A conversation with five Fordham Law professors about ethics and professional responsibility.
When it comes to being an ethical lawyer, the ABA Model Rules of Professional Conduct seem to be what most states rely on to form their own rules of acceptable lawyerly behavior. At Fordham Law, however, ethics is not just a matter of being acceptable; ethics is the fulcrum of an honest and deliberate dialogue about what it means to be a good lawyer. Fordham Lawyer spoke with five professors—Howard M. Erichson, Bruce Green, Russell G. Pearce, Martha Rayner, and Benjamin C. Zipursky—about ethical lawyering and why the rules governing lawyer conduct are only the beginning.
Why is legal ethics important? Why should lawyers have high ethical standards?
Pearce: Ethics is important in every type of work. Lawyers have a special responsibility, because we serve as intermediaries between the people and the law and because we manage the system of justice.
Rayner: From a practice perspective, ethics is critical. Lawyers need a code of conduct to govern our work, to keep us in line, and to keep things fair in the midst of adjudicating very difficult issues.
Erichson: It’s all about clients. Clients trust theirs lawyers, depend on their lawyers, and frankly clients don’t know enough about what their lawyers are supposed to be doing to be able to monitor lawyers’ conduct. It’s that relationship of trust that puts lawyers in a powerful and dangerous position, just like doctors and certain other professionals.
Zipursky: I think of legal ethics as having three sides. The most important part is what Howie mentioned: People have to trust their lawyers. There are norms and professional codes that lawyers adhere to so that clients and society can trust them. Then there’s the whole question of how the bar—a highly educated and supposedly self-governing body of well-paid people—is supposed to interact with society and carry through its values. Finally, there are broad, jurisprudential questions about how the legal system should make society more just. Legal ethics is a huge area because it encompasses all three of these ideas.
The line between ethical lawyering and good lawyering is pretty indistinct. It’s difficult to talk about ethics without talking about what it means to be a good lawyer for your client.
– Bruce Green
Green: Ethics means, at its narrowest, the rules of professional conduct and other laws governing lawyers’ conduct. It’s obviously important that these lawyers we’re sending out into the world have a sense of the law that regulates them. More broadly, though, legal ethics is about how lawyers should make choices in representing their clients and in doing their professional work within the context of the rules of law. But there are even larger questions, as Ben has alluded to. For example, how should we members of the legal profession influence the regulation of the practice of law and the provision of legal services? Would-be lawyers ought to be giving a lot of thought to these types of questions before they enter the profession.
What distinction is there between the rules lawyers must follow and the values they should abide by?
Green: The line between ethical lawyering and good lawyering is pretty indistinct. It’s difficult to talk about ethics without talking about what it means to be a good lawyer for your client. The rules define the bare minimum, but nobody is training lawyers to do the ethical minimum. Everyone is trying to train lawyers to be really good lawyers for their clients. So even when our clinicians are not talking exclusively about ethics rules, they are essentially teaching ethics because they are teaching what it means to communicate well with clients.
Rayner: The formal rules of professional conduct, for example, prescribe behavior related to client confidentiality and loyalty. But they don’t really speak to how you respectfully communicate with a client. Being in the trenches of the lower courts of New York City, I see many lawyers interacting very unprofessionally with clients.
Lawyers must think very carefully about how they speak to clients so that clients fully understand what the lawyers are conveying. Lawyers must listen carefully to a client to properly understand what the client is trying to convey.
A student in my Criminal Defense Clinic brought a potential conflict to my attention, and I asked the team to look at the rules. What do the rules have to say about this? e team determined it did not rise to a conflict under the rules of professional responsibility.
Then I asked them to think about the following: If they were the client, would they want to know this information to be able to adequately determine whether this particular student could be fully loyal to this client? They hemmed and hawed—they were resistant to even bringing it to the client’s attention—because they were afraid it would create tension between them and the client.
I said to the students, “That’s the point though, right? Your discomfort may be shared by the client; therefore, isn’t it only fair that the client be apprised of what’s going on here?” That question pushed them to consider the more complicated question of how to explain and counsel the client on this issue. They did inform the client of this potential conflict, and why they felt it was not a conflict.
