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Volume 26, Number 4 (2000) reprinted by permission University of Memphis Law Review Be Led Not into Temptation: Ethics Lessons from The Rainmaker AMANDA K. ESQUIBEL *
this. In large part, the ability to be objective about someone else's problem may be one of the most valuable parts of the lawyer's stock-in-trade.2 John Grisham's The Rainmaker ironically and satirically challenges lawyers to look objectively at themselves and their profession.3 I started law school less than three years ago with typical noble aspirations of one day using my license to better society in some small way, to engage in an honorable profession governed by ethical canons I thought all lawyers would strive to uphold. I really believed this. I knew I couldn't change the world, but I dreamed of working in a high-pressure environment filled with sharp-witted people who adhered to a set of lofty standards. I wanted to work hard and grow in my profession, and in doing so attract clients not by slick advertising but by reputation. And along the way, as my skills and fees increased, I would be able to take on unpopular cases and clients without the burden of getting paid. These dreams are not unusual for beginning law students.Rudy struggles with living life as a law student, a lawyer, and a social being. He is a compelling protagonist because readers can identify with many of his struggles. Throughout the tale, he is tested at every turn. At times, he meets the challenge. But sometimes his resolutions of ethical dilemmas are controversial compromises. Rudy is certainly not the embodiment of evil, but neither is he free from temptation. In short, Rudy has the great appeal of being human. upon hearing "unethical client solicitation." Using that phrase might leave one with that uneasy sense of confusion that arises upon hearing a euphemism.10 But, nonetheless, there is confusion. Moral confusion is induced by financial temptation. In fact, Rudy finds himself in the corridors of a hospital with his dignity and self-respect being rapidly outstripped by his self-interest. His "accomplice" in this venture, a character named Deck, is right there to support the cause of "ambulance chasing." Like any "good" devil, Deck provides a palatable rationale and, along with it, a succinct ethics lesson: "You see, Rudy, in law school they don't teach you what you need to know. It's all books and theories and these lofty notions of the practice of law as a profession, like between gentleman [sic], you know. It's an honorable calling, governed by pages of written ethics."11Before falling into the moral abyss, Rudy's little remaining dignity and self-respect gasp their last breath: "What's wrong with ethics?"12Deck responds with a subtle shift in paradigms: "Oh, nothing, I guess. I mean, I believe a lawyer should fight for his client, refrain from stealing money, try not to lie, you know, the basics."Rudy readily confesses to being so and objects that "it's unethical to solicit cases. It's blatant ambulance chasing."14 Once again, Deck replies, acknowledging the ethics argument but explaining its irrelevancy: "Right. But who cares? Better us than the next guy. I promise you that within the next twenty-four hours another lawyer will contact Van Landel and try to sign him up. It's simply the way it's done, Rudy. It's competition, the marketplace. There are lots of lawyers out there."15Deck's argument is persuasive, if not convincing. In fact, the dialogue might go on in various forms in the head of anyone thoughtfully preparing to teach Professional Responsibility. Do not Deck's Big Three (fight for your client, refrain from stealing, and try not to lie)16 essentially say it all? If so, then why devote an entire class to Professional Responsibility with clamorings for more? Deck might also be credited with a striking brevity and clarity that often escapes lawyers.18 Of course, the MRPC attempt to deal with more specific applications and give more practical advice.19 Moreover, as general moral principles, Deck's Big Three seem uncontroversial. What happens then between their utterance and application that causes so much dismay and consternation? An analysis of each rule of Deck's Big Three sheds some light. Wealthy clients have the attractive potential to make lawyers wealthy.21 Thus, with the wealthy client, the problem may be less of insuring zealous representation than one of checking overzealous representation. When the money is flowing, there seems to be no end to the advocacy arsenal. Overzealousness may be overkill and not even in the client's best interests.22 It may also inflict considerable harm on non-paying third parties, the court, the system, and society in general. With respect to the poor client, the problem is the converse. Unfortunately, unlike wealthy clients, poor clients usually do not offer an attorney the opportunity to maximize the attorney's wealth.23 Nary a bar association has failed to recognize and advocate the need for its members to provide pro bono services.24 Despite this, mandatory pro bono programs are extremely controversial.25 In fact, taking on a pro bono project is costly, if for no other reason than that the project consumes time that could be otherwise devoted to paying cli- ents. It also requires the uncompensated assumption of malpractice risk. Hence, as the market models sadly predict, the supply of pro bono services does not meet the demand. Irrespective of the client's financial status, it seems difficult to define what constitutes the appropriate measure of zealous advocacy. Some of this may be related to the issue of competency and the requisite standard of care.26 In other