News
Discipline
Feb. 21, 2002
Weakening of Ethics
Forum Column - By Robert S. Thompson - In his 1994 book "The Betrayed Profession: Lawyering at the End of the Twentieth Century," Sol M. Linowitz virtually predicted the alleged role of nationally regarded Vinson & Elkins in the Enron fiasco.
Forum Column
By Robert S. Thompson
In his 1994 book "The Betrayed Profession: Lawyering at the End of the Twentieth Century," Sol M. Linowitz virtually predicted the alleged role of nationally regarded Vinson & Elkins in the Enron fiasco. Linowitz describes a time a half-century ago when leading lawyers were considered to be part of an elite group because of their adherence to a code of professional conduct that looked beyond codified canons of ethics to their spirit and understood the moral imperative imposed upon lawyers because of their quasi-public function. Lawyers during this time are described as telling even the most valued client, "Yes, what you want is legally correct, but it is wrong, and if you pursue it I won't represent you."
Contrast the Enron disaster. As reported, Vinson & Elkins was called upon to vet an audit by Andersen, which proposed to certify as accurate the financial statements of Enron despite a convoluted series of transactions that kept off the books hundreds of millions in losses and overstated net worth by other millions, apparently in accord with equally convoluted regulations. The Vinson & Elkins response, as reported, was that the audit was technically correct.
The problem seems to be that this did not violate the law or any canon of ethics. How long can the bar continue to be a self-governing profession free of strict and detailed government regulation without the type of self restraint that Linowitz described was present in an earlier day?
What accounts for the deterioration from the Linowitz version of professionalism? In his book, he attributes it to a long-standing failure of law schools to emphasize professionalism in the curriculum while leaving it to new lawyers' mentors as they enter the practice. This responsibility, however, is transposed upon an emphasis in law as a business, which inhibits this mentoring.
What time is there for mentoring when new associates have billing goals of 2000 hours? Where a partner's book of business dictates her draw, what message does this send to the new lawyer about saying "No" to a valued client?
Add to this the unwitting contribution of the leading law schools. During the period that today's leading lawyers were in law school, two diametrically opposed schools of legal theory dueled for supremacy. The neomarxist proponents of critical legal studies passionately argued that legal principle was so indeterminate that there was no law but rather doctrine manipulated to oppress the downtrodden. Their opponents, the law and economics school, argued with equal passion held that law should be determined by the goals of a free market, that self interest is the controlling engine. Statutes, regulations and precedent were therefore something to manipulate toward the goal of "greed is good." From my experience as a law teacher, very few students completely adopted either theory, but it was far too easy for a particular student to superficially believe parts of each.
The situation, however, is not hopeless. California is fortunate in the number of lawyers of the Linowitz school and the number of firms who mentor their new lawyers in professionalism. The problem lies in lawyers and firms who do not teach professionalism and in a public perception that they are the rule instead of the exception. Therein lies the risk of strict nonlawyer regulation of the practice of law and loss of the attorney-client privilege, founded as it is on encouraging disclosure, so that lawyers may tell the client to do what is right. And that problem can be addressed in the law schools with the encouragement of alumni.
Law professors are by their nature specialists and good at what they do. But most are theorists with little or no exposure to the practice of law. The leading law schools view themselves as participants in great research universities rather than as professional schools. Legal ethics is left to a single short course dominated by preparation for the multistate ethics exam. The canons of ethics are treated as the sum and substance of the practice with no regard for professionalism in the broader sense, which treats the canons as merely specific instances of a broader duty to the public of a profession granted special privilege as officers of the court.
While law professors control law school curriculum and are passionately jealous of academic freedom, in the end they are paid out of funds supplied by contributions and grants. It's not too much of them to ask that attention to professionalism be injected into all aspects of law school teaching, to teach students that they are entering a special profession imbued with the public interest, not a trade in which the billable hour is the product. Grants from alumni or other groups earmarked for programs in professionalism could work wonders.
At the same time, the mentoring programs of large firms, small firms and sole practitioners can be publicized and praised by the organized bar and in the press. Continuing education can include both attention to the history of the profession, a lawyer's duty to occasionally decline a client matter and the importance of mentoring new lawyers. The Linowitz book could make a great, possibly mandatory, subject of a course.
There is a real risk to the profession if the teaching of Linowitz is ignored, but it can be alleviated if there is a will to do so.