Because lawyers are part of the problem, we have a duty to be part of the solution. Pro bono work is one important piece of that solution.
– Howard Erichson
The client ultimately agreed with them, but I hope it was a good learning experience for my student—one for them to think above and beyond the rules of professional responsibility.
Pearce: There’s a way in which the rules, as Bruce said, provide a floor. And as Martha has suggested, these aren’t necessarily adequate in terms of teaching, or requiring, lawyers to have a mutually respectful relationship with a client. Other important values that you can’t see in the legal ethics rules deal with access to justice and promoting a just society.
As a teacher, I have two goals: One is mastery of the rules that students need in order to be excellent lawyers and to pass the bar. Two is to give students the tools to find meaning in their work. So after doing the fundamentals of preparing students for the multi-state professional responsibility exam, I move on to deeper questions for students about their role in the legal profession and what that profession will look like in the future.
Erichson: The Model Rules of Professional Conduct are not law; they are a set of suggested rules promulgated by the ABA. The actual rules that regulate lawyer conduct are adopted state by state. Most of them are based on the ABA model rules. As Bruce and others have said, the rules of each state set a floor below which lawyers can be punished for misconduct. One of the basic things we do when we’re teaching professional responsibility is we are making sure students understand those regulations that govern their conduct in this highly regulated industry that is the legal profession.
But we’re trying to do something much bigger than that: We want to give students a sense of what it means to be a lawyer and what it is to have a lawyer-client relationship. For me, the rules are an entry point to teaching students what that means. It’s one thing to say, for example, that you can be disqualified or disciplined because you have a conflict of interest. It’s quite another thing to try to get students to understand what it really means to be loyal to a client.
How are ethics and professional responsibility related to access to justice issues?
Erichson: Lawyers have the benefit of being able to charge monopoly prices for their work; what goes hand in hand with that monopoly are the people who need but cannot afford legal services. Because lawyers are part of the problem, we have a duty to be part of the solution. Pro bono work is one important piece of that solution.
Green: I think one of the challenges for the bar is to either make legal assistance affordable or to find ways to simplify the law’s legal processes so that people can get justice without the need to hire lawyers.
Pearce: Because of the concern about access to justice, a number of states have started to offer legal services through licensed practitioners who are not lawyers. Washington state, for example, has created limited licensed practitioners to provide less costly, yet still highly competent, services in certain areas.
Te market has been opened up de facto in the United States. There’s a multibillion-dollar legal services industry that is outside of lawyers and law firms and that at the moment is not particularly regulated. LegalZoom, for example, provided representation or assistance in 20 percent of the incorporations in California.
One of the current challenges we have as a profession is how to acknowledge and how to regulate for excellence nonlawyer providers of legal services. By doing so, we will find ways to provide to low- and middle-income people less expensive services that are provided by practitioners who themselves are regulated by an ethics code.
Is technology helping address some of these issues?
Pearce: If we’re talking about the market for low- and middle-income clients who need help, then I would argue that we’re just scratching the surface with technology. At the high end, in big law firms, there is already tremendous reliance on technology. Incidentally, advances in technology allow online legal tech companies to provide types of legal services in a way that makes it very difficult, if not impossible, for bar associations to prohibit it.
Rayner: What’s stunning about my clinic work is how little technology is incorporated. I work in courtrooms where there is so little technology. There’s no e-filing. Some prosecutors won’t even communicate with you via email. It’s really quite stunning how some of the criminal courts are operating in this way.
Green: It’s important to think about how technology can avoid not only the need for lawyers but also the kinds of disputes that traditionally gave rise to a need for dispute resolution and lawyers. Consider how many millions of transactions take place on Amazon, but you rarely hear about lawsuits involving the company, because Amazon has ways of avoiding and resolving disputes; that’s pretty significant.
It seems almost obvious now how individuals can get legal assistance on the internet—for example, how they can obtain legal forms that might enable them to help themselves—but we should also bear in mind the ways in which legal problems are averted in the first place due to technology.