words, some advocacy may be advanced out of fear and lawyer's interest in self-preservation.27 Practitioners probably fear their clients more than anyone else for three good reasons. One is that the client may leave and take the "checkbook." Another is that the client may be dissatisfied with the result and sue for malpractice. Finally, retaliation or discipline by any one other than the client is unlikely. Lawyers have said that malpractice risk has ruined the profession. It impedes practice. The client's discontent may not be an accurate signal of quality law work. Sometimes, the toughest words to say to a client are "no, no, no."28 Furthermore, at times society's interests require that "no" be said even when the client's interest would otherwise dictate that the action should be undertaken.29 The client's discontent, therefore, may even be the inevitable by-product of a job well done. The above postulate is a great argument for maintaining as much self-regulation as possible. An educated board of professionals may indeed be a better judge (all things considered) of whether a job is well done.30 But boards aren't completely ob- jective. They are laden with their own self-interest.31 As they are comprised of professionals, it is likely that they have empathy for those of their peer group who come before them to be judged. This empathy may be compelling and manifest itself as a bias against punishment.32 But if boards do not toughen up, the marketplace will bear down. Tort liability will fill in for reluctant boards.33 Malpractice risk will increase. There will be more to fear from the client. It will be harder to deny the client anything, irrespective of the social costs. Hence, the profession will continue to fill up with confrontation and distrust. Litigation will continue to bog down. Defensive practice will consume an even greater portion of the scarce resource of lawyer time.34 good authority for this point, stretching back thousands of years.35 In fact, it is probably fairly uncommon for lawyers to steal.36 The probability of getting caught is high, as evidence of stealing is often hard to hide. Moreover, when lawyers do get caught stealing, courts, boards, and bars take serious action; they seem particularly unforgiving in this regard.37 Accordingly, lawyers probably generally perceive that the costs of getting caught very likely outweigh the benefit gained through the transgression.38 A lawyer who steals endangers a career as a lawyer and his or her personal liberty; with so much to lose and a fair likelihood of losing it, it will be rare that crime pays. The lovely by-product of this cost-benefit analysis is conduct (refraining from stealing) consistent with basic morality. Despite the above, there seems to be at least one situation where stealing is not well-regulated in the profession and, hence, complaints and concerns abound. Avoiding euphemisms, intentional overbilling is stealing. There is evidence to suggest that it occurs more frequently than anyone would like to think.39 Why does this type of stealing occur frequently when other types do not? Perhaps it is because it is so easy to get away with. Indeed, this is also, in part, why Deck's Third Rule--Try Not to Lie--presents so many practical problems. For example, where generally one is asked to believe that "honesty is the best policy,"42 the lawyer's duty of confidentiality strongly suggests a different policy in the name of the abstract system of justice.43 While the duty does not expressly require acts of affirmative dishonesty, it clearly, at times, prohibits revelation of the truth.44 As another example, a person may believe it is essentially dishonest for a lawyer to represent a guilty person. In fact, it may be that such beliefs reinforce good behaviors in society generally. The aiding and abetting of criminals is generally something that society seeks to deter. Irrespective of the worthiness of these modifications of social norms, lawyers must expect derision when they seemingly carve out a different standard for themselves. It seems unreasonable to expect others, pressured to conform to a different standard, namely the public, to understand. Such criticism must be gracefully borne. It may even serve as an important social check to insure that lawyers remember that the different standard applies only in a narrow professional context. When professionals cross the line between undertaking solemn duties and revelling in victory dances when the outcome is favorable, the suggestion that lawyers are merely misunderstood gladiators of the common good rings hollow.45 So with the fundamental problem of not being able to reliably determine, by resort to social norms, what is and is not lying, "trying not to lie" may be the best that a lawyer can do.46 Perhaps because it is hard to define, lying is something which the law in many instances has not sought to regulate. If it rises to serious levels of misrepresentation, there are statutory and common law remedies. That aside, the penalties associated with "lying," whatever "lying" may be, are generally less certain than for stealing. Moreover, problems associated with proving that one is lying abound. It is often the word of one against another with no witnesses or other ascertainable proof in between. This state of affairs leaves an enormous, unregulated, grey area. Most legal practice is conducted by necessity in this grey area and outside of a supervising tribunal.47 It is, in essence, regulated only through the moral conscience of the participants.48 Thus, the quality of the judgments about "lying" are no better or worse than the quality of the moral compass used in the process.49 In this grey