January – the traditional time for resolutions and resetting intentions. While we may fail to achieve them, we know the resolutions worth making – exercise more, eat better, spend less, be kinder: in some smaller or greater way, be a better person. What our resolutions are not is a commitment not to do something bad. We don’t say, “this year I’m not going to cheat on my spouse, or assault someone, or steal from my employer.” Our resolutions are positive and aspirational, not negative and constrained. So this is my January question: what would it look like to think about legal ethics in the same way? To think about lawyer’s ethical duties not in terms of the constraints – the things that constitute legal or ethical violations of the lawyer’s duties – but in terms of the resolutions and intentions a lawyer might set for herself.
There are two challenges to thinking about legal ethics in this way. The first is that legal ethicists (including me) tend to focus on the limits on lawyer conduct, on the things that lawyers ought not to do when representing clients. Conflicts of interest, confidentiality, negligence, restrictions on advocacy – all of these topics tend to be concerned significantly (although not exclusively) with what lawyers ought not to do, not what they ought to do. The second is that it’s not self-evident that there is any reason to think about being a good lawyer differently from thinking about being a good person. Perhaps the New Year’s resolutions of the lawyer striving to be ethical ought to be the same as the resolutions he has for his life in general – to be, e.g., kind, generous, healthy and sensible.
But I think these challenges are worth overcoming. Because thinking about ethics only negatively blunts the conversation; it gives us nothing to aspire to and unduly narrows our vision about what it means to be a good lawyer – which is, surely, more than simply not being a bad one. At the same time, thinking about ethics only in terms of ordinary morality, of the general idea of what it means to be a good person, is also insufficient. When we take on particular roles in our lives, whether as a mother, a student, a lawyer, a doctor, a friend, a legislator, there are particular virtues or moral goods that attach to that role, things that could make us good in occupying them. The qualities of a good mother are not the same as those of a good student; they aren’t unrelated – they are all virtues – but it’s nonetheless the case that some virtues are more important for a mother than they are for a student, and vice versa.
To illustrate the latter point, think about honesty. One could reasonably have a New Year’s resolution to be more honest and candid, to be more transparent with, say, one’s spouse or family. But as a lawyer, a New Year’s resolution to be more honest and candid would be problematic absent some complexity of articulation. Lawyers do have ethical duties not to misrepresent or mislead the court, their client or others, but being an advocate requires eschewing one’s own opinions or beliefs to advance a client’s cause – i.e., a certain type of honesty. Daniel Markovits has, for example, argued that being an advocate in an adversary system necessarily involves lying, insofar as lying means “asserting a proposition that one privately (and correctly) disbelieves” (A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton University Press, 2010) p. 35). And Monroe Freedman famously argued that loyalty and maintenance of confidentiality override duties of candour and honesty to the court (Monroe Freedman Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions (1965) 64 Mich. L. Rev. 1469 at 1469). I don’t mean to suggest that honesty and candour ought to have no place in a lawyer’s conduct, or could play no part in a lawyer’s ethical ambitions, but what that means for a lawyer is different from what it means for someone without the social role and responsibility to be an advocate for the goals and legal interests of others.
So what then would be suitable New Year’s resolutions for a lawyer? What positive but role-appropriate ethical ambitions could a lawyer adopt for 2016? I think quite a lot of things. A virtue of thinking about virtues is that doing so can be more open-ended and wide-ranging than thinking about rules and regulations; restrictions on lawyer behaviour are necessarily more precise and constrained than thoughts about what it means to be an excellent – a virtuous – lawyer. I look forward to hearing other suggestions in the comments, but here’s my own list of some ethical intentions a lawyer could set for herself:
Be loyal to your clients, and make furtherance of their interests paramount. There obviously are limits to the pursuit of a client’s interests, but my point here is that the limits shouldn’t dull awareness of the fundamental role that the virtue of loyalty plays in what lawyers do.
Keep your client’s secrets: really keep them. This needs no explanation, but I think we do sometimes slip into thinking about the negative parts of this (what would be a violation of privilege) rather than focusing on the virtue of confidence-keeping.
Believe in the rule of law. Being a lawyer can create a certain degree of cynicism about the law. Stupid judges, badly written statutes, the effect of inequalities in resources and power, and other frailties of the legal system in practice make it hard to maintain belief in the normative importance of the rule of law. But I think that belief is important for maintaining the meaningfulness of one’s work, and doing that work well. And for all its flaws in practice, there are lots of good reasons to believe in the rule of law – certainly in comparison to its alternatives, rule by force or fiat. If law in practice isn’t what it ought to be, then the goal should be to make it better, not to become hardened and cynical towards it.
Be conscientious. Conscientiousness is an old-fashioned virtue, but also I think an under-appreciated one. A lawyer who does what she has undertaken to do in a timely, efficient and effective manner will – all other things being equal – be a good lawyer.
Be empathetic. With one’s clients, but also with other lawyers, the court and the people one deals with. Empathy increases patience and blunts anger; it helps keep one attentive to the difference between effective advocacy and being a jerk. It will sometimes be necessary to hurt others in the course of one’s practice, or to make their lives less pleasant or more difficult. But empathy helps ensure that one does that only where necessary and not more than necessary.
Be wise. As they say in Spinal Tap, “it’s such a fine line between clever and stupid.” But wisdom – combing knowledge, judgment and experience to decide what to do – is likely to help a lawyer make good decisions for herself and to give good counsel to clients.
Care (OK, what I really thought was – “give a shit”). Care about being a good lawyer, about doing a good job, about being the best you can be. Every lawyer is going to have things that he is better and worse at. No lawyer is perfect. But if you are invested in the work you do, you’ll be more likely to do it to the best of your abilities, whatever those happen to be.