What responsibility, if any, do lawyers have in helping society maintain civil discourse?
Zipursky: For the last quarter century or so, there have been some legal ethics scholars who were comfortable viewing themselves as traditionalists, who were harking back to the past. I’m wondering whether I am one of those backward-looking people too, for the following reason: Everyone’s saying now, because it’s true, that we’re in an era of hyperpartisanship. I think an interesting question is whether the legal profession has any special role to play in moving people back toward consensus. In 1995, Anthony Kronman—the former dean of Yale Law School—published a book called The Lost Lawyer, which had as its thesis that very idea—the role of the lawyer to bring everybody back toward the middle. So that informs my attitude toward legal ethics, whether it’s when I’m teaching legal ethics, torts, jurisprudence, or any other subject. I try to get my students to understand the lawyerly role as one that’s about mutual understanding; this idea of consensus, I believe, is key to the ethical role of the lawyer.
Pearce: I especially agree with what Ben says about mutual understanding. Lawyers—in their ability to have a mutually respectful relationship with a client, who is by definition a person with different goals, interests, and life experiences than the lawyer— can model for the rest of the country how we move past this partisan divide in terms of mutual understanding. I examine this very topic, in fact, in a video called Red State/Blue State: Lawyers, Politics & Moral Counseling, which is available online, including for Fordham CLE credit.
Green: One of the places where lawyers traditionally have expressed their civic or public engagement is in bar associations. That’s the place where lawyers with many different perspectives traditionally come together, engage in civil discourse, and try to seek consensus on positions that the organized bar can then put forward in seeking law reform. The bar is one of the largest public interest law reform organizations—one that’s natural for lawyers to participate in. However, as the number of billable hours increases, and as some of the benefits that the bar association offers, like libraries, become insignificant, it’s harder to explain to students and young lawyers the value of bar association work. One of the things that we at Fordham Law School can do better is encourage students to participate in this work.
Erichson: I agree that lawyers have a role to play in trying to bring people toward consensus. But sometimes lawyers end up doing exactly the opposite. At their best, lawyers help moderate the extremist tendencies of other people. We’re trained to see the difference between rational arguments and irrational arguments, to care about facts, to be loyal to our clients while still maintaining enough independence from our clients that we can see the bigger picture. All of that can be really powerful as an antidote to extremism.
But the problem is lawyers at their worst can fan the flames—sometimes out of legitimate passion about the issues, sometimes out of some combination of greed or self-interest, sometimes out of a misguided sense of what it means to be a zealous advocate.
Pearce: We want lawyers to be passionate and zealous, and there are times when basic human rights, or basic protections of individuals or businesses, depend on lawyers’ passionate presentation. At the same time, that passion needs to be channeled through mutual understanding and mutual respect. Martin Luther King Jr., for example, was always fighting as strongly as possible for his vision of a just society. At the same time, he believed as strongly as possible in treating those who were his adversaries with respect. He was always open to creating new understandings.
Rayner: I think mutual understanding can be hard, particularly for young students who feel this passion and this righteousness, and then also feel that their adversary is quite literally the bad guy. This comes up for my clinic students in connection with negotiations, dispute resolution, and similar matters. I do think it’s very important to help new lawyers develop ways to find some mutual understanding. From a professional perspective, I think it’s actually quite effective to understand your adversary and try to dig deep into what’s going on rather than simply labeling the adversary as the bad guy. Your job as the advocate for your client—the zealous advocate—is to inform the adversary, help the adversary understand what’s going on, convince the adversary that this is the just resolution of this particular matter.
What happens when lawyers are not paying attention to legal ethics?
Rayner: When lawyers don’t know the rules of professional responsibility, they often miss opportunities to be zealous advocates, sometimes even to be competent advocates. Sometimes lawyers rely on their guts or what they think the rule is, and they’ll stop themselves from taking particular action in a piece of litigation. But they may be wrong. They may in fact be permitted to speak to that witness, or they may be permitted to pursue that particular investigation. But believing they are not, they don’t take that particular course of action. It’s not just that we want our students to avoid violating the rules and facing disciplinary action. We want them to understand the rules so they lawyer right up to them, so they do what the rules and the law permit them to do on behalf of clients.
