Believe it or not, but there are critics of our ethics rules. I know what you’re thinking, “How could that be? They are PERFECT.” I’m sorry to burst your bubble, but there really are scholars who have taken shots at the code.
One of the biggest complaints is that the current code amounts to nothing more than a how-to manual. How-to stay away from a grievance. Surely you’re wondering how that can be a bad thing! Well, staying away from grievances is good, but is that all our ethics code is really supposed to be about? The critics contend that the current code is harsh and devoid of the aspirational goals and the statements of morality that could be found in the predecessor codes. It’s a valid point, but I understand why the code is written that way. To get a real picture for what I mean, you need consider Watergate. Yup, the actual Watergate fiasco.
After the fallout from that disaster, the powers that be realized that many of the people implicated in the scandal were lawyers. Plus, many of the lawyers implicated— and many of their colleagues across the country — really didn’t take the ethics rules seriously. As a result, the authorities had to reform the code and I believe that’s why they created such a harsh set of rules. I believe that they took out the aspirational elements from the disciplinary rules because they had to reinforce the idea that there really would be disciplinary action if you acted inappropriately. The problem? In doing so, they removed all of the morality from the code.
The current code tells us how we “could” act. It tell us when our actions are subject us to discipline. it does not, however, tells us how we “should” behave.
That’s an important distinction. In other words, just because we “could” do something, does it mean we “should” be doing it? Just because some action taken in the course of our practice won’t subject us to discipline, is it still “right” to take that action? That disconnect is something the drafters have been considering since the publication of the modern code in 1983. And over the years you’ve started to see a flurry of new “professionalism documents” being adopted across the country. Basically, these professionalism codes are trying to reinforce the need to behave in a morally acceptable way. Though they are the product of individual states, the all seem to share the same sentiment— they are talking about how we “should” be behaving.
One word that you don’t see in many of these new professionalism documents is “zealous.” The reason is clear. The word zealous has been used by many lawyers to cover up all manner of sins (yes, that was a Watergate shout-out) I shudder to think about how many ethical violations have been committed in the name of zealous advocacy. I believe that the drafters have the same concern. I believe they know that lawyers push the edge too far, and try to cover it up by claiming to be “zealous.” Well, I believe that lawyers need to start thinking about behaving in a morally acceptable manner. We need to voluntarily aspire to behave better. And that might not be compatible with the old school definition of zealous (just for the record— I am old school age. But I’d like to think that I’m learning some new tricks).
I explore the relationship between what we “could” do and what we “should” do a little more in a CLE program I recorded called “The Dirtiest Word in Ethics, Zealous.” In that program I also provide my version of the optimal lawyer attitude (sorry, no spoilers!) You can find that program by clicking here.