Tuesday, October 20, 2009



Law firm websites amuse me because they all use similar words. Generally, they like to advertise their ability to "win" so that new clients will hire them. After all, potential litigants want to win their lawsuit; there's a lot of money at stake. And no one likes losing money. In essence, law firms strut their prowess in obtaining "favorable outcomes." You constantly run across muddy phrases like: "result-oriented," "client-focused," "winning team," "success-centered" and "dedicated to your cause."

You could be forgiven if you thought law firms were sports teams. After all, they talk about winning all the time. Does that mean legal disputes are simply games? If you read civil procedure rules, you might think they are.

But I am not writing today to draw parallels between gaming and the law. Instead, I am writing to argue that the legal profession's relentless fixation on "results" requires lawyers to adopt a "result-determinative" approach to problems. That approach, in turn, makes it impossible for lawyers to adhere to larger principles without sinking into a conflict of interest.

American lawyers occupy an awkward philosophical position. On the one hand, they swear to advance principles such as "justice," "right" and "honesty" as "officers of the court" in a democratic system. Put briefly, lawyers swear to adhere to an "honor code." Put broadly, "honor" means that a person adheres to certain metaphysical ideals no matter the circumstances, even if it is unprofitable. Honor imposes restrictions on the means calculated to obtain certain results. Yet lawyers constantly use words like "results," "outcome," "winning," "goal" and "dedication to client interest." These concepts involve the ends of particular conduct, not means. An honorable man refuses to adopt certain tactics to obtain ends, even if the ends are favorable. But that puts lawyers in an uncomfortable position, because they also swear to "zealously advocate their clients' interests." In short, how can a lawyer both remain true to his honor code while retaining every trick in the book to win for his client?

As a profession, lawyers almost invariably sink into ethical conflict. Law schools attempt to remedy this problem by forcing lawyers to take an "ethics course," while States force them to take an "official ethics exam" before admission to the Bar. But ethics is not about external compliance and multiple-choice answers. No, ethics is about spirit and character. It is internal, not external. It is hard to police and even harder to teach. There is an immense difference between "the rules for being an honorable person" and "being an honorable person." Lawyers learn the rules; that is all they need to do. It does not matter whether they actually are honorable. In fact, the substance of their work makes honor almost an impossible path.

People throw around the term "conflict of interest" all the time. For the longest time, it made no sense to me. I knew it was bad; I just did not understand it. I did not grasp what it meant until I went to law school and saw what lawyers do. A conflict of interest simply means that a person attempts to serve two masters. It is about loyalty and integrity. If a person gives his full loyalty to one "master," there is no way he can be fully loyal to the other. Thus, a conflict of interest cripples a person's ability to be faithful to another. And it is not just about money. Conflicts of interest can arise between principles, too. Put another way, a person cannot remain faithful to a set of principles while contradicting those principles in the service of someone else.

This is what happens with lawyers. When the State administers the attorney's oath to newly-admitted lawyers every year, it obligates them to advance core principles, like justice, fairness, honor, integrity and collegiality . But at the same time, lawyers take an oath to "fully and zealously represent clients." From the very first moment, then, lawyers swear to serve two masters. They promise to vindicate larger principles at the same time they promise to obtain "favorable results" for their private clients. Private clients do not care how lawyers get the results they want; they just want the results. In this climate, how can a lawyer maintain his honor?

Are there any honorable lawyers in the world? Probably. I did not encounter many when I practiced. In truth, that is not surprising given the impossible ethical position lawyers must occupy. Consider this: Honor imposes restrictions on the means and methods calculated to reach a certain goal, while clients demand a certain goal. If a dishonorable method is the only way to achieve that goal, how can the lawyer remain true to both his honor code and his client?

