84th Installment. The Inherent Untruthfulness of CYA Letters

A CYA (cover your ass) letter is one whose purpose is to rebut client's blame in advance when acknowledging the motive would defeat the purpose. (See 75th Installment, The Torture Memos & the Tortured Legal Ethics Justifying "CYA Letters," for elaboration.) Ethicists mostly ignore CYA letters, an ensconced form of professional untruthfulness.

After I commented that professional protectiveness toward CYA letters stymied the prosecution of John Yoo, Monroe Freedman, who posts at the Legal Ethics Forum, tried to open a discussion of CYA letters. Here's the example he posted:

In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War. I was in charge of ACLU’s litigation effort on their behalf.

One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably [sic] cause and with no record made by the arresting officers of the circumstances of the arrests. (In fact, one of the group was a White House secretary who had been arrested while walking to work.) The arrestees were required to post collateral and given court dates for trials. Many did not appear because they had come from distant places. In those cases, the government moved the court to forfeit their collateral and enter a conviction. Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.

Monroe describes his CYA letter:

Thereafter, with reference to the MayDay “arrests,” some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested. I told them that, in my opinion, they could properly answer no. (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.) However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue. I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied. In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them. However, I did not include my cautions in the letters I simply stated the facts and my opinion. [Emphasis added.]

Momentarily disoriented by my substantive agreement with Monroe's cause—I'm less sympathetic to some of his other causes—I seriously erred in my comment (while the other commenters missed the point). An unfortunate error of mine, as Monroe's letter contains the fundamental CYA disclaimer, the basic formula rendering CYA letters a dishonest practice. My comment is useful here because it illustrates the fallacy committed by attorneys who think CYA letters benign. Mistakenly exculpating Monroe's letter, I posted:

The equivocal caveat in your direct advice amounts to advice about using the advice; placing this "meta-advice" in the letter leads a third-party reader to read the qualification into the advice itself.

My comment elevated form over substance. The language of the disclaimer is part of the advice: it's information about the likelihood the advice will prove accurate. It is no less part of the advice than a direct statement expressing that likelihood. The counter-argument that the disclaimer is boilerplate is unavailing: it compounds untruthfulness, as boilerplate inaccurately expresses the attorney's opinion in the particular case. When attorneys gratuitously denigrate their own degree of confidence through boilerplate disclaimers, they are no less untruthful than when they exaggerate their certainty. Likelihood of accuracy is of the essence; John Yoo's misconduct was gross over-confidence in his theory.

CYA letters are so ingrained in American legal practice that even I overlooked the unethical character of Monroe's letter. The deep seated untruthfulness of a professional practice is matter for deep concern. It makes lawyers oblivious to other forms of dishonesty, lowers professionals' commitment to truthfulness, and creates an accurate public impression of dishonesty. CYA letters also constitute bought exoneration, where a client's attorney administers "justice"—for a fee.

82nd Installment. The Scope of Legal Ethics

The profession must rethink legal ethics' scope: which rules define moral character, which rules merely regulate conduct, and what significance differentiates the two. The vast scope of rules purporting to be ethical itself oppresses lawyers and the public when it moralizes administrative duties, bestowing on their enforcers morality's undeserved imprimatur.

Try to solve the following hypothetical by William Simon. (See W.H. Simon (1999) Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433.) Although not Simon's intent, the hypothetical shows how today's versions of legal ethics disparage some desirable but amoral administrative rules, while over-enforcing, as if rules of ethics, other amoral administrative rules. Here's the hypothetical, a true story:

Simon discovers that Government agency fakes supevisor's absence to excuse unjust delay of client's food stamps. He impersonates supervisor's boss, bringing "absent" supervisor to the phone. Simon reveals own identity and confronts supervisor, who offers expected excuses and immediately releases client's food stamps.

Simon violated the governing Model Rules of Professional Conduct, which prohibit all lying to third parties or opponents, and in class discussion, most of his students criticized his conduct as unethical. For his part, Simon rejects "quasi-categorical ethics" in favor of a contextualized analysis, where the virtues of such "moral activism" shine through. I can't fault Simon's specific conduct: his students' arguments, too formalistic, don't persuade. Simon prevaricated but harmed no one, but focusing the discussion on an indigent client's oppression by a powerful and indifferent institution distracts the reader from considering that our adversarial system enforces the law of lawyering reciprocally: consider if a government lawyer deceived the client to discover misstatements on the client's application. The public reasonably demands a certain respect for the dignity of opponent and third parties by lawyers, whom the state grants a monopoly in their trade.

The rule should have been enforced against Simon, but the main question is how, as Simon didn't act unethically in breaking the rule: in context, he even acted admirably. To discipline him professionally would unjustly threaten his right to practice, when his conduct, not morally turpitudinous, betrayed no lack of fitness for legal practice, instead showing ingenuity and zeal. While Simon's students and the bar-establishment responsible for their thinking would accuse Simon of unethical conduct, Simon favors reforming the rules to permit the conduct, but both mistakenly accept the ethical (that is, moral) character of any good rule specifically governing law practice. To the contrary, violating a rule benefiting the profession or the public does not necessarily mark the violator unsuited for practicing law. Different ethical theories imply different assessments of Simon's conduct, but disloyalty to a client, lying to the client, lying about the facts or law in court, reveal a flawed character because these acts transgress core moral principles pertaining to an attorney's agency.

