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Legal Ethics
in a Time of Historical Change.
 

It will help us understand where we are today, if we look back at the history of legal ethics in the United States.  In 1908 the ABA adopted the original Cannons of Professional Ethics.  These were based  on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been adapted largely from the lectures of Judge George Sharswood, published in 1854 as Professional Ethics.  These ABA Cannons of Professional Ethics were aspirational in character.  They were what lawyers "should do" — not what they "must do".  Lawyers were told that they should "do good".  The Code of Ethics of the ABA was not generally enforced by way of legally enforced sanctions. 

Stop. Notice that when lawyers first started talking about legal ethics they were talking about legal ethics in the dictionary meaning number one, to wit: the study of the general nature of morals and the specific moral choices to be made by a person.  The aspirational effects of such a study were what drove what lawyers should do.

In 1969 the ABA produced the Model Code of Professional Responsibility.   Suddenly lawyers had a code framed in the number two meaning of ethics in the dictionary, to wit:  a professional code of ethics.  This code of ethics had teeth in it; violation could cost a lawyer a law license.  The Model Code was adopted subsequently by the vast majority of state and federal jurisdictions as enforceable rules by the courts supervising lawyers.  Thus, for the first time we had ethics rules of what lawyers must do, for fear of losing their license to practice.

Notice that 30 years worth of graduating law school students now have left law school not studying morals, but rather studying a code of rules that could not be violated on pain of sanction.   Instead of studying Ethics 101 in the Arts college, they were studying “Model Code of Professional Responsibility 101 in the Law college.  Instead of studying Aristotle's lectures on the actions of a good man, they were studying courts decisions on what a lawyer could do in his/her business and not be subject to any monetary discipline.

Because of demographics, the majority of lawyers practicing law today graduated in these last 30 years. Since 1969 we have had a succession of revisions of the Model Code of Professional Responsibility with more and more rules and standards of what a lawyer "must do".  This has been the almost exclusive way in which lawyers and courts have looked at ethics in the last half century.  It is now difficult for lawyers steeped in the ABA Model Code to think first of “what is morally right?”—  rather than “what is the rule the courts say I must follow?”

And now, society is telling governments and courts (legislators and judge's both read the newspaper) that lawyers must turn to a neoethics, to wit:  the combination of ethics both as morals and also as standards.  In today's society lawyers and courts can no longer indulge in the luxury of keeping their private morals and the public’s morals separate from lawyers professional standards. The Code of Professional Responsibility, says today society, must include being a code of societal responsibility.  This is not a new idea, but certainly the idea has been buried by the legal profession under a set of statute-like standards that only need to be memorized to pass the nationwide ethics test.

Yet, indeed, Model Rule 2.1 does call us to aspire.  It may be a weak call ("may" not "shall") but it does exist.

"Rule 2.1] Advisor.  . . . In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

Rule 2.1 is a rule that you almost never find mentioned in formal legal ethics opinions by bar associations.  Indeed, the entire emphasis in the last half century has not been on “other considerations such as moral, economic, social and political factors”.  Society is now telling us lawyers we had better “refer not only to law, but to other considerations such as moral, economic, social and political factors”.   The neoethics rules the courts enforce in this century will respond to those “ other considerations such as moral, economic, social and political factors”

Our law businesses are now subject to the corporate ethics theory known as the stakeholder theory. In the stakeholder theory there is a recognition that all the stakeholders are necessary for the corporation to exist.  A corporation without customers, stockholders, suppliers, government protection, et cetera, cannot exist.  

Society is now demanding that lawyers look at all of the people with ethical stakes in our law business.  The people with ethical stakes in our law business are:  client, opponents, government, employees, your partners, the courts, adverse counsel, and you.  In the last half of the twentieth century lawyers and courts concentrated only on the ethical stakes of only your client and you, when considering what should be done by you in your law business.  All of those other stakeholders have been left out of consideration.  Today, in this century, interest has shifted to the stakes of all the stakeholders in your law business. We must recognize that society and the courts now sometimes upgrade the value of interests of some stakeholder to be greater than the interests of your client and you.

That is why in the neoethics of today we see a sudden change in the times in which the lawyer is supposed to alert the public or government about bad things that his client is doing.  Twenty years ago it was unthinkable that lawyers should inform government about their clients, absent the most clear and convincing threat of death at the hands of the client.  Enron and 9-11 have driven morals into legal ethics. The government demands that if lawyers are going to practice with their corporate clients, then the lawyers must start affirmatively bringing their clients to account under rules of public morality and decency. The new and changing rules, in federal rules and in many states, regulating when the attorney must alert the public, and disclose client confidences,  is a response to that demand.

We lawyers must recognize the social reorganization and values change which is occurring at the beginning of this century.  It is a change which is shifting the way the public thinks of professional ethics.  If we recognize that there now is a combined legal/social ethical framework in which lawyers must work, we will recognize the new way in which we have to respond.  We will recognize that we must start changing ethics rules and refinements to respond to this new legal/social framework of the 21st century.  

Summary: a neoethics is here, with:

• a new combined legal/social ethical framework in which lawyers work;

• a new way in which lawyers must perceive ethics as a subject of study; and

• new ethics rules and refinements that respond to this framework and perception.

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