President's Message
Ethics: The Third Rail of Bar Politics?
The marketplace is making it increasingly clear
that the public does not view lawyers as the exclusive source of legal
assistance. We must consider bold action in order to stay relevant in
the 21st century. While most of our problems have nothing to do with
ethics, changes to our Rules of Professional Conduct must be part of the
discussion.
by Gary L. Bakke
THE CLOCK IS TICKING. CLIENTS are increasingly turning to other
professions or to software and the Internet to provide the help that was
once the private domain of lawyers. The marketplace is making it
increasingly clear that the public does not view lawyers as the
exclusive source of legal assistance. Most of our problems have nothing
to do with ethics. However, I believe that there are a few, but
significant, issues that can be traced to our ethics rules. We must
consider bold action in order to stay relevant in the 21st century.
Changes to our Rules of Professional Conduct must be part of the
discussion.
The Rules of Professional Conduct did not come down from the Mount
with Moses. They are not, and never were intended to be, immutable laws
for all time. They have been modified over the years to adapt to changes
in society and in our profession. In fact, the current Rules of
Professional Conduct have been in force only 13 years1 and have been amended 11 times since
adoption. The current rules replaced the Code of Professional
Responsibility, and before that we had the Canons of Ethics. The ABA's
Ethics 2000 Commission currently is proposing hundreds of changes to the
Model Rules, which will be debated by the House of Delegates in
February. It is time for us in Wisconsin to carefully review our ethics
rules.
I do not propose that we relax the rules, nor do I believe in
deregulation of the profession. Lawyers and the public need a strong,
clear, enforceable set of ethical standards that assure the quality of
what we do. That does not, however, call for blind acceptance of the
status quo.
When the State Bar of Wisconsin was created, the Wisconsin Supreme
Court designated the purposes for which it should exist. These purposes
include the mandate:
"[t]o promote the innovation, development, and improvement of means
to deliver legal services to the people of Wisconsin; to the end that
the public responsibility of the legal profession may be more
effectively discharged."2
Thus, a periodic careful review and analysis of our ethical rules is
not only permitted but expected.
The Current State of Ethics Rules
Ethics rules have always been designed primarily for litigators. That
is not surprising considering that almost all lawyers (until recently)
found themselves in court regularly and that the rules are enacted by
the supreme court, which is at the top of the litigation food chain.
Today, many of us do not see the inside of a courtroom from one year
to the next. We have many other roles, including advisor,3 intermediary,4
and evaluator5 (evaluating a client's matter
for use by a third party). Lawyers may be primarily advocates, but the
Rules of Professional Conduct specifically delineate those additional
functions. Yet the current Rules don't fit the transactional and
advisory roles well. Dale Sorden, now retired from Quarles & Brady,
wrote to me saying, "The Rules of Professional Conduct are poorly suited
to the counseling and advisory functions that businesses and families
most often want from their lawyers," as he encouraged us to "pursue the
battle" of reviewing and revising our Rules.
Our Rules of Professional Conduct have several objectives. They are
designed primarily to assure adequate representation; to protect clients
and the public from overreaching or unscrupulous lawyers; and to protect
the legal system. The Rules, even though they describe only a minimum
level of acceptable conduct, are extensive in their mandates and
prohibitions.
The Rules mandate competence,6
diligence,7 adequate communication,8 and fair fees.9
They prohibit divulging confidences,10
proscribe conflicts of interest,11 and
require trust accounts.12
The Rules require that a lawyer advance only meritorious claims,13 expedite litigation,14 exhibit candor toward the tribunal,15 and treat the opposing party fairly.16 They prevent improper attempts to influence
a judge or juror and ex parte communications.17 They make it a violation to threaten
criminal prosecution to obtain an advantage in a civil matter18 and to make false statements regarding the
integrity or qualifications of a judge.19
Basic truthfulness in statements to others, fairness to unrepresented
parties, and respect for the rights of others is required.20 The Rules encourage pro bono work21 and regulate advertising, marketing, and
soliciting.22
In general, the Rules of Professional Conduct is an admirable
document, crafted and honed by leading scholars, jurists, and ethicists
to meet the needs and expectations of the public. It has served us well.
But we see some problems with lawyers' conduct that can be traced to the
ethics rules. Maybe we can do better. We can start by recognizing that
the current Rules can be changed to better fit the needs of litigators,
and to become more relevant to transactional lawyers.