Pearce: One step that would help encourage lawyers to follow the ethics rules is to try proactive methods. Right now, the template is you violate a rule, you are disciplined.
But certain U.S. jurisdictions, inspired by models in use in Australia and England, are starting to explore proactive ways to encourage ethical conduct by lawyers. Bar associations, for example, or groups of lawyers like inns of court could develop ways to help lawyers understand how to best follow the rules, rather than only punishing lawyers when they get into trouble.
Erichson: The narrow answer to the question is that lawyer misconduct can be penalized through criminal liability in extreme cases, civil liability for legal malpractice or for breach of fiduciary duty, or lawyer discipline imposed through the regulatory process. The typical disciplinary measures could be reprimand, suspension, or disbarment. What my colleagues and I would like to stress, though, is when we think about how to encourage lawyers to conduct themselves properly, we don’t think only about those sorts of incentives; rather, we consider a whole set of structural and normative approaches.
When lawyers don’t know the rules of professional responsibility, they often miss opportunities to be zealous advocates, sometimes even to be competent advocates.
– Martha Rayner
Green: The risks nowadays have become higher for lawyers when they do act in ethically impermissible, or even questionable, ways. When I started teaching 30 years ago, I remember learning from Mary Daly [former James H. Quinn Professor of Law at Fordham] that traditionally there were very few malpractice claims against lawyers because other lawyers didn’t feel comfortable suing their professional brethren. That has long since ended, so the formal risks are higher. At the same time, informal risks are higher. In the past, there wasn’t much writing about what lawyers were doing from day to day. Now there’s an overabundance of information in print and online. People care very much about their professional reputations.
Zipursky: It’s a more perilous world for lawyers who behave in unethical ways. What I find most gripping when I teach legal ethics are the kinds of dilemmas lawyers face with regard to duties to their clients and to third parties, including the court, the bar, society, other investors, and so on. These dilemmas are very difficult in terms of confidentiality and conflict of interest. Lawyers who are going into various kinds of private practice or government practice, particularly in the middle of New York City, are going to face a lot of challenges.
Since I’ve been teaching in the mid- ’90s, we’ve been through two cycles of terrible financial catastrophe for which big players on Wall Street, and more generally in the corporate world, bore some responsibility. These events have also been blamed in part, with some reason, on lawyers who were there, who saw what was happening, but who permitted their loyalty to their clients to trump a more general observation to reveal frauds to society. As a result, we’ve had Congress respond in two rounds—Sarbanes-Oxley and Dodd-Frank—with more rules about lawyers having obligations to report when certain things are going on.
Why does Fordham emphasize ethics in its approach to legal education?
Pearce: We’ve long had a community of individuals who are strongly committed to ethics and professionalism. Louis Stein, a distinguished alumnus, had the idea that the Law School should respond to the Watergate scandal by becoming a national and international leader in the field of ethics. As a result, he endowed the Louis Stein Center for Law and Ethics, which has served as the focal point for Fordham’s ethics teaching and scholarship. We’ve also had a faculty that values ethics and great deans committed to ethics and professionalism, such as John Feerick and our current dean, Matthew Diller.
Green: I’m surprised that Russ, who is the faculty director of the Institute on Religion, Law & Lawyer’s Work, didn’t mention that the School’s link to teaching legal ethics is part of the way it keeps faith with the University’s Jesuit tradition.
Pearce: Excellent point. Fordham’s Jesuit tradition prioritizes teaching students in a way that forms people of the highest moral character and who are committed to serving others.
Rayner: My clinic colleagues and I share a goal of putting ethics into practice, and we work very hard to help students take what they have learned in professional responsibility and use it on a daily basis—to spot potential ethical issues and to solve those issues.
In the Criminal Defense Clinic, I very much push the ABA standards for prosecution and the ABA standards for defense, which are aspirational. But as we’ve already mentioned, I’m trying to get my students to think about the rules as a floor, and we should all be thinking much bigger and better.