Last Book Blogging Post for '08
Dawkins' Answer to Pascal's Wager

Is Legal Ethics About Protecting Clients?

If this post gets noticed, I expect it to be controversial.  Some will use emotion or make other bad arguments.  But those arguments all fail, when you look at lawyering from the client's perspective.  If you were a client, what conduct would harm you most:

1) You gave your lawyer a $5,000 retainer.  The lawyer is to draw on this retainer only after work has been performed.  But you nonetheless expect the lawyer to perform $5,000 worth of legal services.  One week later, your lawyer is short on cash and can't make payroll.  Using the $5,000 he put into a checking account for you, he starts writing $5,000 worth of checks.  Two weeks later, he performs $5,000 of legal work for you.  Feeling a little guilty about the interest-free loan you gave him, he actually give you a couple of hours of free work as interest.

2)  You see your lawyer on Dateline NBC, being asked by Chris Hansen to, "Please take a seat over here."

3)  You are emotionally vulnerable and needy.  Your lawyer is someone you tell things you never tell anyone else.  You trust your lawyer because of the relationship you developed through attorney-client privilege conversations.  You eventually have sex with your lawyer.

4)  Your lawyer makes a critical mistake in your criminal case.  Because of this mistake you spend 25 additional years in prison.  

As a client, which would harm you the most?  Most would say that 4) is unacceptable; 3) is shady as all Hell; 2) is disgusting and might make you want a new lawyer, but doesn't affect you; and 1) wouldn't even be an issue - and thanks for the free work! 

Legal ethics, however, says the following: 1) is the worst conduct imaginable.  A lawyer caught doing 1) would be suspended.  Fall on your sword, beg for forgiveness, repent.  And maybe you won't get disbarred. 

A lawyer caught doing 2) would be suspended, but probably would not be disbarred.

A lawyer caught doing 3) would almost certainly not receive any punishment.

A lawyer caught doing 4) would receive no formal punishment.  At all.  He would be left free to screw up other clients' cases.  At worst, some judge in some opinion would publish his name.

Does that make sense?  As a client, you probably don't think so.  Given that, one must wonder: Is lawyer discipline about protecting clients, or about enforcing a worldview (lawyer-as-status-symbol)?  Is legal ethics about protecting your, or about making lawyers feel more dignified?  Does knowing that lawyers who harm clients will almost never been punished make you think more highly, or less highly, of the legal profession?