area, some lawyers may believe that the "lie" or the "stretch" is fruitful.50 They may believe it is justified because it promotes equitable outcomes. They may also believe that it is a part of the "game." Also, as discussed before, the fearful lawyer may simply be concerned about what the client thinks more than what anyone else thinks. Disconcertingly, in this light, ethical conduct begins to look like a handicap. At this point, a return to the discussion of intentional overbilling as stealing is instructive. Imagine one at the work desk, feeling tired, stressed, undercompensated, or otherwise dissatisfied. One may be able to alleviate these feelings with the stroke of a pen by changing 1.1 billable hours to 1.5 hours. The temptation to do so becomes understandable. One is not likely to get caught. Arguably, only the client has a financial interest in policing the behavior, and both the act and intent are tough to prove. The witnesses are just the harried violator, the office walls, the pen, and the time sheet. Hence, this form of lying and stealing is not fraught with many perils and, therefore, probably occurs with some frightening frequency.51 This illustration suggests that economic incentives cannot be ignored when attempting to resolve lawyers' problems of increasing incivility and unethical behavior.52 Believing this, however, does not require surrendering the ship of Professional Responsibility. One cannot so easily give up on the subject. A despairing philosophy has no place in the classroom unless it is used to encourage or inspire. In fact, recent trends and educational consensus suggest that Professional Responsibility is more important than ever.53 Therefore, the teaching of Professional Responsibility must be placed in its educational context. ment that economic incentives play a role in professional conduct should be unremarkable in a society that reveres market forces. In our capitalist culture, individuals are encouraged to act in their own best interests and to maximize their own personal wealth.55 People who go to law school in this country share the capitalist experience--an experience which says that most things should be determined by the marketplace, by supply and demand, and by the desires of consumers.56 Many people go to law school to make a better living.57 It is an example of the American dream that one of humble origins can get an education and become a member of America's aristocracy.58 "The successful competitor, having been urged to compete, must not be turned upon when he wins."59 Paradoxically though, the hallmark of a successful profession may be its collective ability to resist, at least in some respects, the temptation of the marketplace. Ethical rules and enforcing authorities may not adequately recognize the temptations of the modern marketplace for legal services.60 Perhaps this "weakness" is compensated for in many cases by a lack of enforcement. This compensation, however, does not recognize or reenforce the social importance of resisting such temptation. Consequently this abdication to the forces of an overly simplistic market model fails, not only society but the profession itself. A simplistic market model does not describe the legal profession because lawyers do not produce an exclusively private good.61 Instead, their "good" has social components from which society benefits or for which society pays. Unethical practices are in some sense akin to a manufacturer who produces a product but at the same time pollutes the atmosphere. The difficulty is that, absent regulation and, as importantly, enforcement, the manufacturer profits from sales of the product without having to pay the social costs. Much of environmental law and litigation is devoted to insuring that those whom society believes should pay, do, in fact, pay for the clean-up. To be effective, the ethical rules, and the enforcement of them, must work to accomplish the same end. If the lawyers of old did better at resisting the temptations of the marketplace, maybe it was because, as a group, their social characteristics were closer to those of an Indian tribe.62 One is less likely to do damage to another if the repercussions are the potential loss of a valued position or relationship. Additionally, when one is more attuned to interconnectedness with others, one is more likely to undertake acts that are in furtherance of the common good. The interests, therefore, of the social group and the individual are closely aligned. These very important social checks on unethical behavior, however, become less effective as the numbers of lawyers increase and, inversely, opportunities to form close personal relationships decrease. Like the lawyers of old, modern lawyers are probably still motivated, at least in some considerable part, by self-interest.63 It is simply leading to different outcomes in today's large, faceless legal community.64 Today, it is impossible to have close personal relationships with every member of virtually any bar association. This also can be true of attorney-client relationships. Where the likelihood of repeatedly dealing with another lawyer or client is small, a short-sighted attorney may just focus on "getting what he can get" from a temporary situation. Therefore, the interests of the individual and society start to diverge. Furthermore, everyone seems to be working harder for less. Years ago, one person could comfortably support a family. Today that is unusual, manifesting itself in many more dual income families strapped not just for money but for time to competently raise a family. Lawyers are no exception to the rule.65 Finally, there is no doubt that today a legal education is less valued