Friday, January 8, 2010

72nd Installment. “Legal ethics” should be about ethics: The law’s “communicative scandal” as an ethical issue

A critique of the state-bar establishment rarely undertaken inquires about the shape of an ethical-and-intelligent ethical code. The corrupt and incompetent state bars and their academic allies have distorted the subject matter of legal ethics itself so that it doesn't recognizably concern ethics. "Legal ethics is no more related to ordinary ethics than Madison, Wisconsin is to James Madison," wrote one blogger. An ethical code shouldn't be written to guild interest or for solving every problem concerning service delivery; its rules should express only the core ethical content of loyalty to clients and truthfulness in dealing with them, but it should deal with these matters comprehensively.

An example of a domain the state-bar establishment ignores, chosen only because of my familiarity, concerns law firms' brief-and-motion-writing policies, implemented despite knowledge that they produce inferior documents. The subject is worthy of being treated as ethical because it's about loyalty to clients or truthfulness with them; which of the two core ethical values is implicated depends on the terms of the firm's employment. When a client retains a law firm on contingency, the firm's failure to allow legal writers enough time to produce near-best quality is usually a failure of loyalty to client; when a client retains an attorney at an hourly rate, the issue becomes the firm's truthfulness, since producing work of mutually agreeable quality isn't untruthful or disloyal, although, arguably, the civil codes should discourage contracts for subpar legal performance. The issue of truthfulness is whether the firm misled client about extending firm's best efforts on client's behalf.

The horribleness of writing in nearly all legal briefs and the weakness of analysis in most has become a standing scandal in law. Overwhelmingly, lawyers who must write say they aren't given sufficient time to write well, and have never had a legal environment that invested in their writing skill. The culprit is another of today's crescendos of market failures. Law firms might find it profitable to allow associates enough quality writing time for improvement if the firm anticipated employing these associate attorneys ten years hence, but long-term employment isn't expectable. The legal profession's communicative scandal makes "good enough" standards for administering firms' legal-writing practices essential to the profession's self-respect, but these reasons of public policy don't justify treating the matter as ethical. Standards providing for the ample allocation of law-firm time to writing projects are ethical standards because inferior writing is a major way clients are willfully cheated.

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