Saturday, January 19, 2008

The More Things Stay The Same, Or At Least The Talk About It Does

Posted by Alan Childress

AALS panels decrying falling ethics, noting the under-representation of minorities as law students, wondering whether legal ethics can be taught, and suggesting the simple need for more disbarments.  The AALS Conference in New York City a few weeks ago?  No, some interesting AALS panels in L.A. in 1964, according to a Time story of the time, How to Improve the Legal Profession.  The only noticeable differences are the weather in the convention, references to the canons and not the model code, and the term used for minorities -- though as usual there is some talk about the issue but the blame is casually placed elsewhere [it's the law firms = it's USN&WR] and no solution is offered. Here it is:

The weather was balmy and bright in Los Angeles, but a fog of gloom sometimes seemed to invade the Association of American Law Schools convention held there last week. Amid the many speeches and panel discussions, two somber questions recurred several times: Is the legal profession in the U.S. getting only barely passing grades in professional ethics? And is it flunking in social responsibilities?

Truth or Spectacle. One panel worried over the conduct of New York City lawyers, as revealed in a study by Lawyer-Sociologist Jerome E. Carlin. According to Carlin's findings, which are based on hundreds of interviews, more than 20% of the city's lawyers persistently breach canons of professional ethics. Most of the violators, Carlin reported, are lawyers practicing on their own or as members of small firms; in large law firms, standards of conduct run higher.

In another panel, University of Texas Law Professor Jerre S. Williams raised a point that has long troubled many attorneys: the dubious ethics of the all's-fair-in-war tactics used by many successful trial lawyers. Williams argued that it is unethical to have clients use makeup to present a better appearance for the jury, or for lawyers to horse-shed* witnesses before they testify. "Are we trying to get at the truth or put on a spectacle?" Williams asked.

The association's outgoing president, Columbia Law Professor Walter Gellhorn, complained that, except in criminal proceedings, legal services are generally available only to those who can afford them. A penniless accused criminal must be provided with counsel, but lower- and middle-income people with civil problems often must make do without lawyers or "are likely to be served by lawyers with markedly inferior technical and ethical standards." Gellhorn mentioned legal "clinics" as a possibility, along with other substitutes for "traditional representation that cannot now be provided economically."

Gellhorn also expressed concern about the profession's failure to encourage promising young Negroes to study law. "Many law schools are eagerly prepared to welcome Negro entrants, but applicants for admission are rare." Labor Secretary Willard Wirtz weighed in with the suggestion that one big reason for the shortage of Negro law students is the shortage of opportunities for them in the large law firms after graduation. The legal profession, said Wirtz, is "the worst segregated group in our society."

Teaching Honesty. The delegates not only considered the faults of present lawyers, but also how schools might improve the ethics of future lawyers. The professors who spoke were not cheerful on that point either. "I don't think you can teach law students to be honest," said Professor Williams. "Their values have been set before they come to us. I still agree with the oft-made statement that the best way to attain better ethics in the law profession is to have a few good disbarments."

* Lawyers' slang for "preparing" witnesses. The term apparently derives from pre-automobile days, when lawyers often met with their witnesses in horse sheds.

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Interesting blast from the past, Alan. Use of make-up = unethical? I'm speechless.

Posted by: John Steele | Jan 19, 2008 8:53:53 AM

"[I]n large law firms, standards of conduct run higher."

Are you sure? Really? This is just a hunch, but I'm betting that it depends on what someone considers a violation, or, rather, an important one. While misappropriation of funds is probably more common amongst solos, I am betting that stuff like hour padding and frivolous motions/delays in litigation are much more common in large firms.

Posted by: Chris | Jan 20, 2008 8:29:34 AM

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