In my view, lawyers' obsession with "client focus" and "results" reveals their predisposition to abandon honor when necessary. When a person deeply wants to achieve a goal, he adopts the means most likely to achieve it. Honor, however, might bar a person from resorting to the most effective means. Do lawyers have the courage to abstain from certain victory merely to appease their ethical sensibilities? If a lawyer could win a multimillion dollar case through some trick--and he knew no one would ever discover it--would he resort to it? If he were loyal to his honor code, then he would not. But he would if he were loyal to his client. His client wants to win. The client does not care about honor. He just wants victory at the lowest cost and lowest risk. If a dishonorable means leads to victory at low cost and low risk, so be it.

Lawyers contend with these philosophical tensions every day. They face inevitable conflict between their clients' wishes and the principles they swore to uphold. Most troublingly, this conflict has a decidedly commercial dimension. After all, lawyers need money to stay in business. Only money pays rent and keeps offices running. Only money buys cars and sends kids to college. It takes money to pay the heat bill and buy presents for your wife at Christmas. Between principles and clients, who pays money? Only clients. In that light, to whom do you think a lawyer will give his maximum effort? Honor doesn't stand a chance in these circumstances. Debt collectors do not take "honor" or "principle" as payment; they take cash, checks, money orders, bank transfers or MasterCard®.

Lawyers might say they support justice, fairness and right. They might insist that they have integrity. They might even think they have honor. They might point to the wall and show you their Bar Association plaques. Still, did justice or integrity pay for their offices? No, winning cases for their clients did. That does not necessarily mean that winning is always dishonorable. But adopting a "flexible" approach to honor greatly increases a lawyer's chances to win a case. At day's end, winning matters. Law firms say it themselves. Why should a lawyer hamstring himself with honor? Great players don't win by tearing plays from the playbook; they keep every option open.

Adopting a "result-oriented" approach to any human enterprise inevitably leads to a debate about probability. If a person wants results, he adopts means that will "most probably" lead to those results. Yet honor excludes certain means. In that sense, honor represents a barrier to sought-after results. Honor reduces the probability of obtaining results. For the result-oriented person, that is an unbearable idea. When winning matters, it is frustrating to know that effective tactics are off the table.

Honor takes many tactics off the table. For a lawyer who swears to obtain results for a private client, that is not good. Pleasing the client leads to monetary success. Fulfilling honor, by contrast, gains nothing except intellectual satisfaction. As commercial actors who need money to stay afloat, lawyers cannot survive on intellectual satisfaction. Rather, they must please their clients. In so doing, they reveal their classic conflict of interest: Client wins; principles lose (if necessary).

Their own rhetoric shows which master matters more. You don't see law firm websites advertising "polite lawyers who try their best to win consistent with overreaching ethical imperatives, but who refuse to adopt certain dishonorable methods to win you money." Nor do you see websites proudly describing their lawyers' refusal to countenance client fraud to win a case. No, ethical victories don't make good advertising material. Money victories do. Results sell, not principles.

I would like to see an honest law firm slogan: "We're all about results : You don't care how you get 'em… and neither do we."

In this environment, how can honor survive? When results are all that matter, how can a lawyer insist on principles that might threaten those results?

1 comment:

SteveW said...

I know you and I have disagreed on this in the past. Conflict of interest is about serving two client masters, not serving the client versus serving [insert larger principle here].

I see ethics and principles as not in conflict with my client interests. Just as the wrenches in my toolbox come in certain sizes and can only apply certain amounts of torque without breaking, so the ethical and general legal obligations of our profession define the ways that I can argue and the legitimate arguments I can make.

I have had to tell clients things they did not want to hear on many occasions. They have, at times, sought other counsel. Generally, they have been grateful that a long and ultimately losing legal process was avoided.

Clients want to know, generally, what they have a right to, and to make darn sure they are not being screwed by the system. However, my clients do not want things they are not entitled to - that is their explicitly stated goal and their actions seem to back it up. I truly believe those clients and law firms that want things they are not entitled to, and that want to abuse the system to get their way regardless of the truth, are the exception and are generally ferretted out over time.

I know that your legal experience has, regrettably, been different than mine.