Legal Ethics and a Civil Action
| Publication year | 1999 |
| Citation | Vol. 23 No. 01 |
I. Introduction and Background to
A student's performance in law school does not necessarily indicate whether the student will be a good lawyer. Nor will a student's enjoyment of law school portend that she will enjoy the practice of law. Being a lawyer is not simply being able to cogently analyze a set of facts. The practice of law does not ebb and flow with the regularity of law school semesters or quarters. You do not receive grades at regular intervals, nor does your work come in nicely discrete packets with foreseeable termination dates. Rather, you prove you can "be a lawyer" by diligently representing your clients year after year, often feeling fatigued and enduring acrimonious interactions with opposing counsel, yet still maintaining your ethical and moral compass.
As a litigator or trial lawyer, you usually cannot predict the slack periods when you can sit back and reflect on what you are doing, as you might between semesters while still in school. Even under the most strict judge, you cannot always predict when a trial will end (or even begin) or a case will settle. Even if you could, usually several other cases await your immediate attention once it does. Intense periods of trial preparation and trial can last for months; during many stretches you have to work most weekends just to keep on top of your cases. This preoccupation with your clients' matters is especially true when your efforts are focused on a single case, as illustrated in Jonathan Harr's
Harr's book dramatically describes how a case can consume a lawyer's life to the exclusion of all else. The book describes lawyers' pursuit and defense of a toxic tort case that arose out of events in the town of Woburn, Massachusetts. A statistically high number of children and adults, all of whom drank water from the town's wells, contracted leukemia. After determining that runoff from land owned by W.R. Grace and Co. and a subsidiary of Beatrice Foods may have polluted the wells, a Boston personal injury lawyer, Jan Schlictmann, together with a public interest organization, Trial Lawyers for Public Justice (TPLJ), filed suit on behalf of these Woburn residents (the Woburn plaintiffs) against Grace and Beatrice. The book recounts the problems the plaintiffs' lawyers confronted, not only in trying to prove their case, but also in trying to overcome the formidable defenses prepared by the principal lawyers for the defendants, William Cheeseman for Grace and Jerome Facher for Beatrice. Covering the case from the filing of the complaint to posttrial maneuvers over alleged discovery abuses, the book also devotes substantial space to the interactions among the lawyers and between the lawyers and the judge who presided over the case, United States District Judge Walter Skinner.
Lawyers identify with this book, perhaps because, after an opening section describing the families and their injuries, the narrative presents the pursuit of the case almost exclusively from the lawyers' perspective. The book is not episodic entertainment like "L.A. Law."
The book also depicts a world that can leave the reader with the impression that ethics took a holiday during the Woburn case, probably because it ends with the posttrial motions over the concealment of the Yankee Environmental Engineering Report(fn2) and Riley's destruction of evidence.(fn3) The reader is left with the feeling that had this information been available to plaintiffs' lawyer Schlictmann before or during the trial, the jury would have reached a substantially different verdict, or the case would have settled for substantially more money. While these two events are the most conspicuous, many other incidents in the book, both peripheral to and related directly to the Woburn case, are rich sources of material for educating students about legal ethics.(fn4) Yet despite the impression a reader may have that justice was subverted, the lawyers in
In writing this Article, however, my intent is neither to vindicate nor to rebuke the lawyers involved in the Woburn case. Instead, I want to show how
One law professor reports that the first time he taught Professional Responsibility he asked his students what they wanted to get out of the course. They stated three concerns: "First, they wanted to know what they needed to do to pass the professional responsibility bar exam. Second, they wanted to know what they needed to know to stay clear of trouble in practicing law. Third, they were concerned with their grades."(fn5) In teaching Professional Responsibility, I have had much the same experience. I address the second concern by exposing the students, through oral and written hypotheticals, to the kinds of ethical dilemmas they eventually will confront in their practices. According to student feedback, this approach not only has helped prepare them for practice, but also has helped allay their first concern.(fn6)
Part II contains a brief overview of the mechanisms for regulating lawyers' conduct, the various responsibilities and functions a lawyer holds within our legal system, and the lawyer's professional duties. After this brief overview, I discuss in depth several events in the book that illustrate the roles and duties a lawyer has, and what a lawyer should do in each event to fulfill her ethical obligations. Part III presents an event collateral to the Woburn case, Schlictmann's first trial, and raises issues of the lawyer's duty of competence and the fundamental division of authority and responsibility between lawyer and client in achieving the aims of the representation. Part IV focuses on the Rule 11 hearing where Schlictmann contested allegations of barratry. This part of the Article demonstrates the difference between the attorney-client privilege and the lawyer's duty of confidentiality, two fundamental ethical concepts many practicing lawyers confuse, and which can also serve as a springboard for a classroom discussion of the place morality holds in the legal profession. Moreover, it reminds students that common sense need not be left at the courthouse door.
Part V follows up on the theme of morals in the legal profession. It uses the false deposition testimony of Barbas to introduce the classic conflict between a lawyer's responsibilities as a representative of clients and as an officer of the legal system. It also familiarizes the student with how lawyers may say or do one thing, but intend something entirely different. Finally, Part VI discusses legal fees, a topic dear to the hearts of most lawyers and central to
The reader must remember that in some of these events, particularly the scenes that take place in the courtroom or between the lawyers, the book is generous with details that permit a discussion of the ethics within the context of the actual events.(fn8) In other instances, however, the book is spare about what actually occurred. Not surprisingly, this occurs most often when lawyer-client communications are involved.(fn9) In those situations, one can hypothesize about what may have happened and whether it comports with a lawyer's ethical duties.(fn10) Alternatively, the events can function as vehicles that can be used to segue into other related topics in ethics. Taken as a whole, they demonstrate that
II. Brief Overview of Professional Responsibility
To better understand the ethical issues that arise in
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