Ethics and practicing law have a fascinating relationship. I posted last week about how it’s silly to suggest that ethics requires lawyers (or anyone) to always tell the truth. In the comments, I wrote the following in a reply to a comment by Scott Greenfield:
I think the lawyer’s biggest moral (as opposed to “ethical” re the rules) conundrum is the question of whether the lawyer is lying to himself that what’s good for the lawyer is good for the client. Self-deception is the real problem, because it makes our lies to others feel like the truth.
Scott suggested that was an idea for a post. I agreed, so here goes.
Lawyering, despite the efforts of those who write the ethics rules, has a conflict of interest built in: what’s good for the client is often the exact opposite of what’s good for the lawyer. And lawyers, being mere mortals, are morally fallible, and they know it.
They have to get past that knowledge if they are going to at least sometimes choose to do what’s best for themselves instead of what’s best for the client. To cope with making that choice, they lie to themselves in order to believe that what’s good for themselves is in fact what’s best for the client.
Straight cash, homie
Getting paid is the most obvious example. Despite the ethics rules, and regardless of fee structure, most lawyers get paid to do stuff, and the more stuff they do, the more money they make. That leads to the temptation to lead the client to believe that more stuff is needed than really is needed.
Contingency fee cases don’t solve the problem, although lots of attorney advertising suggests that they do. A lawyer looking for a big score might go to trial when a settlement was a better idea. Or vice versa.
Lots of lawyers, driven by their own best interests, are enablers for their clients’ worst instincts. This is particularly true in family court. A lawyer is “doing what the client wants” while draining the client’s bank account, and if there are children, harming them too.
Meet ’em, greet ’em, plead ’em
But it’s not just about money. Take the public defender trying to not get squashed like a grape under the crushing burden of an absurdly large case load. In order to survive, the PD must advise defendants to plead out cases that might very well lead to acquittal at trial. PDs call this “triage”—deciding, like the doctors in a war zone, which cases live and which ones die, and doing so in a very short amount of time.
Or take the in-house attorney at a big company who is working on a deal. The attorney’s self-interest is better served by refusing to take on any more liability than absolutely necessary. If things go south, the lawyer might wind up in the unemployment line. But taking on more risk can often lead to greater profits for the company. The attorney’s interests don’t match up with those of the company. Conversely, where were the in-house lawyers at Enron in the years before its implosion? Laughing all the way to the bank, presumably.
In order to deal with this cognitive dissonance, the lawyer begins, without really knowing it, to lie to himself. He resolves the conflict between his interests and his clients’ interests by creating rationalizations (excuses, really), by emphasizing certain facts over others, by overestimating the quality of the work done, and by many other tried-and-true methods.
Some lawyers do this very well. They are the ones that sleep well at night, get up early, get some exercise, then spend all day happily not helping their clients as much as they could, or should. Or even hurting their clients.
Other lawyers, not so skilled at self-deception, don’t sleep well, often abuse mood-altering substances, really hate their jobs, and sometimes take their own lives.
The truth will set you (somewhat) free
I’ve exaggerated a bit here for effect. But only a bit. And I am happy to admit that there lots of lawyers out there that help their clients a lot, and do so in a generally ethical way.
But I am convinced that when a lawyer accepts that this conflict exists, and sees at least the potential for self-deception, that lawyer has a far better chance to be as ethical, and as not-miserable, as the practice of law allows.
(photo: ugly truth phrase in vintage wood letterpress from Shutterstock)