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Legal Ethics Redux |
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Copyright © 2001 by Dave Badtke |
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Last week’s column, “Contingency Fees v. Legal Ethics”, resulted in an interesting online discussion, prompting me to post additional comments to the column thread in an effort to clarify my views. And I suppose that would have been enough on this topic except that the front-page, above-the-fold story in last Sunday’s New York Times framed the issue of contingency-fee ethics in yet another way that deserves discussion. First, though, some comments on the comment threads. Reflexive reflection, I suppose. I enjoyed all the comments, though some were more vituperative and personal than others, which is the writer’s right. In particular there was a comment with subject title “First let’s kill all the lawyers” by Right On which made the point that the California Trial Lawyer’s Association contributes sizable amounts to political parties. Unfortunately, some might not have read this person’s comments given the strident title. The phrase in the subject is frequently used by those who would disparage lawyers, though many may not know that these words are spoken by a thug in Shakespeare’s King Henry VI, Part II. In act 4, scene 2, Dick Butcher (a very appropriate name), a member of Jack Cade’s rebel gang, says: “The first thing we do, let’s kill all the lawyers.” Cade has been enlisted to foment rebellion against the beneficent Duke of Gloster by the Duke of York, a Machiavellian character who believes that any means justify his ends, including mayhem and murder. In other words, using this quote is like quoting a criminal. The Reader’s Guide to Shakespeare by Joseph Rosenblum states that: “Cade’s ambitions are absurd, his logic clearly false, his promises beyond all that is possible. He is a caricature. Underlying this grotesque veneer is a more sinister truth. Cade and his rebels have might but no judgment, and they abuse whatever power they gain. Their rebellion violates the established political and moral orders.” (p. 149, 1999 edition.) As I said in my clarifying comments last week, my column “Contingency Fees v. Legal Ethics” will be interpreted by some as lawyer bashing, which was not my intent, but readers read within their own context, not the writer’s, and will make of my writings what they will. Our country would be a third-world nation without education and law. Natural resources, land, and a free-market may make a nation wealthy, and health may immeasurably improve the quality of our lives, but education and law are essential to the creation of a sustainable democracy. Absent education, our constant struggle against stupidity would be lost. Absent law, our nation would quickly decay into an abusive political system, of which there are many past and present examples: monarchy, dictatorship, and oligarchy, to name just a few. While businesses are also essential to our communities and nation, we must always remember that they are oligarchies and meritocracies organized to make a profit, though the self-serving argument that businesses are usually meritocracies is frequently at odds with the organizational structure of companies. (Which is a euphemistic way of saying that some of our bosses are lamebrains.) We should not look to businesses for a model of democracy, but should look to them to understand how systems can be managed more efficiently and with greater innovation. Considering the professions of medicine, education, and law, their overarching goals are the following: Medicine: While doing no harm, help us into the world, make us feel better while we’re here, and help us leave the world. Education: Guard us from stupidity. Help us realize our full potential within the context of our democratic society. Law: Guard our democracy by understanding and practicing its rules when they are just, and by working to change its rules, within the rules, when they are unjust. Defend all who are accused of violating the rules so that arguments can be fairly voiced and resolutions justly found. This is my list. Yours is probably better, more complete, especially if you’re a doctor, teacher, or lawyer. I’ve undoubtedly left many things out. But I have not included making money, one of the overarching goals of business, though appropriate remuneration is essential and some within these professions make a lot of money. When money becomes too dominant in these professions, it becomes a problem: Some will begin to believe that money is the raison d’être for the profession. And when such a concern obtains, the practitioners need to reexamine their overarching goals and the ethics that underpin them to ensure that money hasn’t crept on to the list. Mathew F. Talbot commented last week that considerable remuneration is not at odds with professional goals: “…[T]here is nothing intrinsically wrong with making lots of money as a lawyer or doctor or anything else; this is how our society has decided to reward skills which it values,” and goes on to make additional arguments for contingency fees, as does another writer who calls himself ‘A Student of the Law’. While I agree in principle with some of what both these writers say, the perniciousness of contingency payments lies hidden in the phrases ‘lots of money’ and ‘how our society has decided’. In this case the devil lurks less in the details than in greed’s crafty creep into all we do. And greed brings me to the June 24 New York Times article: “S.U.V. tire defects were known in ’96 but not reported; 190 died in next 4 years; Lawyers and Safety Consultant opted to protect victim’s suits against Firestone.” Claiming that they feared the National Highway Traffic Safety Administration would be unresponsive, a group of personal-injury lawyers and Sean Kean, a safety consultant, did not notify anyone regarding the increasing evidence they were accumulating that somehow Firestone tires on Ford Explorers were killing people. They didn’t go to the newspapers. They didn’t go to their elected representatives. For four years they compiled evidence in support of their case and told no one who could have helped save lives. Mr. Kane said that maximizing the monetary award was the lawyer’s primary responsibility: “…[T]he lawyers’ first duty was to win as much money as possible for the crash victims whom they represented.” Is this unethical behavior? According to ethicist Geoffrey C. Hazard Jr., the Trustee professor of law at the University of Pennsylvania Law School, it’s not because of the term ‘legal’: “‘They had a civic responsibility the same as you or I do, but they didn’t have a legal duty’ to report the tire problems.’” According to The California Rules of Court, Rule 5-300, “Suppression of Evidence”, the term ‘legal’ is very significant in this context: “A member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or to produce.” The evidence section of the Standard California Codes, section 956.5 clarifies the “legal obligation” that requires a lawyer to release confidential client information if he believes a serious crime may be committed: “There is no [lawyer-client confidentiality] privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.” In other words, if it isn’t a crime against a person, there’s no requirement that the information be provided by lawyers. Of course, ‘crime’ and ‘legal’ mean one thing to lawyers and something else entirely to the rest of us. It will be interesting to see if these attorneys are eventually disciplined or disbarred for their unethical behavior, where here I use the layperson’s definition of unethical. For the families of those who were killed or injured, some of whom might have been saved during four years of inaction, one can only feel great sympathy. To these families, legal, criminal, and ethical are not the nuanced words of professional and philosophical discussion. To these families, the interpretation of these words allowed others to exchange silence and the lives of those they loved for “as much money as possible.” |
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- Dave Badtke can be contacted at: www.CarquinezReview.com; Dave@Badtke.com; PO Box 763, Benicia, CA 94510; or by calling 707-745-5540.
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