A jurisdiction's "law of lawyering" is often split between a code of ethics and an ordinary legal code, in California, the Business and Professions Code, but the section of the law's corpus in which a provision falls barely affects its content or the consequences of violating it. The law should recognize a material distinction between administrative rules and ethical rules. Rules like the general prohibition against lying in the course of representation belong in the legal rather than the ethical code. Rules that create an orderly profession but don't define the moral core of the law of lawyering should be enforced by civil fines and penalties rather than professional discipline, to deter undesirable conduct without supplying a disciplinary yardstick. Including rules besides narrowly defined ethics in an ethical code disparages the real ethical commandments, centered on loyalty to client and specific forms of truth telling, by equating them with administrative requirements. Most importantly, using administrative rules as if they were ethical rules subjects excellent lawyers of sound character to professional discipline.

A rule's amoral, administrative character shouldn't preclude its enforcement because of its not being a proper rule of ethics, but genuinely ethical rules aren't purely systemic, and only rules of ethics, those rules whose violation directly and incontrovertibly reflects adversely on moral character, should form part of the recognized professional ethics.

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.

69th Installment. What (the absence of) medical ethics can teach legal ethics

Medicine — which in California had its Drexel era back in 1991, inflicted by the Legislature — is ahead of law in the arbitrariness and malice of its policing mechanisms. The advanced morbidity of both medical ethics and its supposed enforcement holds lessons for the direction of legal ethics.

After the peer-review "reforms" of the late 80s and early 90s, peer-review process has increasingly dominated physician discipline. The "reforms" provide nearly absolute immunity for those accusing physicians and those adjudicating physicians' alleged infractions. Peer review can deny hospital privileges, often tantamount to professional annihilation because of the tight connections between the public and private discipline bodies.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.

(http://tinyurl.com/y8nyoh6.)

The immunity of all involved in an accusatory process amounting to a trial unconstrained by any law of evidence has made the peer-review process a breeding ground for anticompetitive conspiracies and, particularly, the persecution of doctors who advocate for patients or retain a vestigial desire to practice competent medicine. The abuses against doctors with integrity have earned the designation "the disruptive doctor doctrine," under which whistleblowers who complain about the quality of care are tried on trumped up charges.

In my experience, it is never those physicians who regularly place patients at risk with questionable medical practices or outright negligence that are the ones who raise concerns about patient care. It is those hotheaded physicians who are passionate about patient care and the quality of medical treatment who raise hell, take their grievances to hospital administrations, and demand change. And unless these same physicians are economically valuable to the hospital and/or have considerable political clout then they might as well kiss their careers goodbye.

(C. Rangel, M.D. at http://tinyurl.com/y98bc34.)

Corrupt medical-ethics' policing feeds from the initially low level of medical ethics, itself in part product of the number of students pursuing medical study hoping for enrichment, in part product of policing that was always guild oriented and never oriented to ethics based on patient loyalty — as many longstanding practices indicate; practical medical ethics accepts that physicians will shirk basic duties to their patients when in the physicians' interests. Practicing "defensive medicine," for example, has long been acceptable, even mandatory. In countenancing defensive medicine — certainly never disciplining it — physicians ratify methods that don't benefit, indeed, even harm the patient, at least causing inconvenience, often worse. The "defensive" physician is disloyal to his patient and probably lies to the patient about the tests' medical necessity. Spacing office visits for the sake of revenue collection — because, for some anachronistic reason, physician fees are tied to patient contact — is another professionally accepted practice that is disloyal to the patient. The patient is, again as a rule, lied to about the medical necessity of the contact but, increasingly, setting office visits for billing purposes is cynically accepted as realistic. ("Crackpot realism," in C. Wright Mills's phrase.) Looked at from an objective ethical standpoint — without succumbing to the root vice of community standards for a scientific activity — one should say that any doctor doing any of these things should be hauled before a medical board for moral turpitude in medical practice — if only medical ethics were about patients' interests or the doctor's fundamental honesty in patient dealings.

Deterioration in medical ethics accelerates. Most stunning have been the revelations that psychiatric pharmaceuticals are usually validated only by studies the drug companies finance, design, and control. This corruption implicates renowned professors at the nation's foremost teaching hospitals and medical schools. The defective policing of medical ethics has stemmed from hysterical reaction to real gaping defects in physicians' ethics but more directly from the refusal of physicians on peer-review panels to take ethical responsibility for patient welfare, the universal acceptance that peer-review panels will provide competent and sincere review only if the reviewers have immunity from any resulting civil litigation. The objective ethicist may ask why should physicians feel free to disregard their duties to patients and their duties of truthfulness in matters concerning patient welfare because of the possibility they may be sued for defamation? An incredible ethical laxity; if physicians participating on a peer-review panel lie about their conclusions to avoid possible litigation, this self-serving conduct is an ethical violation by any standard true to ethics' roots in loyalty to patient and honesty in matters affecting the patient's welfare.

The decline of medical ethics consists of disregard for loyalty to patient and honesty in matters involving patient welfare. The deterioration involves putting economic self-interest and institutional interest above patient loyalty and truthfulness, an emphasis not deflected by increasingly harsh physician discipline; indeed, furthered by discipline for the wrong offenses. Doctors are increasingly disciplined for failure unconnected with loyalty or truthfulness, the twin pillars of genuine professional ethics: in one typical instance a doctor was disciplined for failure to report what the authorities believed was child abuse of a patient's neighbor. (See http://tinyurl.com/y8nyoh6, supra.) Harsh and arbitrary discipline meted out by the peer-review panels and medical boards reinforces physicians' disloyalty to patients by punishing doctors for failures of dual loyalty to third parties, including state authorities. The law analogy is disciplining attorneys because their conduct successfully advances their clients' interests: discipline to uphold the authority of judges and respect for bar.