A Closer Look at Our Ethics
Zealous advocacy. One of the public's charges
against lawyers relates to a concept that is not a direct part of the
current Rules. Zealous advocacy is primarily a carryover from the old
Code of Professional Responsibility,23
although there are references to zealousness in the preamble to the
current Rules and in the comments to the section requiring diligence.24
Lawyers, courts, and disciplinary committees interpreted the former
Code of Professional Responsibility, which directly mandated zealous
advocacy, to require an attorney to do everything, short of violating
the law, to achieve the client's goals. Thus, some thought that
attorneys were obligated to carry out even those client directives that
the attorney found harsh, ethically distasteful, or unnecessarily
harmful to opposing parties, counsel, or others, such as children in a
divorce action.25 It was in response to
this overzealous interpretation of the zealous advocacy requirement that
the current Rules of Professional Conduct eliminated the zealous
advocacy requirement. It is my observation that the distinction between
the old Code and the new Rules has been lost on a segment of the
profession.
I submit that the zealous advocacy idea is used to justify
aggressive, belligerent, hostile conduct that has caused more pain to
more litigants than any other factor. Boorish conduct, disrespect for
others, "Rambo" tactics, and similar conduct hurts us all. Conduct under
the umbrella of zealous advocacy is the primary reason that people fear
lawyers and will go to great lengths to avoid us. Our clients deserve
dedicated, energetic, creative, diligent, and competent representation
within the bounds of fairness to others and our responsibility to the
legal system.
Our former Code of Professional Responsibility, which included the
zealous advocacy requirement, also included an ethical consideration
that is not part of the current Rules. It provided that "The duty of a
lawyer to represent his or her client with zeal does not militate
against his or her concurrent obligation to treat with consideration all
persons involved in the legal process and to avoid the infliction of
needless harm."26 Our clients need advocacy
and problem solving skills but rarely benefit from an aggressive display
of zealousness.
Loyalty. Another problem in the public's perception
of us relates to our apparent inability to balance our duty of undivided
loyalty to the client with the other obligations of fairness to others
and support for the legal system.
The preamble to the current Rules recognizes that, "In the nature of
law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a
lawyer's responsibilities to clients, to the legal system, and to the
lawyer's own interest in remaining an upright person while earning a
satisfactory living." However, the Rules do little to help us balance
the conflicting duties.
The preamble notwithstanding, the duty of undivided loyalty
frequently takes precedence over other, sometimes conflicting, mandates.
When that happens, the duty of undivided loyalty to a client, when
coupled with the mandate for zealous advocacy, runs roughshod over other
equally valid and highly important ethical values. I have in mind the
rules that require that a lawyer not advance claims that are frivolous
or not meritorious,27 require that lawyers
expedite litigation,28 require candor
toward the tribunal,29 and mandate fairness
toward the opposing party.30 Similarly in
jeopardy are the rules requiring basic truthfulness in statements to
others, fairness to unrepresented parties, and respect for the rights of
others.31 I submit that we should not have
a single-minded duty of loyalty to our clients. Rather, that duty of
loyalty must be balanced with other duties to the system and to other
parties and to our own morals.
Professional independence. As our profession begins
to seriously consider multidisciplinary practice, unauthorized practice
of law, and multijurisdictional practice issues, two rules are in the
cross hairs for reconsideration: professional independence32 and unauthorized practice of law.33 Both are found in that part of the Rules
that regulates law firms and specifies the duties and responsibilities
of supervising and subordinate lawyers.
The requirement for professional independence prevents a lawyer from
sharing legal fees with a nonlawyer and prevents formation of a law
practice partnership or corporation with a nonlawyer. Professional
independence confers no direct benefit to the client; it only makes
sense if we conclude that other rules will be more difficult to enforce
if there is nonlawyer involvement in the decision making or financing of
a law office. This is the heart of the matter.
I do not propose that we relax the rules, nor do I believe in
deregulation of the profession. Lawyers and the public need a strong,
clear, enforceable set of ethical standards that assure the quality of
what we do. That does not, however, call for blind acceptance of the
status quo.
|
Is SCR 20:5.4, Professional Independence, essential to the viability
of the core mandates of the Rules? Can the Rules' client protection,
public protection, and legal system protection functions be attained and
enforced without professional independence? If we conclude that it is
impossible or impractical to enforce the other Rules without a
requirement of lawyer independence, then we should consider what
restrictions are necessary to assure the reasonable objectives of the
Rules.
