The Split Is Not As Severe As It Appears

The stereotype of lawyers as dishonest, money-obsessed “conscientious schizoids”

Ethical and Procedural Rules undermine the stereotype

Lawyers with a conviction for challenging flaws in the legal system and ensuring the fairness of punishment undermine the stereotype

• I'm not sure why the most productive response to Carl Wylie's aria, from your point of view, is to treat it as either a "stereotype" or a general law that can be disproven if there are exceptions. Nor do I think that what Wylie was saying is that lawyers have no ethical limitations imposed externally or by internal discipline. Indeed almost every lawyer has limits, and some of those limits reside in rules whose breach has disciplinary consequences. (Though I must say that treating the Federal Rules of Civil Procedure as a source of ethical controls strikes me as quaint, to say the least.) Wylie seems to me to be expressing another truth, that the lawyer's aims are chosen by the client, and that even the most punctilious practitioner who remains always within the rules will wind up hiding from herself or himself the real world effects of the achievement of the clients' aims, because at least some of the time the fruition of those aims will have horrible consequences. The lawyer therefore, like the soldier, be he never so honorable, does things he cannot afford to recognize, and divides himself internally in consequence.

• Objections can be made, and exceptions found, without any question. And finding exceptions and making objections are therefore fair responses. But I think they miss the point. Unless their are only exceptions, and one or more objections cast the basic proposition in a completely different light, what Wylie says is something we need to take into account for ourselves.

• My practice is unusual, because it coincides closely with my overall sense of human good. My clients are unusual because they are mostly committed to the same vision of the global human good as I am, and they are willing to make great material sacrifices in order to help achieve it. Because clients do not pay me, I am able to choose my clients on the basis of our shared social commitments. And even in such a practice, I recognize the hovering truth of Wylie's point, which for me has nothing to do with whether we practice law ethically, which with every sinew and nerve we try to do.

The stereotype of lawyers as dishonest, money-obsessed “conscientious schizoids”

In Something Split, Carl Wylie suggests that lawyers are “conscientious schizoids.” He declares, “What we do is determined by who pays us.” In fact, as a lawyer one must be capable of deep moral compromise. “We all know there are times when you’re working on deal that, if you were to think it through, you’d realize that it was going to ruin the lives of thousands of people and their families. We all do it – in one size, shape, form, or other.” In the process, lawyers subconsciously subordinate their real feelings in the interest of money, success and power.

Wylie’s observation is supported by the image of the stereotypical “sleazy”, dishonest and money-obsessed lawyer. For example, during my conversation with a taxi driver last fall, I acknowledged that I attended Columbia Law School and his response was, “All lawyers are crooks! Don’t become one of them.” Additionally, in Something Split, Shana Urquart confesses, “Sometimes I imagine it. All these pools of money floating around out there – wherever ‘there’ is. All of us trying to attach ourselves to some part of them whatever way – by ourselves, with others – we can.”

Ethical and Procedural Rules undermine the stereotype

However, these statements may be too simplistic a characterization of lawyers. Such ethical and procedural rules as the Model Code of Professional Responsibility and the Federal Rules of Civil Procedure are designed to ensure that lawyers’ actions are not illegal or beyond the moral standards that maintain the integrity of the profession. If lawyers are judged to have violated such rules, their damaged reputation, and in some cases, disbarment, provide a strong incentive to not do anything to achieve their clients goals.

Rules governing the discovery process limit the conduct of lawyers. While working as a litigation paralegal, my firm represented a corporate client charged by the government with fraud. I reviewed business records and internal correspondence for documents that were responsive to the government’s production requests. In addition to documents relevant to the government’s allegations, I found others that revealed fraudulent activity beyond their scope. Consequently, the partners on the case explained to the client that they were obligated to produce to the government the evidence of fraud it had alleged in addition to those it had not alleged. Withholding evidence that inculpated the client would have benefited them by making it less likely that the government could prove its allegations. However, my partners explained that doing so would violate legal ethics and the rules of discovery.

Admittedly, I have witnessed attorneys act in bad faith without violating the letter of ethical or procedural rules. I once assisted a sixth year, female senior associate in taking the deposition of the chief financial officer of our adversary. Based on a prior arrangement, our adversary agreed to produce at the deposition a small cache of documents that were responsive to one of our production requests. To our surprise they produced five boxes of documents they claimed to broadly comply with our request. Also, during the deposition, counsel for the CFO, a partner with more than twenty-five years of experience, constantly interrupted our associate with lectures on the supposed naïveté and redundancy of her questioning. Our adversary’s bad faith conduct is arguably consistent with my taxi driver’s image of the “crooked” lawyer doing anything to win the case for his client. Nevertheless, our partner on the case wrote a letter to the presiding judge complaining of our adversary’s actions. The judge agreed that their actions were in bad faith and sanctioned them by ordering that they produce a document log indicating the responsive documents and denying their request to depose our clients for an additional day. Although the stereotype of the “sleazy” lawyer has some credence, ethical and procedural rules limit to some extent how they pursue their pecuniary interests.

Lawyers with a conviction for challenging flaws in the legal system and ensuring the fairness of punishment undermine the stereotype

In Robinson’s Metamorphosis, Robinson, the criminal lawyer, demonstrates that lawyers do not necessarily have to make moral compromises in their practice. As a rule he shies away from clients with enough money to put him on a retainer. He “[doesn’t] like being beholden to anyone” and he “live[s] perfectly fine within [his] limits.” He views the criminal law as “civilization’s pathology.” It is too quick to impose severe punishment on criminals without considering that the confluence of poverty, criminal predisposition and popular culture’s glorification of violence makes some criminals less “bad” than others. Even if the people he represents have harmed others, he does not necessarily believe everyone who has committed a criminal offense is inherently bad. He concurs with the spirit of the observation of a fellow lawyer that, “Some of the kindest people I’ve known are rapist, and some of the most despicable animals on the face of the earth are rapists.” Representing accused criminals is not necessarily equivalent to abetting society’s most abhorrent citizens.

Even so, Wylie may argue that lawyers like Robinson subordinate their morality in the interest of having the power and status of a lawyer. The legal system is flawed and as a criminal lawyer, he exercises his power to reveal its shortcomings by securing lower sentences for his clients. However, Robinson’s selectivity in the types of cases he litigates reveals no gratuitous exercise of power. He chooses to contribute his legal talents primarily to cases in which the legal system undervalues the mitigating socio-economic factors that should determine the extent of punishment the offenders deserve. He is not motivated by maximizing pecuniary gain or blindly satisfying his parents desires that he practice law. He secures the rights to a fair trial that the fourth, fifth, sixth and seventh amendments grant to everyone.

The characterization of corporate and criminal lawyers as dishonest, money-obsessed “conscientious schizoids” has some elements of truth. However, the partners at my old firm demonstrate that the profession’s ethical and procedural rules limit bad faith tactics in ways laymen rarely appreciate. Moreover, the characterization undervalues the efforts of lawyers who work to ensure that the legal system does not punish people disproportionately in relation to their culpability.

-- RicardoWoolery - 26 May 2009