Advance Sheet. It's Not Complicated: Plain Speaking About Professional Ethics

• Author: Robert E. Shapiro
• Pages: 58-61

Advance Sheet

Published in Litigation, Volume 47, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 58

ROBERT E. SHAPIRO

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP,

Chicago.

Like jumbo shrimp or an objective opinion,

the term “lawyers’ ethics” has frequently

been treated as some kind of risible oxymo-

ron. Where the general public is concerned,

it is not particularly difficult to see why. For

some lawyerly activity—indeed, the prin-

cipal part for a litigator—the talent often

inheres in making the apparently weaker

argument the stronger, prevailing in favor

of some seemingly less than completely de-

serving party or position over one perhaps

more apparently entitled. This is activity the

public can be forgiven for thinking question-

able at best. It raises suspicions about hon-

esty and integrity, not to mention justice.

How did this person win—an accused walk,

say, or a undeserving plaintiff prevail—if not

by fraud or other wrongdoing? How do we

know the result is one of genuine fairness,

and not procured by skillful manipulation,

a lawyer’s dark arts at work in the face of all

that is right and true?

To persuade casual observers of a

judgment’s legitimacy, regardless of

appearances, one might need to explain

the larger context of our system of jus-

tice. This requires more than merely not-

ing that everyone is entitled to a proper

defense, a rather weak reed to rely on

when apparent evil is in play. To improve

the reputation of lawyers, or at least get

them off the hook, there would have to be

a broader conversation about how the law-

yer’s art of persuasion fits into the adver-

sary system. This includes how our courts

set out to find the truth through a clash

of viewpoints within the crucible of the

law court, and how a lawyer’s skills op-

erate within the context of concepts like

the presumption of innocence, burdens of

proof, and rules of evidence to keep the

process not just from running off the rails

but, for the most part, in line with achiev-

ing a fair result.

That conversation was always beyond

what was achievable on a mass basis and

definitely not doable in today’s Twitter-

induced information coma. Adding to

the problem is that lawyers these days

disproportionately occupy certain very

public roles in our society, often, as law-

yers, becoming celebrities all their own for

little more than courtroom success. When

high-profile lawyers get into trouble, or

cause it, they cast the profession in a nega-

tive light in a very public way. It’s an easy

matter to blame it on their being lawyers.

Is there any truth to the charge? Is there

some reason to believe that lawyers, too,

have lost the sense of what they are doing?

Have they come to see themselves as the

public often does, as skilled manipulators

or unthinking devotees of the people or

causes they represent? Do they, as a group,

care little for the truth and use rhetoric to

achieve good results, however question-

able as a matter of fairness, celebrating

their achievements above their commit-

ment to justice?

Heaven forfend! It would be a sad day

if lawyers came to understand themselves

as the public does. But where and how do

lawyers learn otherwise? What guidance

do lawyers get these days in professional

ethics, to save themselves from chuckling

too over the possibility that it’s a contra-

diction in terms? Legal education and the

actual practice of law have hardly distin-

guished themselves in this respect. The

former seldom includes rigorous analy-

sis and careful study of ethical matters,

professional responsibility courses being

the poor stepchild of the law school cur-

riculum. Prior education in morals having

been assumed, a law student’s degree pro-

gram includes only one or two classes on

lawyer ethics, where law schools believe

themselves acquitted of their responsi-

bilities to the profession by challenging

students with a series of vignettes, which

may or may not reflect reality, while ignor-

ing their relationship to the larger whole

presented by the study and practice of the

law generally.

Nor do lawyers get much training in

these broader principles in their practices,

which seem to leave to the chance of men-

tor or circumstance any guidance in what’s

IT’S NOT COMPLICATED:

PLAIN SPEAKING ABOUT

PROFESSIONAL ETHICS