WHATEVER LEGAL SCHOOL OF THOUGHT A LAWYER ESPOUSES, CONSIDERING THE ETHICAL RAMIFICATIONS OF ANY ACTION IN THE ATTORNEY-CLIENT RELATIONSHIP SHOULD BE FOREMOST IN A LAWYER’S DECISION MAKING PROCESS.
In any business practice, as in life, the setting of the correct ethical priorities vertically and horizontally is mandatory since it impacts one’s reputation in the business community. Contrary to the opinion of the late comedian and linguist, George Carlin, that “business ethics” is oxymoronic, the fact of the matter is that ethical considerations should be at the forefront of any decision-making process.
The practice of law, in today’s world, is a service business which requires, among other things, keeping our clients fully informed of his or her representation. Arguably, it is the only way to effectively advocate on a client’s behalf, as a client’s input is essential to formulating the appropriate winning strategy.
In New Jersey, when one is admitted to the Bar, s/he decides whether to take the title of either “attorney” or “counselor” at-law. I have always found that when I have sought advice, it would be asking for serious counsel, be it politically, socially or interpersonally, and thus the reason for the choice “counselor-at-law” in my office title.
Since American jurisprudence is based on our predecessor, the English legal system, it is basically and fundamentally a compilation of laws based on the need of the community, qua community, with regard to choosing between right and wrong. Although societal mores may change from time to time and thus require modification of existing laws, based on the philosophical posit of “rationis lex cessat, lex ipsa cessat” (when the meaning of the law changes, so does the law itself), nevertheless, it is this author’s opinion that there are some actions that are in and of themselves essentially wrong. In criminal law as in moral theology, these actions are known as malum in se, in contradistinction from malum prohibitum, which are offenses legislatively proscribed by society.
Unfortunately, for some legal practitioners, as in other licensed disciplines, the Code of Ethics often represents only the boundaries beyond which lawyers are subject to discipline. Yet, for the vast majority, the Code acts simply as a guideline as one’s internal moral compass permeates the decision-making process in either accepting the representation of a client, or rejecting retention by a potential client.
Legal advocacy, in our present day and age, is not only challenging but difficult given the competitiveness of the marketplace which in turn is directly proportional to the economic constraints we presently suffer. We often read about horror stories in the marketplace, where lawyers’ wrongdoings become a media event. However, most lawyers consider their practice to be a profession and actually give back to the community in various, voluntary pro bono representations. As a matter of fact, many of my colleagues and I dedicated four years of our time (together with a coalition of associated non-lawyers), in serving on the District Ethics Committee, which required on a monthly basis, mandatory attendance, examination, research, written reports, presentations and occasionally prosecution of the alleged wrongdoer. In corresponding venues, attorneys freely give of their time in overseeing arbitration disputes.
As a result of a multitude of varied legal interpersonal interactions, I have determined that the best way to represent, advocate or counsel any client or potential client is through the eyes of a preliminary ethical analysis. Believe it or not, not all lawyers are cash machines. Most attorneys take their jobs seriously, and often, when a novel legal issue presents itself which requires hours of research and preparation most lawyers never charge a client for their time, especially in a flat-fee retainer arrangement, despite the fact that by Court Rule, a lawyer may ask the Court for an increased fee based on extraordinary time expended.
As legal representation is contractual by nature, some clients exercise their right to terminate the representation and hire new counsel. Often, attorneys will return all or a portion of the retainer if it is not a contingent fee case so that the client realizes, in a visual way, the level of professionalism which we seek to espouse philosophically.
In summation, whether we as counselors are providing legal advice, or honestly advocating for a client, the golden thread remains: courteous, competent, professional and above all, ethical representation as the paradigm for excellence. Remember, one should never lose sight of integrity in the practice; our reputations should represent both our legal competence and the highest level of ethical conduct.