than it was fifty years ago. Supply has caught up with demand. Hence, those with legal educations can no longer rely on a surplus of paying customers.66 Therefore, the marketplace dictates that competition for them will be fierce. It seems fairly obvious why the name "rainmaker" has been transferred to certain members of law firms who "bring in a lot of business." Such a lawyer is given exalted status because his success is critical to so many. If someone doesn't "make rain" (bring in clients), the firm dies of starvation.67 Firms encounter each other frequently in practice as a necessary consequence of an adversarial system of justice. They also encounter each other as a necessary consequence of fight- ing for the shrinking supply of paying clients. Increasing unethical conduct in the adversary system may suggest that lawyers believe that the loss of that battle can adversely affect the other, in some sense greater, battle for their livelihood. Ultimately, the market extracts its full price. Lawyers will be forced to continue to compete for clients. They will be forced to lower their billing rates. They will also be forced to do pro bono work. Subtly, yet inexorably, lawyers will be forced to surrender their self-regulation to the marketplace. Foxes get to watch the chicken coop only so long as not too many chickens are missing. Economic incentives are not created by writing on a piece of paper. Neither are ethics.68 To solve the "ethics" problem,69 two things must be done: (1) the existing economic incentives must be identified; and (2) the economic incentives must be realigned with the desired ethical goals. The former involves unflinching honesty and objectivity about the legal profession and what goes on behind its closed doors. This means that we, every member of the profession, individually and collectively, must address Mr. Grisham's challenge. We must not dismiss him. We must determine to what degree his story reflects professional reality. We have to look critically at our finished product, Rudy Baylor, and decide if we approve of the way he wears the mantle of professional responsibility. If we don't, we must have the courage to admit it in the hopes of self-improvement.70 At the end of The Rainmaker, Rudy has given up on all of it. In the penultimate paragraph (which is the most disheartening part of the book), he says: "I will not, under any circumstances, have anything whatsoever to do with the law. I will allow my license to expire. I will not register to vote so they can't nail me for jury duty. I will never voluntarily set foot in another courtroom."71 As a fictional character in a fictional story, Rudy Baylor is free to leave it all behind him, cross the Mississippi, and go West. The rest of us are not. We never judge ourselves as severely as we judge an abstract case--evil never admitted by the will without some palliation . . . the trust which we naturally place in our own hearts--self-love conspires to make dupes of us . . . . As we cannot ourselves give a fair judgment on our own sins, might we not sometimes call in another to judge them?--or ask ourselves how such an sic one would regard it, if we communicated it to him?--the better as well as the worst parts of our conduct need self-exam- ination--suspect your own motives--part of our religion due to cus- tom--part of it a homage to public opinion--part of it due to the love of keeping up appearances--part to natural activity of mind--difference between an innocent and a gracious motive.Id. 2. This is evidenced by the number of Model Rules of Professional Conduct devoted to the preservation of independent judgment. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rules 1.7 (Conflict of Interest: General Rule), 1.8 (Conflict of Interest: Prohibited Transactions), 1.9 (Conflict of Interest: Former Client), 1.10 (Imputed Disqualification: General Rule), 1.11 (Successive Government and Private Employment), 1.12 (Former Judge or Arbitrator), 1.13 (Organization as Client), 2.3 (Evaluation for Use by Third Persons), 3.7 (Lawyer as Witness), 5.4 (Professional Independence of a Lawyer) (1995). 3. JOHN GRISHAM, THE RAINMAKER (1995). John Grisham dedicates his novel to "American trial lawyers." 4. Memphis State University changed its name to The University of Memphis in 1994. 5. This phrase comes from the title of the book by the same name. DAVID HALBERSTAM, THE BEST AND THE BRIGHTEST (1972). 6. GRISHAM, supra note 3, at 140. 7. Id. at 129-30. 8. See generally MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.3 (1995) (Direct Contact with Prospective Clients). 9. The headlines of the Memphis newspaper, The Commercial Appeal, recently proclaimed that the Tennessee House of Representatives was "prepared to back bill against ambulance chasing." Paula Wade, House Prepared to Back Bill Against Ambulance Chasing, THE COMMERCIAL APPEAL, Jan. 18, 1996, at B1. The first paragraph of the article stated: "If the Tennessee Supreme Court doesn't curb ambulance-chasing lawyers, House members say they're ready to do so." Id. The problem, however, is one of national scope. See Can the Profession Save Itself?, THE AM. LAW., Nov. 1994, at 5; James C. Lawson, ...And Justice For All: Does New Jersey's Legal Ethics System Work?, BUS. J. of N.J., Sept. 1992, at 31; Dana Coleman, Message from Whitman; It's Up to the Supreme Court to Control Ambulance Chasers, N.J. LAW., Jan. 15, 1996, at 3; Steven Setzer, Steady Rise in Workers' Comp Rates Sparks Big Texas Reform Effort, ENGINEERING NEWS-RECORD, Feb. 23, 1989, at 10; Tim O'Brien, SCI Folds Probe into Runners, N.J. L.J., Jan. 16, 1995, at 1. For example, in Texas, medical experts made public their inquiry into why 