Abandoning an "Unethical" System of Legal Ethics
Prepublication version on SSRN
It is time to abandon the pretense of “legal ethics” as an independent lawyer-run system and to design a civil liability system in which lawyers can be held accountable to wronged clients at reasonable costs, ready access and fair modes of proof. To the extent the system of ethics actually caused lawyers to act “ethically” (and that is a major and largely unsupportable supposition) the competitive dynamics of the legal profession coupled with the significant decline in values, honesty and accountability in American society have rendered even that historically suspect system illegitimate. This does not mean that there are no ethical and fully professional lawyers because of course there are many. But it does mean that the confluence of an array of powerful economic and cultural forces combine to create a situation in which there is a high probability of many clients being ill-served by the lawyers in whom they have placed their trust. With that in mind, this analysis focuses on the duty of lawyers to perform beyond the level of minimal competence on behalf of their clients and seeks to show through an illustrative series of examples how relatively poorly lawyers act on their clients’ behalf. It develops the argument through those examples that demonstrate how too many lawyers behave in ways that advance their own interests to the detriment of their clients. It then offers suggestions about how a regulatory system could work to shape improved lawyer behavior through accountability measures enacted to protect clients. Some background analysis is offered to focus on the economic dynamics of the world of modern law practice because to a substantial extent the failures are attributable to economic and demographic factors that have arisen over the past several decades and increasingly undermined the already tenuous ability of lawyers to behave in a principled and effective manner on behalf of their clients.