“Once the rockets go up, who cares where they come down? It’s not my department.”
— Wernher von Braun
I saw this quote recently referenced in an article on the topic of whether transactional lawyers had any ethical obligations to pass judgment on whether a particular deal should happen. The author wondered whether there might not be a social obligation that would require that lawyers counsel against things which, though advantaging their clients in the short term, might not cause great social harm in the long term. A provocative idea, and somewhat aligned with a point I have been making to law students in ethics classes for several years.
I like to use what I call the lawyers’ moral compass as an instructional tool. At the north pole, I put the client. At its simplest, client service is what it is all about. But no compass has just one pole, and no course is steered without reference to all of the other compass points.
A second, and perhaps equally important pole is the one where I place institutional duties. Clients’ cases would be easy if we did not have to worry about frivolous or oppressive pleading or practice. Other cases would be easily won if we didn’t have to worry about perjury. But any lawyer who loses sight of their institutional duties will soon realize how jealous of their prerogatives courts are and how quickly judges will come down hard on those who forget their dual roles as advocates and as members of the bar.
I always flesh out a third pole of the compass related to the lawyer’s own self. Folks who don’t take care of themselves and who don’t listen to their inner voices are soon ground down and burnt out, either physically or spiritually, by the tensions between the demands of others and the demands of self.
The final pole I offer is the one I call social or community duty. I readily admit that this point can be controversial. I have had some, including some judges, argue that there is no social duty, only institutional and client ones. Maybe. But maybe professionalism includes something more than hewing to the minimum. Might there not be room to imagine our purpose as something better?
All of this came up the other day during a very difficult conversation with a young lawyer who found herself in a very hard place. In a misguided attempt to serve a client, she may have crossed a line and exposed herself to criminal prosecution. I really couldn’t be too hard on her, because the sin occurred during the frothy, heady days of the real estate bubble, and she did what many lawyers, new and experienced alike, did. These folks turned a blind eye to what, in retrospect, may have been clear fraud by lenders, mortgage brokers, buyers and sellers, all of whom were gaming the housing market for their own ends.
I prosecuted one of these guys before the subprime crash, and the Statewide Grievance Committee actually dismissed the case, apparently reasoning that making a deal work with the use of phony credits and phantom deposits was all part of a legal fiction everyone was engaged in in order to make housing available to low-income people. After one lecture where I scolded a bunch of real estate lawyers for this conduct, a few of them challenged me that they were doing good work and that the ends justified the means. I offered that if they wanted to commit crimes to help folks buy houses, they should rob liquor stores and give their clients the cash. As least it would not be a federal crime.
Others argued that they had no duty to peek under the covers. If the clients brought them suspect deals, their jobs were not as gatekeepers or guardians. They were advocates and facilitators. I called this the von Braun approach. “We just make the missiles. We don’t point them, and it is not our problem where they land.” Well, they have landed, and landed on us.
Of course, it has never been acceptable to counsel a client on how to break the law. But Rule 1.2 allows a lawyer to guide a client as to the moral, political and social ramifications of a particular course of conduct. Perhaps one lesson from the collapse of the real estate bubble will be that we move away from the von Braun approach.•