Monday, March 4, 2019

A Business Lawyer's Obligation to Speak

FS(CDanielCartoon)

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"A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

Am. Bar Assoc., Model Rules of Prof. Conduct Preamble ¶ 1 (emphasis added)

Although we business lawyers do not talk about this much--at least not in forums like this--as licensed attorneys, we have an obligation to speak out publicly on matters of justice.  Paragraph 6 of the Preamble to the Model Rules of Professional Conduct offers details on this role.  Among my favorite parts of this paragraph from the Preamble are the following duties that most commonly impact my work:

  • "As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession."
  • "As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education."
  • "In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority."
  • "A lawyer should be mindful of deficiencies in the administration of justice . . . ."

Also, from Preamble ¶7, I note the lawyer's obligation to "strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service."  And Preamble ¶5 notes the lawyer's duty "to challenge the rectitude of official action."  Although the Model Rules themselves focus little attention on the lawyer's role as a public citizen, I have always taken that role quite seriously.

I have been a consistent servant to bench and bar over much of my career, both in Tennessee (where I hold an active license to practice) and in Massachusetts (where I first practiced law and continue to have an inactive law license).  I am proud to say that The University of Tennessee College of Law recently honored me for that service.  This public service work sometimes involves speaking Truth to Power: telling policy makers they have the law wrong or are interpreting it incorrectly or improvidently in context.  This service also comprises (among other things) informing the public about important matters of law and policy as they impact various constituencies, educating oneself about new developments that impact law and law reform, and seeking improvements to the law that best align with desired policy objectives.  Having worked on all of the business entity law reform projects in Tennessee since 2000, my continuously developing skills in these areas have been battle-tested many times.  I have written in this space about some of the battles and issues (see herehere, and here, e.g.), in part as a means of complying with these public-facing duties.

Of course, the licensed attorney who also is a university professor is not exempt from these obligations.  For these lawyers, however, especially those employed by public universities, the number of touch-points with matters of public justice may increase.  I teach primarily in the same subject matters that inform my service to the bench and bar--business law.  However, my work as a law professor encompasses not only business law matters, but also matters relating to the administration of justice in the educational setting both in and outside the College of Law.  In particular, as our campus Faculty Senate President (2010-11) and as a faculty advisor to campus student organizations in and outside the law school over the course of my 18.5 years of law teaching, I have found myself faced with a fascinating array of legal issues that intersect with public policy, public education, and educational policy--legal issues that, for example, implicate "the administration of justice," raise questions about "the public's understanding of and confidence in the rule of law and the justice system," and represent or reveal potential "deficiencies in the administration of justice."  My obligation to speak out on these matters has required me to "cultivate knowledge of the law" in new areas related to (among other things) law reform and, on occasion, improvements to legal education.

As a Faculty Senate leader, for example, I confronted important legal issues relating to same-sex employee benefits and state-proposed legislation allowing faculty and staff with gun permits to carry their guns on campus.  (The cartoon above portrays me moderating the Faculty Senate debate on the guns-on-campus issue.  Unfortunately, as you can see, the cartoonist failed to accurately depict my gender. He later apologized for the oversight.)  But perhaps most prominently, I have had to enhance and use my knowledge of the First Amendment and free speech precepts in my work as a faculty advisor to Sexual Empowerment and Awareness at Tennessee, the student group that plans, funds, and implements our campus Sex Week, a week-long set of events focusing on sex-positive sex education produced by students for students.  (I will skip here the story of how I came to advise that group, in the interest of space. But let's just say that the founders of the organization made a compelling case for more and better sex education on our campus and I had some skills and connections that they thought could be of help.) These are but a few examples.  My professional obligation to speak out on legal matters involving justice has been triggered many times over the years.

I also should note here that, for law professors who are licensed to practice, debates on matters of justice not only implicate the lawyer's professional responsibility but also interact with academic freedom and First Amendment rights.  This post is already getting too long, so I will not get into those matters here. Suffice it to say, they are different protections, but either or both could apply to the public communication of matters involving the administration of justice, law reform, legal education, and public education on matters of legal significance.

The protections of academic freedom and the First Amendment certainly are helpful to university professors of all sorts, including law professors who are licensed to practice.  However, my main purpose in this post is to shed a bit of light on the professional responsibility obligations that a licensed business lawyer has to speak out in various contexts.  While we do not often think of business lawyers as justice and law reform advocates, licensed attorneys practicing business law are bound by the same professional duties that bind all licensed attorneys--including the important obligations a lawyer has as a public citizen responsible for the quality of justice.  For a business law professor who is licensed to practice law, these obligations extend beyond teaching and scholarship and into the law professor's public, university, and campus service.  I submit that this makes the lives of business lawyers--like all lawyers--challenging.  Yet, I can personally testify that the obligation to speak also can be both enlightening and rewarding.

https://lawprofessors.typepad.com/business_law/2019/03/a-business-lawyers-obligation-to-speak.html

Constitutional Law, Ethics, Joan Heminway | Permalink

Comments

I'm sorry, I'm just stuck on the part where the cartoonist wanted to depict an actual event but changed it so that a man, rather than a woman, was speaking. It's jaw-dropping and yet not unexpected at all.

Posted by: Ann Lipton | Mar 5, 2019 5:16:28 AM

Ann, no need to apologize. That may be the most interesting/provocative part of the post for many! I knew when I included the cartoon and explanation that it would be sticky with some folks . . . .

When I wrote a letter to the editor of the paper regarding the gender mix-up, I copied the cartoonist on the submission. We had a lovely exchange. He was a favorite of mine. No hard feelings resulted.

He recently retired. This was a sad day for me--the end of an era for our local paper. But I have my treasured cartoon as a life-long gift from him!

Posted by: joanheminway | Mar 5, 2019 6:33:48 AM

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