68 Rio Grande women had given birth to infants with bizarre birth defects. The Houston Chronicle reported that attorneys were contacting the mothers and seeking to represent them. The paper reported that the soliciting attorneys hoped that the tragedy would develop into "the next big legal bonanza." The report cited many other occurrences of illegal solicitation in which Texas attorneys were convicted of the misdemeanor of solicitation. However, most of the attorneys who were asked believed that ambulance chasing, for the most part, continues unchecked in the state. James Pinkerton & Glen Golightly, The Spoils of Tragedy; Profiting on Disaster, THE HOUSTON CHRONICLE, Aug. 2, 1992, at A1. In researching the rise in these problems, a University of Texas economics professor found that there are 250,000 excess attorneys in the United States. According to the professor, each of those attorneys takes $ 1,000,000 from the United States economy by filing frivolous lawsuits. The problem, according to the professor, is exacerbated by the large percentage of attorneys in Congress and the state legislatures. Id. 10. Grisham cannot be accused of indulging in euphemism. A considerable strength of his writing is his refusal to do so. 11. GRISHAM, supra note 3, at 137. 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. 17. See generally MODEL RULES OF PROFESSIONAL CONDUCT pmbl. cmt. 8 (1995). In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.Id. 18. Perhaps not insignificantly, Deck could not pass the bar exam. 19. The Author attended a continuing legal education seminar recently where a panel of judges, obviously beleaguered by the increasing surplus of unethical conduct and incivility, made a somewhat plaintive plea to the lawyers in the audience to "just follow the Golden Rule." 20. See generally MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3, cmt. 1 (1995). A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take what- ever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client.Id. 21. The great American writer, Theodore Dreiser, had a colorful perspective on lawyers. In the following passage, Dreiser describes his main character's attitude towards the profession: Lawyers in the main were intellectual mercenaries to be bought and sold in any cause. It amused him to hear the ethical and emotional platitudes of lawyers, to see how readily they would lie, steal, prevaricate, misrepresent in almost any cause and for any purpose. Great lawyers were merely great unscrupulous subtleties, like himself, sitting back in dark, close-woven lairs like spiders and awaiting the approach of unwary human flies. Life was at best a dark, inhuman, unkind, unsympathetic struggle built of cruelties and the law, and its lawyers were the most despicable representatives of the whole unsatisfactory mess.THEODORE DREISER, THE FINANCIER 291 (Meridian Classic 1986) (1912). 22. This scenario may be especially likely when a short-sighted lawyer does not have, or expect to have, repeated engagements by the client. 23. A poor client might provide such opportunity if the client's misfortune provided access to another's deep pocket. 24. See generally MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.1 (1995) (Voluntary Pro Bono Publico Service). This is the only Model Rule stated in the aspirational form of "should." Comment 11 also notes that "the responsibility set forth in this Rule is not intended to be enforced through disciplinary process." 25. The principal, practical objections to mandatory pro bono rest on concerns about the quality and efficiency of mandated services, the bur- densome problems of administration and enforcement, the discouragement of charitable and bar association work if these activities are excluded from the required pro bono category . . . and, finally, a concern that, if adopted in only one jurisdiction, lawyers in that state will be adversely affected vis-a-vis their competitors in other states.GEOFFREY C. HAZARD, JR., ET AL., THE LAW AND ETHICS OF LAWYERING 1047 (2d ed. 1994). 26. See generally MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.1 (1995) (Competence). While the Model Rules are not intended to set a standard of care in civil litigation, inevitably they have some influence on the malpractice tort. 27. If it is not undertaken, the client may perceive the lawyer to be incompetent, weak, and not a "good" lawyer. 28. "About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." PHILIP C. JESSUP, 1 ELIHU ROOT 132-33 (1938) (quoting Elihu Root). 29. There is much written on the duties owed to third parties. Whether it is feasible to expect such? How much should we expect? How much is required? These are all very tough questions; the answers to which I will not attempt here. My only point here is to focus attention on the "good" that lawyers "produce." 30. The Code of Professional Responsibility, however, does not absolutize client service. It puts it in context. Since the lawyer is not just a private agent but an officer of the court, any single-minded subservience to the wish of the individual client without regard to the social conse- quence is wrong. The code does not countenance using one's professional membership as a cover for conduct known or suspected to be hazardous to the health of society. To subvert the common good for particular interest is to betray the trust.THOMAS HOLTON, PREFACE TO LAW: THE PROFESSIONAL MILIEU 229 (1980). 31. The Model Rules of Professional Responsibility impose an obligation on lawyers to report ethical violations by their colleagues. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.3(a)-(b) (1995) (pertaining to lawyers and to judges, respectively). However, "these obligations are not generally observed." HAZARD ET AL., supra note 25, at 887. 