Professional Responsibility is in my teaching portfolio. I teach the Model Rules but also professional values. Without the second, we are left with just so much useless scaffolding. Here then are just a few of those many values with some thoughts on how to transmit them.
No. 1 : The Value of Winning
This may seem like an odd place to start. After all, we seem to be living in a legal world in which compromise is the most cherished value, and putting up a fight the least. But Model Rule 1.2 (Allocation of Authority) states that the client sets the goals and we set the agenda to meet them. And, guess what, there are times that the client wants to fight and win.
I learned the means to teach that value from a student. We chat in the library: “I like PR. You teach it in a philosophical way.” Puzzled, I ask what she means. “Well you talk about the history of the rules and why we have it.” I realized then that I was not explaining effectively the reason for why I teach that way. Switch to the following week and my new frame: “In your career, you will be in thousands of fire fights against opposing lawyers. And I promise you that the lawyer who knows the rules and the reasons for them will have the advantage over the lawyer who just knows the rules, whether in PR or other areas.” This frame works so much better.
No. 2 : The Value of Diligence
Seems obvious, doesn’t it? MR 1.3 is direct: ”A lawyer shall act with reasonable diligence and promptness in representing a client.” Work hard, maintain a conscience, and all will be well. But this value goes deeper. It requires the lawyer to think about the client both retrospectively and prospectively. We will not live forever so, if a solo, do you have a plan for another lawyer to take over your files when you die (or are disabled)? If not, you are violating the rule.
Do you confuse “no harm” with “no foul”? In class I recently posed a hypothetical to a student: “You pull an all-nighter to get a brief filed at 5 p.m. You get it done. The client loves it. Whew! Did you violate the rule?” A wise student asks: “How long did I have to get the brief done?” I say: “One month.” He nails it: Violation.
No. 3: The Value of Self-Sacrifice
Many of the rules are animated by this value. “Self-sacrifice” as a concept won’t appear anywhere in the academic literature or the commentary to the rules or in the case law. But it’s there and it’s real. It is embodied in Model Rule 1.8, what I call “Personal Conflicts”: Do a business deal with a client and you must warn them that you may put your interests ahead of them; fall in love with a client and embrace delayed gratification (no sexual activity); get stiffed by a client on fees, but don’t accept media rights for a high-profile case until the matter is over.
In teaching this value, I give a history lesson. The law did not start the day you entered law school. No, it stretches back over 2,000 years. You are a lawyer in Ancient Rome and you must go to the town square and “professus” to the fellow citizens that their needs came ahead of your needs. From the Latin comes “professional.”
No. 4: The Value of Discretion
The Model Rule is 1.6, “Confidentiality of Information.” This is an absolute rule with only a few exceptions. (In teaching, I draw an unmarked outline of an Absolut Vodka bottle and challenge the students to identify it. Usually a former bartender gets it; exceptions are called “mixers,” so a rule is either straight up or with “mixers.”) It is a value because clients must be able to tell us anything and know that we will not blab. If they do not have that trust, then we cannot effectively represent them. We do this even when it hurts. (Check out “Professus” supra.) State Bar of Texas Ethics Opinion No. 663 embraces the concept that if a lawyer is slammed by a client in a social media review, she may only respond “to the extent necessary” and not do a data dump of confidential information in response.
Value No. 5 : The Value of Loyalty
MR 1.7 deals with concurrent representation. You represent the Cowboys quarterback in contract negotiations. Jerry wants to hire you to evict box holders behind on their rent. No can do. The QB would always be wondering “Do I come first or does Jerry?” Seneca, a Stoic philosopher, wrote that “loyalty is the greatest good in the human heart.” He knew values.
But the most important value, the one that ties together the universe of values, is this: faith. The legal system works because we have faith in other lawyers and in judges and in jurors to follow the rules. To embrace the rule of law. Because no amount of sanctions or discipline can compel lawyers to follow the rules. There are not enough courts nor disciplinary committees to do that. And what is “faith”? Where do you find it? Can you draw a map? No, because it lives inside of us.
I leave you with Hebrews 11: “Now faith is the substance of things hoped for, the evidence of things not seen.”