not surprising that a textbook written in part by Fox would consider not only the letter of the law of professional responsibility, but a broader view of the attorney's role. After all, the ABA model rules say, as the authors quote, "virtually all difficult ethical problems arise from the conflict between a lawyer's responsibility to clients, to the legal system and to the lawyer's interest in remaining an upright person while earning a satisfactory living." The preamble to the rules also notes that personal conscience and the approbation of professional peers are also to guide the actions of a true professional.
"Traversing the Ethical Minefield," in the end, is more than a law school text. It adds to an understanding of professional responsibility the insights of moral philosophy. If you want to know the rules, read this book. If you want to think hard about how your actions in the practice of law have real impact in your community, read this book closely.