32. "Bar associations are notoriously reluctant to disbar or even suspend a member unless he has murdered a judge downtown at high noon, in the presence of the entire Committee on Ethical Practices." MURRAY T. BLOOM, THE TROUBLE WITH LAWYERS 157 (1968) (quoting Sidney J. Harris). 33. Tort liability can be viewed as a market mechanism designed to reallocate wealth. It was created by the political demand of those who believed that otherwise, the system gave them no bargaining ability. It gives the commercially weak a weapon to wield against the strong. 34. We can then join the doctors in lamenting over what a large part of our day is consumed by such "wasteful" activities. 35. "Thou shalt not steal." Exodus 20:15 (King James). 36. This seems consistent with the social consensus about stealing. It cannot be tolerated. Stealing is also clearly defined--taking something that does not belong to you. There is a wonderful body of well-developed criminal and civil law dealing with stealing and defining its parameters. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW sections 8.1-.13 (2d ed. 1986). 37. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.15 (1995) (Safe-keeping Property). Violations of this rule are treated very seriously, even if they are merely negligent. HAZARD ET AL., supra note 25, at 589; see, e.g., In re Pierson, 571 P.2d 907 (Or. 1977). 38. Economists would note that this is the product of a simple optimality rule. Where an actor perceives that the present value of his lost income is greater than the present value of the gain from stealing, the actor will not steal. 39. After all, the perceived benefits are great--work less and be paid more. And, where salary is based upon business generation, the temptation to overbill can be overwhelming. For a mere sample of the breadth of this problem, see Maura Dolan, The Lawyer's Bill is Out of Bounds; A Rise in Reports of Overcharging has Raised Concern. Most Attorneys are Conscientious, Officials Say, But the Pressure to Push Up Fees is High, LOS ANGELES TIMES, July 16, 1994, at A1 1 (Metro Desk); Louis J. Rose, Aide Accuses Attorney of Overbilling State Fund, ST. LOUIS POST-DISPATCH, April 7, 1994, at 10A; Saundra Torry, Decision Exposes the Pitfalls of Padding Legal Bills; Border Tries Again, The Wash. Post, Sept. 11, 1995, at F07 (Lawyers); Bill Zwecker, At Last, Woody gets a Break--on His Tax Bill, CHICAGO SUN TIMES, Aug. 1, 1993, at 28. The overbilling problem has created an entirely new type of "firm": the legal auditing firm. These new auditing firms have curbed the problem in some situations. For instance, a Los Angeles firm wrote off $2.7 million in fees after the auditors determined that the firm's charges were not equated with work. In another occurrence, an arbitrator reduced a law firm's fees request from $870,241 to $406,662 after a legal auditing firm determined that the firm had overbilled in the amount of $463,579, over 100% more than the earned amount. Darlene Ricker, Auditing Law Firms, 80 A.B.A. J. 65 (1994). 40. See generally Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J.L. & ECON. 67 (1973). 41. Geoffrey C. Hazard, Jr., My Station As A Lawyer, 6 GA. ST. U. L. REV. 1, 1 (1989) ("One of the most persistent criticisms of lawyers' professional ethics is that lawyers are permitted or required to act ex officio in ways that they would not consider proper in their personal conduct."). 42. MIGUEL DE CERVANTES, THE INGENIOUS GENTLEMAN: DON QUIXOTE DE LA MANCHA 666 (Samuel Putnam trans., Random House 1949) (1605); see also GEORGE WASHINGTON, FAREWELL ADDRESS (1796) ("I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy."). 43. See generally MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1995) (Confidentiality of Information). 44. A lawyer who knows a terrible truth is nonetheless in many instances duty bound to keep it confidential. For an excellent discussion of this issue under Tennessee law in the context of client perjury, see Ernest F. Lidge III, Client Perjury in Tennessee: A Misguided Ethics Opinion, An Amended Rule, and a Call for Further Action by the Tennessee Supreme Court, 63 TENN. L. REV. 1, 2 (1995) ("Client perjury has always been a difficult issue, challenging courts, disciplinary authorities, and commentators."). 45. "No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint." REINHOLD NIEBUHR, THE IRONY OF AMERICAN HISTORY 54 (1952). 46. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rules 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), 3.5 (Impartiality and Decorum of the Tribunal), 4.1 (Truthfulness in Statements to Others), 4.2 (Communication with Person Represented by Counsel), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 7.1 (Communications Concerning a Lawyer's Services), 7.2 (Advertising) (1995). 47. The Author remembers an attorney who considered himself to be "working man's ethical--you know, essentially, basically." As examples, he said that he would never lie to the court; he would not lie about legal authority; and he would not lie about the existence of documents. But, he also said that witness coaching was part of the job and settlement discussions with opposing counsel was "a whole separate ball of wax because that's negotiation." 