Are we convinced that the ethical practice of a lawyer would come
under irresistible assault in a CPA or consulting firm? Have we
concluded that the thousands of lawyers currently employed by such firms
worldwide are less ethical than the rest of us? Are the ethical
pressures on such a lawyer greater than the ethical temptations faced by
a solo practitioner struggling to earn $35,000? What about the pressures
on young associates in large firms where billable hours and collections
are the yardstick of professional performance? I believe that the
ongoing quest for financial survival in many firms, large and small,
creates ethical pressures equally intense as those that would be created
by a for-profit nonlawyer enterprise.
What about the pressures on a senior partner who derives most of her
income from one very large client? Who controls the work of a government
lawyer? A nonlawyer supervisor? What about in-house corporate counsel?
Attorneys employed by insurance companies? All lawyers, regardless of
workplace structure, encounter ethical pressure every day as we struggle
to represent the interests of our clients and remain true to our values
as human beings. Our legal system is designed around the assumption that
as professionals we will put our ethical obligations above the
short-term gain to be reaped by an ethical violation. Living up to that
standard is an obligation that we expect lawyers to take in stride. Why
should we be suspect of an attorney who chooses to work for a CPA firm?
Do we believe that society would be better off if attorneys are required
to forfeit their law licenses if they wish to work in
nonlawyer-controlled businesses?
We must acknowledge that frequently our obligation to a client is at
odds with our financial self-interest. This is true for partners and
shareholders, for associates and employees, and for those in private,
corporate, or government practice. If we expect ourselves to put the
needs and interests of our clients ahead of our personal self-interest,
and we do, certainly we can design rules that will protect clients from
the pressures of nonlawyer owners and managers.
Another area of concern is the unauthorized practice of law rules,
which provide that a lawyer shall not practice law in a jurisdiction
unless licensed to do so and shall not assist a nonlawyer in the
unauthorized practice of law. We struggle to define the practice of law.
Other professions are more clearly defined in the statutes. We do not
have an accepted and enforceable definition, the current Wis. Stat.
section 757.30 notwithstanding, and without such a definition, attempts
to regulate the unauthorized practice are doomed.34
The ABA has a commission working on multijurisdictional practice
issues, which for transactional lawyers are closely related to
unauthorized practice issues. The current rules are clear for
litigators. Don't practice in a jurisdiction unless admitted to practice
in that state or associated with co-counsel who is. It is much less
clear whether transactional lawyers can participate in negotiations or
other noncourt activity in another jurisdiction.
Taking the First Step
In response to the unprecedented changes in our society, and
therefore our profession, the State Bar Board of Governors is studying
and debating an extremely ambitious resolution that involves changing
our ethics rules to more effectively serve the public. The resolution
has been called "gargantuan, earth shaking" by one board member.
The resolution calls for a bold review of fundamental issues facing
the profession, including multidisciplinary practice,
multijurisdictional practice, unauthorized practice of law, ancillary
businesses operated by lawyers, member education and technological
support, pro bono services, unbundling of legal services, alternative
billing methods, changes in law school education, changes to the rules
of civil procedure, the rules of evidence and scheduling procedures,
alternative dispute resolution, and legislative consideration of the
legal and transactional costs of new legislation to Wisconsin
citizens.
I predict that before formal action by the board, the resolution will
be broken into its component parts for deliberation and voting. However,
the fact that it was created as a unified resolution emphasizes the
importance of a coordinated consideration of the future of our
profession.
Back to the Basics
The ABA Commission on Multidisci-plinary Practice made a very strong
statement in favor of careful change. I have cited it before, and I do
so again to remind us all that we have a collective obligation to
effectively serve the public.
"The legal profession should adopt and maintain rules of professional
conduct that protect its core values, independence of professional
judgment, protection of confidential client information, and loyalty to
the client through avoidance of conflicts of interest, but should not
permit existing rules to unnecessarily inhibit the development of new
structures for the more effective delivery of services and better public
access to the legal system."35
Endnotes
1 Adopted by the Wisconsin
Supreme Court on June 10, 1987, effective Jan. 1, 1988.
