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The duty of lawyers to be loyal to their clients is core to the practice and our system. There are other imperatives too: one, the need to behave honorably and not distort the law; two, the need to maintain a sense of outrage; and three, the need to say, "No."
The American Lawyer
By Aric Press
October 01, 2009
I'm not easily surprised these days, but I found myself agog several times this month as I read about the failures of lawyers. The attorneys on the enforcement staff at the Securities and Exchange Commission, under trained and overmatched, miss the Madoff swindle. Pfizer Inc. pays $2.1 billion and pleads guilty to end the federal probe of its improper off-label marketing of a flawed painkiller, a sales strategy which its general counsel's office had been warned about but didn't thwart. Faced with a colossal environmental disaster as a result of a coal-ash avalanche, staff lawyers at the Tennessee Valley Authority narrow the scope of a follow-up investigation in order to hide their agency's complicity.
It's a nasty trifecta: incompetence, bad judgment, and deception. There is much to be said about each episode, but I'd like to focus on one common thread. Each time, the lawyers involved came to the wrong conclusion, failed to do their work, or pushed an angle too far or too hard. Each time, the resulting embarrassment and loss came to haunt the people who had hired them to provide aid, counsel, and a modicum of protection from themselves. In most contexts, these people are known as clients. Here the parties who suffered were a much broader group, including investors, shareholders, and citizens.
The suffering was widespread--except of course for the lawyers who, while perhaps personally abashed, returned to their practices or found themselves promoted. Indeed, even the critical report about the TVA lawyers added that they "did what good lawyers do, they defend their client." Is that really what good lawyers do? They protect their client today so that their client can be embarrassed tomorrow?
Perhaps it doesn't have to be that way. I found a different path outlined in, of all things, a sermon delivered earlier this year by one of our contributing editors, Stephen Gillers, the New York University Law School ethics expert. In a talk he gave at a Manhattan synagogue, he urged lawyers to hold themselves to standards higher than the ethics codes might require. Gillers doesn't quarrel with the duty of lawyers to give sound legal advice to clients, even if that advice sometimes leads to unfortunate ends. The duty of lawyers to be loyal to their clients is core to the practice and our system. But he speaks of three other imperatives too: one, the need to behave honorably and not distort the law; two, the need to maintain a sense of outrage; and three, the need to say, "No."
His talk is too long to quote here. For the full text go to centralsynagogue.org. This fragment should suffice: "Most American lawyers . . . are counselors or advisers, operating where there is no judge and no adversary. No one is watching. And there may never be anyone watching. Then, the temptation is to push the limits, sift the language of the law, find hidden meanings. . . . Our law cannot be defined solely by the limits of a lawyer's linguistic imagination. That is a recipe for destabilizing the rule of law, not preserving it."
For the power of "No," he relies on the famous wisdom of lawyer-statesman Elihu Root: "About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop." Root and Gillers make no exception for pharmaceutical companies or public agencies, because I think they are saying that stopping clients from doing foolish things—however profitable they may be in the short term—will prevent subsequent shaming and penalties. As the TVA report says, good lawyers help their clients avert liability. But they just don't do it by setting them up for public humiliation.
Perhaps it's time, to use the current cliche, for lawyers to have a little skin in the game. Here's a modest proposal: Each time their work leads to the shaming of a client, the lawyers involved get to explain themselves to Judge Rakoff.
