Page 38 - University of Baltimore Law - Fall 2019

inclosing What Does it
Mean to be an
Ethical Lawyer?
I’ve taught professional responsibility for over 20 years at UB Law, and am currently working as a co-author on
a new edition of one of the most widely used texts on
the subject in American law
schools.
There is great opportunity and
great responsibility in undertaking this work.
As I’ve taught the course and worked on the book, I’ve learned
that this particular course has distinct challenges. Compared to, say, contracts, torts or civil procedure, the content of professional responsibility is not defined by neat boundaries. After all, what does it mean to be an ethical lawyer? Or, to quote the title of the book, what exactly are “ethical problems in the practice of law”?
Some of the answers to that question are easy. Engaging in criminality is unethical. The requirement to teach professional responsibility itself arose in the aftermath of Watergate, where numerous lawyers, including the attorney general of the United States, served time in prison, and the president himself was disbarred.
Sadly, in our time, public wrongdoing by lawyers is on display, and often has attracted intense public scrutiny. The case of Michael Cohen, as of this writing serving three years in prison, is perhaps the most obvious example. And the lesson for students is not so much to simply avoid crimes like Cohen or others have been convicted of — I hope that’s obvious enough — but to ensure that students recognize that loyalty to clients can run amok, or a lawyer’s pecuniary
interest might distort what it means to be an ethical lawyer.
There are other topics that
are simply a foundation of the modern practice of law. While perhaps obvious, these can be quite complicated. The book devotes almost 100 pages to confidentiality and the attorney-client privilege, and over 250 to conflicts of interest. New lawyers need to understand that it is essential to have mechanisms in place to avoid problems in such areas, and to learn what steps can or must be taken when problems do arise.
Some issues, perhaps, are not quite so obvious. The book spends time on the inability of huge numbers of low-income litigants to retain lawyers and a criminal justice
system that overwhelms prosecutors and public defenders. Sometimes there are specific ethical rules at
play. For example, some public defender’s offices have refused to take additional cases because they cannot competently represent clients given their caseloads.
There is a specific ethical rule implicated here — competence is
the very first rule in the Rules of Professional Conduct — but these issues are really about what an adversary system means without lawyers or with overburdened lawyers, and what the profession can or should do about this. This, to me, is a core ethical issue confronting the profession.
And, finally, a fundamental part of the book — in my view as important as any other — is to encourage students to reflect on their own conceptions of what it means to be
a lawyer. The rules offer plenty of opportunities for this. For example,
a lawyer “may” disclose information “to prevent death or substantial bodily harm.” Would you disclose confidential client information to preserve a life even if such disclosure would not be in your client’s interest?
You might find it revolting to value
a professional obligation as more important than preserving a life, or you might be appalled at the prospect of violating a lawyer’s sacred duty
to represent the interests of a client. Each view might be generated by deeply held values, but as far as the rules are concerned, each choice is, in the professional sense, “ethical.” It’s for the lawyer to decide.
So what does it mean to be an ethical lawyer? The answer runs
the gamut from not being Michael Cohen, to mastering bodies of arcane rules, to enhancing the quality of
the administration of justice, and
to reflecting on what it means to be both an ethical lawyer and an ethical person. The new edition of the book will be its fifth. My co-authors and
I will keep thinking about how to answer that question for the sixth edition, and, I suspect, for the seventh and beyond.
Robert Rubinson is Professor of Law and co-director of the Mediation
Clinic for Families at the University
of Baltimore School of Law. He is a co-author of the fifth edition of Ethical Problems in the Practice of Law, to be published in 2019.
| 36 | Baltimore Law