2 SCR 10.02(2). Purposes. The
purposes of the association are to aid the courts in carrying on and
improving the administration of justice; to foster and maintain on the
part of those engaged in the practice of law high ideals of integrity,
learning, competence and public service and high standards of conduct;
to safeguard the proper professional interests of the members of the
bar; to encourage the formation and activities of local bar
associations; to conduct a program of continuing legal education; to
assist or support legal education programs at the preadmission level; to
provide a forum for the discussion of subjects pertaining to the
practice of law, the science of jurisprudence and law reform and the
relations of the bar to the public and to publish information relating
thereto; to carry on a continuing program of legal research in the
technical fields of substantive law, practice and procedure and make
reports and recommendations thereon within legally permissible limits;
to promote the innovation, development and improvement of means to
deliver legal services to the people of Wisconsin; to the end that the
public responsibility of the legal profession may be more effectively
discharged.
3 SCR
20:2.1.
4 SCR
20:2.2.
5 SCR
20:2.3.
6 SCR
20:1.1.
7 SCR
20:1.2.
8 SCR
20:1.3.
9 SCR
20:1.5.
10 SCR
20:1.6.
11 SCR
20:1.7, 1.8, 1.9, 1.10, 1.11,
and 1.12.
12 SCR
20:1.16.
13 SCR
20:3.1.
14 SCR
20:3.2.
15 SCR
20:3.3.
16 SCR
20:3.4.
17 SCR
20:3.5.
18 SCR
20:3.10.
19 SCR
20:8.2.
20 SCR
20:4.1, 4.3,
4.4.
21 SCR
20:6.1.
22 SCR
20:7.1, 7.2, 7.3, 7.4, 7.5.
23 Code of Professional
Responsibility, SCR
20.34, repealed effective Jan. 1, 1988.
24 Preamble. "[A]s
advocate, a lawyer zealously asserts the client's position under the
rules of the adversary system."
"[w]hen an opposing party is well represented, a lawyer can be a
zealous advocate on behalf of a client and at the same time assume that
justice is being done."
Comment to SCR 20:1.3 Diligence. "[A] lawyer should act with
commitment and dedication to the interests of the client and with zeal
in advocacy upon the client's behalf."
25 The American Academy of
Matrimonial Lawyers, a national organization of divorce lawyers, of
which I am a fellow, has determined that the current Code of
Professional Conduct is not appropriate for family law cases where the
litigants will have to continue to deal with each other about financial
or child care issues long after the case is concluded. It has adopted
standards of conduct for its members called Bounds of Advocacy. It can
be found at http://www.aaml.org/bounds.html.
26 Code of Professional
Responsibility, SCR
20.34(2)(g), repealed effective Jan. 1, 1988.
27 SCR
20:3.1.
28 SCR
20:3.2.
29 SCR
20:3.3.
30 SCR
20:3.4.
31 SCR
20:4.1, 4.3, 4.4.
32 SCR
20:5.4.
33 SCR
20:5.5.
34 The ABA Commission on
Multidisciplinary Practice did propose a definition that was rejected by
the House of Delegates:
"'Practice of Law' means the provision of professional legal advice
or services where there is a client relationship of trust or reliance.
One is presumed to be practicing law when engaging in any of the
following conduct on behalf of another:
"(a) Preparing any legal document, including any deeds, mortgages,
assignments, discharges, leases, trust instruments or any other
instruments intended to affect interests in real or personal property,
wills, codicils, instruments intended to affect the disposition of
property of decedents' estates, documents relating to business and
corporate transactions, other instruments intended to affect or secure
legal rights, and contracts except routine agreements incidental to a
regular course of business;
"(b) Preparing or expressing legal opinions;
"(c) Appearing or acting as an attorney in any tribunal;
"(d) Preparing any claims, demands or pleadings of any kind, or any
written documents containing legal argument or interpretation of law,
for filing in any court, administrative agency or other tribunal;
"(e) Providing advice or counsel as to how any of the activities
described in subparagraph (a) through (d) might be done, or whether they
were done, in accordance with applicable law;
"(f) Furnishing an attorney or attorneys, or other persons, to render
the services described in subparagraphs (a) through (e) above.
"This definition is based in great part on District of Columbia Rule
49, which the Reporter viewed as a useful model."
35 American Bar Association
Commission on Multidisciplinary Practice, Report to the House of
Delegates, June 8, 1999.
Wisconsin Lawyer
