President's Perspective
Theory of Everything
by Gary L. Bakke
FOR DECADES PHYSICISTS HAVE been searching for a
Unified Theory or, as Stephen Hawking calls it, the Theory of
Everything. As we look to the future, the legal profession also needs a
unifying Theory of Everything. Our plate overflows with issues, the
answers to which will redefine our role. Without an overriding theory of
what it means to be a professional and what it means to be a lawyer, we
will not likely resolve the conflicting forces that push and pull us
toward incompatible views of our role.
The physicists seek a fundamental theory that underlies the physics
of the universe. Einstein's General Theory of Relativity appears to
explain gravity and the warping of space-time on the very large, cosmic
level. On the level of the very small, Quantum Mechanics Theory appears
to explain the action of subatomic particles (this is the origin of the
uncertainty principle).
For theoretical physicists, the conundrum is that the two theories
are incompatible. They don't agree. At the fringes, science is messy
stuff. Einstein died searching for the theory that would unify how the
universe works at both a macro and micro level. Stephen Hawking and many
of the world's most gifted physicists are still working on it.
Lawyers' Conundrum
Our conundrum is that the theory of lawyer as a professional and the
theory of lawyer as a businessperson don't agree either. How then can we
resolve our fundamental issues? Can we practice in organizations not
owned and controlled exclusively by lawyers? What are the jurisdictional
boundaries for the transactional lawyer? What is the unauthorized
practice of law? Can nonlawyers do what we do? What is the practice of
law? Who decides? Who enforces? Will the marketplace dictate the
answers? What is a lawyer? What is a professional?
Many of us have our own answers to these questions, but each
individual answer is dependent on our personal viewpoint and
perspective. Remember Newton's law of gravity? It was wrong. From
Newton's perspective here on earth, his theory did an excellent job of
approximating the rules of the universe as they work on earth.
Nonetheless, it was wrong. Like Newton, if we answer the questions
facing the legal profession from only our own perspective as lawyers, we
will be wrong, too. We need a unifying theory as a framework within
which to construct our future.
Our Theory of Everything must answer two fundamental questions: What
is a profession?, and What is the practice of law?
What is a Profession?
We all seem to tacitly agree that a profession is different than a
business. But why? How? I suggest this definition:
"Professionals are those who by law or tradition are required to
place the interests of their clients (or patients) and the public ahead
of their own economic or other self-interests."
This definition of a professional contrasts with that of a
businessperson who is free, and even encouraged, to put his or her own
interests first, within the bounds of the law. This is our way of
fueling the capitalist engine. We rely on the marketplace to sort out
the good from the bad in business.
What is the Practice of Law?
If we start with the truism that the practice of law is comprised of
those activities that are restricted to lawyers who are professionals
(that is, the legal profession), that does not get us very far, but it's
a start. We can then ask, from the perspective of the public interest
and our clients' protection, what activities should be performed only by
the legal profession.
What are Our Core Values?
A discussion of our core values may help focus our thinking.
Unfortunately, those with political motives have hijacked the concept of
core values. Back in the 1980s, the law and order political faction
hijacked the American flag to represent its own views. Miniature flags
suddenly appeared on the uniform of every police officer in the land.
Similarly, the anti-MDP forces recently have hijacked the term "core
values" and defined them in a way that militates against any change in
the status quo. An example of this hijacking can be found in the ABA's
anti-MDP Resolution 10-F, which defined our core values in terms of the
Rules of Professional Responsibility. I submit that the ABA's list
constitutes our core obligations, not our core values. Here's a look at
the core values as defined by the ABA.
1) The lawyer's duty of undivided loyalty to the
client.
What happened to our long-standing duty to justice, to third parties,
to the public, and to the legal system? Are we nothing more than
technicians advancing the narrow and short-term financial interests of
those clients who can afford our fees?
2) The lawyer's duty to competently exercise independent
legal judgment for the benefit of the client.
What about nonlegal judgment, good old common sense, wisdom, ethical
counseling, moral guidance?
3) The lawyer's duty to hold client confidences
inviolate.
Clearly, we have a duty to hold a client's information about past
conduct strictly confidential. This allows us to get all the facts and
to provide professional judgment in our counsel to the client. It is not
as clear that a client is entitled to confidential treatment of his or
her intended future conduct, especially when it involves potential fraud
or damage to another or to the legal system. Traditionally, the ABA has
insisted on absolute confidentiality. Many states, including Wisconsin,
have taken a more flexible approach that permits or requires disclosure
to prevent serious harm. (See SCR 20:1.6) This is still a hot topic at
the ABA level and is again being debated as part of the Ethics 2000
project.
4) The lawyer's duty to avoid conflicts of interest with the
client.