Robert S. Thompson, retired justice of the Court of Appeal, is the Legion Lex Professor of Law Emeritus at University of Southern California Law School.
By Robert S. Thompson
In his 1994 book "The Betrayed Profession: Lawyering at the End of the Twentieth Century," Sol M. Linowitz virtually predicted the alleged role of nationally regarded Vinson & Elkins in the Enron fiasco. Linowitz describes a time a half-century ago when leading lawyers were considered to be part of an elite group because of their adherence to a code of professional conduct that looked beyond codified canons of ethics to their spirit and understood the moral imperative imposed upon lawyers because of their quasi-public function. Lawyers during this time are described as telling even the most valued client, "Yes, what you want is legally correct, but it is wrong, and if you pursue it I won't represent you."
Contrast the Enron disaster. As reported, Vinson & Elkins was called upon to vet an audit by Andersen, which proposed to certify as accurate the financial statements of Enron despite a convoluted series of transactions that kept off the books hundreds of millions in losses and overstated net worth by other millions, apparently in accord with equally convoluted regulations. The Vinson & Elkins response, as reported, was that the audit was technically correct.
The problem seems to be that this did not violate the law or any canon of ethics. How long can the bar continue to be a self-governing profession free of strict and detailed government regulation without the type of self restraint that Linowitz described was present in an earlier day?
What accounts for the deterioration from the Linowitz version of professionalism? In his book, he attributes it to a long-standing failure of law schools to emphasize professionalism in the curriculum while leaving it to new lawyers' mentors as they enter the practice. This responsibility, however, is transposed upon an emphasis in law as a business, which inhibits this mentoring.
What time is there for mentoring when new associates have billing goals of 2000 hours? Where a partner's book of business dictates her draw, what message does this send to the new lawyer about saying "No" to a valued client?
Add to this the unwitting contribution of the leading law schools. During the period that today's leading lawyers were in law school, two diametrically opposed schools of legal theory dueled for supremacy. The neomarxist proponents of critical legal studies passionately argued that legal principle was so indeterminate that there was no law but rather doctrine manipulated to oppress the downtrodden. Their opponents, the law and economics school, argued with equal passion held that law should be determined by the goals of a free market, that self interest is the controlling engine. Statutes, regulations and precedent were therefore something to manipulate toward the goal of "greed is good." From my experience as a law teacher, very few students completely adopted either theory, but it was far too easy for a particular student to superficially believe parts of each.
The situation, however, is not hopeless. California is fortunate in the number of lawyers of the Linowitz school and the number of firms who mentor their new lawyers in professionalism. The problem lies in lawyers and firms who do not teach professionalism and in a public perception that they are the rule instead of the exception. Therein lies the risk of strict nonlawyer regulation of the practice of law and loss of the attorney-client privilege, founded as it is on encouraging disclosure, so that lawyers may tell the client to do what is right. And that problem can be addressed in the law schools with the encouragement of alumni.
Law professors are by their nature specialists and good at what they do. But most are theorists with little or no exposure to the practice of law. The leading law schools view themselves as participants in great research universities rather than as professional schools. Legal ethics is left to a single short course dominated by preparation for the multistate ethics exam. The canons of ethics are treated as the sum and substance of the practice with no regard for professionalism in the broader sense, which treats the canons as merely specific instances of a broader duty to the public of a profession granted special privilege as officers of the court.
While law professors control law school curriculum and are passionately jealous of academic freedom, in the end they are paid out of funds supplied by contributions and grants. It's not too much of them to ask that attention to professionalism be injected into all aspects of law school teaching, to teach students that they are entering a special profession imbued with the public interest, not a trade in which the billable hour is the product. Grants from alumni or other groups earmarked for programs in professionalism could work wonders.
At the same time, the mentoring programs of large firms, small firms and sole practitioners can be publicized and praised by the organized bar and in the press. Continuing education can include both attention to the history of the profession, a lawyer's duty to occasionally decline a client matter and the importance of mentoring new lawyers. The Linowitz book could make a great, possibly mandatory, subject of a course.
There is a real risk to the profession if the teaching of Linowitz is ignored, but it can be alleviated if there is a will to do so.
Robert S. Thompson, retired justice of the Court of Appeal, is the Legion Lex Professor of Law Emeritus at University of Southern California Law School.
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