So Young, So Cynical
posted by Michelle Harner
As I mentioned in a previous post, I teach (and really enjoy teaching) Legal Profession. In my prior post, I noted my sense that students resist ethics courses because they view themselves as moral, ethical people who will be moral, ethical lawyers. That trend has continued this semester, but I am also hearing more cynicism about the profession than in the past.
Now, it may be that I am teaching 1Ls this semester, as opposed to 3Ls who simply want to graduate and do not want to stir the pot. (And I have to say that I have a very thoughtful and engaged group of 1Ls.) It may be that law students are questioning their decision to enter the profession in different ways and on different levels than in the past because of the current environment. Indeed, given the amount of money these students invest in their legal education, they must cringe when they read the newspapers—or more likely the Internet—these days. (For recent stories regarding downsizing in the profession, see here, here and here.) Regardless of the reason, the sentiment is striking. I should note, however, that I am not surprised by it given the generally negative public perception of lawyers.
So what type of cynicism am I hearing? We recently were discussing what constitutes lawyer misconduct, a lawyer’s obligation to report the misconduct of colleagues and a lawyer’s obligation to disclose her own misconduct to the client. That last duty always gets them, and we typically discuss in detail the origins of this duty (see here, here and here) and the circumstances that might give rise to the duty basically to tell your client that you made a mistake. In several discussions with my students both in- and outside class, the common questions have been along the lines of: “Well Prof. Harner, this all sounds great in theory, but who actually reports misconduct in the real world? And why would you ever report your own misconduct?” These are very honest and sobering questions.
I do my best to instill in my students the importance of the self-reporting nature of the profession and the value (both personal and professional) to being an ethical, honest lawyer. We discuss the trust and integrity that underscore the lawyer-client relationship and what happens to legal process when that trust is breached. And I think they get all of that. But I also think they are sensitive to life in the real world, and the pressures they will be facing—assuming they can actually get jobs—as associates subject in many respects to the whims and behaviors of more senior lawyers and clients. As one of my students told me in discussing ABC’s new series, The Deep End (see also here), “You know Prof. Harner, the associates always find a happy resolution to ethical dilemmas on television, but I doubt it is really that easy in practice; being ethical and calling a colleague on her misconduct could end your career.”
I think my students are raising valid concerns; these certainly are not new concerns but perhaps they have renewed importance as students are more and more concerned about getting and then keeping jobs. I find that shock therapy helps drive the point home for some students, so I give them many examples of lawyers being disbarred and note the junior associate who now faces sanctions and discipline in connection with the Qualcomm discovery litigation (see here and here). And I hope that when they face that hard decision in practice, they will make the right one.
February 3, 2010 at 5:50 pm
Tags: Current Events, Ethics
Posted in: Uncategorized
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Responses (8)
floria - February 3, 2010 at 6:01 pm
thank you for share your experiences,
become a teacher is my dream.
mbt
emu boots
A.J. Sutter - February 5, 2010 at 12:36 am
Maybe I’m mixing apples and oranges in a way your post didn’t intend, but how does the “self-reporting” duty play out in the context of the Qualcomm litigation situation — and particularly the issue of “unprivileged knowledge”? E.g., suppose an associate discovers the unproduced emails when examining one of the client’s computers, and tells a Partner A; the partner makes the call not to produce the emails, despite the discovery request (let’s ignore for now the affirmative misrepresentations made in court). Suppose further the client also would prefer not to admit its concealment to the court. Does the associate have a duty to report the partner’s breach of ethical duty?
(A) Does any privilege attach because the associate learns of the existence of the unproduced emails from the client? Or is that privilege negatived because of the outstanding discovery request? (You can see from this naive question that I’m not a litigator.) (B) Partner A’s decision to conceal is not something learned of from the client. Is it therefore unprivileged? Or, if some privilege does attach in the question (A) context, does that privilege extend to the partner’s decision (since to disclose the partner’s decision would be also to disclose the client’s concealment)?
If the client’s concealment can’t be disclosed because of some breach of privilege, it would seem to me the appropriate thing to do would be to resign from representation. In my practical experience, the best way would be for the associate to approach other partners (if any) in the firm and let them know that their rear ends might soon be in a sling if they don’t do something about Partner A’s dubious call. Is that enough? What if there aren’t any other partners, or if they back up Partner A — what should the associate do?
Michelle Harner - February 5, 2010 at 5:42 am
A.J.:
I do not think you are mixing apples and oranges; I think your comment is exactly on point. Privilege is one concern, but the larger, related concern is a lawyer’s duty of confidentiality under Model Rule 1.6. This duty is very broad and includes basically anything the lawyer learns in the course of the representation, whether from the client or a third-party source. And the lawyer’s reporting duty is subject to the client’s consent if the disclosure implicates confidential information. So, both the senior lawyer and client could block reporting.
That being said, a lawyer also has a duty not to assist a client in fraud, illegality, etc. Whether that duty under Model Rule 1.2 trumps client confidentiality is subject to debate and is often referred to as a noisy withdrawal. That leaves the lawyer with the course of action you recommend, leaving the firm or withdrawing from the representation. Of course that often is not a desirable result from either the lawyer’s or the client’s perspective, and I think it is a particularly hard decision for subordinate lawyers. It also asks a lot of young, inexperienced lawyers who may not be comfortable concluding that a senior lawyer’s decision is unethical versus aggressive advocacy within the bounds of the law. For that dilemma, I encourage students to seek advisory opinions from their jurisdiction’s disciplinary counsel. Although not binding, it at least provides them with an objective perspective on the ethical issue.
Thanks for the comment.
Best regards, Michelle.
Michelle Harner - February 5, 2010 at 5:46 am
Floria: Thank you for your comment. Teaching is a wonderful and very rewarding experience. I highly recommend it. Best regards, Michelle.
A.J. Sutter - February 5, 2010 at 8:22 am
Thanks for your reply. When I was about a 5th-year corporate associate, I was once roped in to help a partner in my firm’s tax department do a deal. It turned out that not only did he have a personal interest, but he and a couple of controlling shareholders of a company were preparing to screw some minority holders, mostly employees. I contacted the heads of our conflicts and opinions committees, and together we crafted a bunch of ultra-conservative conflict disclosures and opinion disclaimers that we designed to be so unpalatable to the tax partner that the deal would die. Our plan worked; and the partner was booted out within 2 years, since this was neither the first nor last of his shenanigans.
It’s very important for associates to develop some rapport with partners other than the ones they work for, including in other departments of their firm. Partners don’t like to become subject to huge liabilities because of one jerk in the partnership. At least in a mid-sized to big firm, a network of trust will usually be an easier alternative for a young lawyer than consulting the jurisdiction’s disciplinary counsel, IMHO.
Michelle Harner - February 5, 2010 at 8:56 am
A.J.: I completely agree with you. Great advice for junior lawyers, and a relatively easy step that I think many lawyers fail to appreciate. Thanks also for sharing your story. So often law students think ethical dilemmas are a problem for the classroom but not a real issue in practice. Best regards, Michelle.
Civ Pro King - February 5, 2010 at 12:36 pm
Well, Bodoh must have taught you well.
Michelle Harner - February 5, 2010 at 1:56 pm
Judge Bodoh is indeed an amazing mentor; I am so fortunate to have clerked for him. Thanks for the comment!
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