48. GEOFFREY C. HAZARD, JR., ET AL., THE LAW AND ETHICS OF LAWYERING, TEACHING MANUAL 143 (1994). We think this point is worth driving home. Law students often come to think that legal safeguards can be devised for any purpose--that somehow the law can be made to "work" if only sufficient ingenuity is exhibited. But the lawyer-client relationship is one of many places where legal safe- guards are bound to be relatively ineffectual (family relations and the internal aspects of private associations also have this characteristic). After all, the relationship has to be shielded from the scrutiny of others, it in- volves parties whose knowledge and skill usually is greatly disparate and it often involves a single engagement--the lawyer and client will not have future dealings with each other. In today's world of distant human rela- tionships, the lawyer and client are not enmeshed in a set of wider connections that induce them to treat each other properly. Hence, a heavy element of personal self-discipline is unavoidably involved. One can sug- gest that, at bottom, this is what professional responsibility is all about. One can ask the students to ask themselves whether they are up to that responsibility.Id. 49. "Law cannot restrain evil; for the freedom of man is such that he can make the keeping of the law the instrument of evil." REINHOLD NIEBUHR, Human Destiny, in THE NATURE AND DESTINY OF MAN 38 (1951). 50. "And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat." Genesis 3:6 (King James) (emphasis added). 51. Gary Becker was among the first to deal with the issues of criminal motive and economic incentive. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968). Becker's paper is a fascinating analysis of the economic significance of crime and how social resources should optimally be invested in enforcing legislation. There is no reason to believe that professional ethics are not subject, at least in some respects, to his analysis. As Becker notes, one of the important underlying premises of this economic thesis is that "obedience to law is not taken for granted, and public and private resources are generally spent in order both to prevent offenses and to apprehend offenders." The fact that lawyers have developed ethical codes and disciplinary boards is empirical support for this statement. In speaking about the "supply of offenses," Becker makes the following observation: The approach taken here follows the economists' usual analysis of choice and assumes that a person commits an offense if the expected utili- ty to him exceeds the utility he could get by using his time and other resources at other activities. Some persons become "criminals," therefore, not because their basic motivation differs from that of other persons, but because their benefits and costs differ.Id. at 176. Becker concludes his essay with the following comments: "Lest the reader be repelled by the apparent novelty of an 'economic' framework for illegal behavior, let him recall that two important contributors to criminology during the eighteenth and nineteenth centuries, Beccaria and Bentham, explicitly applied an economic calculus." Id. at 209. 52. "There is a certain distrust on the part of our people as to the effect of material prosperity on their morality. We shrink with some foreboding at the great increase of riches, and question whether in the long run material prosperity does not tend toward the disintegration of character." LARZER ZIFF, afterword to THEODORE DREISER, THE FINANCIER 451 (Meridian Classic 1986) (1912) (quoting the Right Reverend William Lawrence from his article in World's Work (1901)). 53. For a wonderful tribute to an individual who viewed the law as a higher call- ing but in the context of a full life, see Irma S. Russell, An Authentic Life in the Law: A Tribute to James K. Logan, 43 KAN. L. REV. 609, 617 (1995) ("To guard against fragmentation and isolation, the practitioner must invest himself in real commitment to work and clients without abandoning his private life. He must care about the client but value home and family, and he must combat the self-importance that Elkins refers to as 'inflation' and 'illusion.'"). 54. This is a corollary of Justice Holmes' famous remark: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881). 55. It is a point better made by many before me. In fact an entire academic discipline, that of economics, has a rich, intellectual history predicated on the principle of wealth maximization. Wealth maximization only makes sense in the bigger context of a world where all living things compete for scarce resources. Wealth is a relative concept. If resources were infinite, all would be wealthy. 56. One of the shrewder observations of human nature was made by a humorist named Kin Hubbard. 'When a man says it hain't the money but the principle o' the thing,' this fellow commented, 'it's th' money.'MARK H. MCCORMACK, THE TERRIBLE TRUTH ABOUT LAWYERS 94 (1987). 57. To the extent one believes that somehow our "intelligence" distinguishes us from the other animals, it provides no relief from the operation of the scarce resources principle. Man may not live by bread alone, but he cannot live without it. Moreover, in large part, he spends, as do the ants, the bees and the wolves, the majority of his wak- ing hours engaged in activities which insure that there will be bread and as much bread as possible. The converse of all this is that humans probably tend to minimize the activities that do not put food on the table. This is not meant to suggest a lack of faith in human kindness, altruism or potential for greatness but only to say that Maslow had a point--those concerned with eating and shelter are less concerned with other things. Humans, as all animals, tend to be very interested in their own survival. ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 80-84 (1954). 58. In America, there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply, without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and bar. ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 278 (Francis Bowen trans., Vintage Books 1990) (1835). 59. United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945). 60. There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict duty and propriety; in which so many delicate and difficult questions of casuistry are continually arising. There are pitfalls and man-traps at every step, and the youthful adventurer needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. GEORGE SHARSWOOD, A COMPEND OF LECTURES ON THE AIMS AND DUTIES OF THE PROFESSION OF THE LAW 9 (1854). 61. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 481 (1988) (O'Connor, J. dissenting). Justice O'Connor, in her dissent, expresses the view that "the roots of the error in our attorney advertising cases are a defective analogy between professional services and standardized consumer products." Id. at 487. 62. Let me not be thought as intending anything derogatory to the profession of the law, or to the distinguished members of that illustrious order. Well am I aware that we have in this ancient city innumerable worthy gentlemen, the knights-errant of modern days, who go about redressing wrongs and defending the defenceless, not for the love of filthy lucre, nor the selfish cravings of renown, but merely for the pleasure of doing good. Sooner would I throw this trusty pen into the flames and cork up my ink bottle forever, than infringe even for a nail's breadth upon the dignity of these truly benevolent champions of the distressed. On the contrary, I allude merely to those caitiff scouts who, in these latter days of evil, infest the skirts of the profession, as did the recreant Cornish knights of yore the honorable order of chivalry,--who under its auspices, commit flagrant wrongs,--who thrive by quibbles, by quirks and chicanery, and like vermin increase the corruption in which they are engendered.WASHINGTON IRVING, A HISTORY OF NEW YORK 261-62 (1868). 63. "There is no real gap between self-interest and the ethical norm for the clear reason that the two do not exist on the same level of actuality: self-interest is a real force; the ethical norm is a set of terms applied after the fact." LARZER ZIFF, afterword to THEODORE DREISER, THE FINANCIER 454 (Meridian Classic 1986) (1912). 64. Obviously, an expanded bar has enormous social advantages in that many deserving members are not excluded merely because they lack the social characteristics of a tighter knit group. 65. See Jay G. Foonberg & Zora Em Speert, Practical Ways to Win the Battle for a Balanced Life, 22 BARRISTER 9 (1996). Among other things, this article expressed the following beliefs: (1) "Being a full-time lawyer and, simultaneously, a full-time parent is not possible[;]" and (2) "The crisis of not enough hours will worsen as lawyers have responsibility for their own parents as well as children. It is estimated that by the year 2000 half of the work force will have parents requiring their assistance." Id. 66. "Lawyers have been affected by the same wave of downsizings that have sent workers in other fields looking for jobs . . . . Most of the legal casualties . . . were associates . . . but 7 percent of laid-off lawyers were partners making an average $ 175,500 in base salary." ST. PETERSBURG TIMES, July 10, 1994, at 8H. 67. See generally Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884). This famous criminal law case requires one to directly confront the aftermath of a head on collision between the need to eat and society's mores. Id. 68. We only meant to make society better. Law would lay everything out for us. But law cannot save us from ourselves. Waking up every morning, we have to go out and try to accomplish our goals and resolve disagreements by doing what we think is right. That energy and resourcefulness, not millions of legal cubicles, is what was great about America. Let judgment and personal conviction be important again. There is nothing unusual or frightening about it. Relying on ourselves is not, after all, a new ideology. It's just common sense.PHILLIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA 187 (1994). 69. "It appears to me that in Ethics, as in all other philosophical studies, the diffi- culties and disagreements, of which its history is full, are mainly due to a very simple cause: namely to the attempt to answer questions, without first discovering precisely what question it is which you desire to answer." GEORGE E. MOORE, preface to PRINCIPIA ETHICA (1903). 70. Anthony Kronman makes a similar plea at the end of his book, The Lost Lawyer: Failing Ideals of the Legal Profession. In the final chapter entitled, Honesty and Hope, he acknowledges, with excruciating honesty and objectivity, his responsibility for the profession's plight: For the most part, I suspect, things will go on much as before, and the profession will drift more and more in the direction it has been moving this past quarter-century. Of course, each generation of lawyers makes its own contribution to the architecture of the law. The contribution mine has made has been to tear down the old system of ideas and institutions that gave the lawyer-statesman ideal its authority and power. The next, perhaps, will begin the work of rebuilding what we have torn apart. That may happen, and I hope it does, though I doubt in fact it will. But even if it does not, those who see the ideal and seize the opportunity to realize it in their own work will win for themselves a prize of infinite value, like the sailor in a storm who manages, somehow, to save himself and his ship's most precious cargo.ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 380-81 (1993). 71. GRISHAM, supra note 3, at 434. |