Yes, we do have this duty, but is it a core value? Is this what we
are about at the base level? Is this a foundation of our profession? I
think not. It is a duty that makes sense in litigation and that has
served our profession and our clients well. Many, including very
respected and thoughtful Wisconsin lawyers, have concluded that while
avoidance of conflicts is essential in the adversarial context of
litigation, it is unnecessary and even harmful in the client counseling
and transactional area. Certainly, the absolute rule increases cost in
many circumstances (husband and wife marital property agreements, for
instance) and contributes to the public perception that once lawyers get
involved, the entire transaction takes on a life of its own that is out
of the control of the individuals or businesses involved. I am not
advocating a change in the confidentiality rule, nor am I advocating
against such change. I simply point out that respected and thoughtful
lawyers differ on this issue, which makes it suspect as one of our core
values.
Even if we agree that the current confidentiality rule is necessary
and appropriate, it is still just an ethical rule, not a core value that
attracts the best and the brightest to a career in the law.
5) The lawyer's duty to help maintain a single profession of
law with responsibilities as a representative of clients, an officer of
the legal system, and a public citizen having special responsibility for
the quality of justice.
Why do we have a duty to maintain a single profession of law? Our
friends in Great Britain seem to do well with solicitors and barristers,
two very different professions. Is this a core value or a plea to
maintain the status quo? Again, I do not advocate for a separation of
trial lawyers and transactional lawyers, but I do bristle at the thought
that this is supposed to be one of my core values.
6) The lawyer's duty to promote access to
justice.
I can buy this one, but the devil is in the details. Does this carry
a duty of pro bono? If so, why do we resist mandatory pro bono or even
mandatory reporting of voluntary pro bono?
Duties and obligations do not make core values. Medical doctors
preserve the confidences of their patients. Is that one of the core
values of the medical profession? Christians and Jews observe the Ten
Commandments. Is "Thou shall not covet thy neighbor's house" one of our
core values? To define core values in terms of the rules we follow
demeans the term.
When we went from the Code of Professional Responsibility, which had
a significant aspirational component, to the current Rules of
Professional Conduct, which mandate only a minimum standard of conduct,
our ethical standards lost any claim to the moral high ground that could
form the basis of core values for the legal profession.
Is Consensus Achievable?
So what are our real core values? We have no consensus. In 1996,
several ABA sections and committees sponsored a symposium on Teaching
and Learning Professionalism. Participants included our own Erica
Moeser, director of the National Conference of Bar Examiners, and
Michael McCrystal, Marquette Law School professor. The published
proceedings, still available from the ABA, document a high-level and
principled inquiry into the nature of professionalism and what it really
means. There was no consensus. I believe that we are now much farther
from an agreed set of core values than we have ever been. In Lincoln's
time, there may have been agreement that good lawyers counseled moral
behavior by their clients, vigorously promoted dispute resolution, and
provided zealous advocacy only if litigation became inevitable.
Today, we have lawyers who argue that Rambo tactics are a
professional obligation, that zealous advocacy is our role regardless of
whether we are litigating, advising, or negotiating, and that a lawyer
is a hired gun, or at least a hired mouthpiece, for his or her client.
Some argue that mediation and other ADR methods are a menace because
they reduce the available court precedent for future cases. We fight not
only with nonlawyers, but within the professions to guard our turf. (It
has been held that an Illinois lawyer is engaging in the unauthorized
practice of law when advising a client about a California transaction.)
Some Wisconsin lawyers engage in name calling and pushing and shoving in
open court, and no one reports an ethical violation.
How many lawyers would now agree with the 1958 joint ABA and AALS
Professional Responsibility: Report of the Joint Conference,
which reported:
"The advocate plays his role well when zeal for his client's cause
promotes a wise and informed decision of the case. He plays his role
badly, and trespasses against the obligations of professional
responsibility, when his desire to win leads him to muddy the headwaters
of decision, when, instead of lending a needed perspective to the
controversy, he distorts and obscures its true nature."
I submit that many lawyers now believe that it is our right, or even
our obligation, to do exactly what was criticized in 1958.
The Joint Conference report also stated:
"The reasons that justify and even require partisan advocacy in the
trial of a cause do not grant any license to the lawyer to participate
as legal advisor in a line of conduct that is immoral, unfair, or of
doubtful legality."
I would hope that we would have greater support for this second quote
than for the first, but we all know that the vote would not be
unanimous. Unfortunately, every day some lawyer counsels a client that
illegal conduct of some specific type is unlikely to be caught and, even
if discovered, the consequences are minimal compared to the potential
gain from the suspect conduct.
If we as a profession have to formally decide on our core values and
the meaning of professionalism, some position may have a plurality of
our votes, but I am convinced that none will be endorsed by a majority.
Does this mean that we already have more than one profession?
If we quest for the Theory of Everything, a common agreement on
values and professionalism, what if we don't find it?
Wisconsin Lawyer
