NCJ Number
46257
Date Published
1978
Length
248 pages
Annotation
ASPECTS OF UNETHICAL BEHAVIOR BY LAWYERS ARE EXAMINED WITH REGARD TO CONDUCT COUNTENANCED BY THE AMERICAN BAR ASSOCIATION'S CODE OF ETHICS.
Abstract
TWO FORMS OF UNETHICAL BEHAVIOR BY LAWYERS ARE EXAMINED: THAT CONDUCT WHICH THE CODE SANCTIONS, BUT WHICH SOCIETY VIEWS AS DISTINCTLY UNETHICAL; AND THAT BEHAVIOR WHICH IS GENERALLY ACCEPTED BY THE PUBLIC AT LARGE, BUT WHICH THE CODE ADMONISHES AS MISCONDUCT. FOR EXAMPLE, WHILE IT IS ETHICAL UNDER THE CODE FOR LAWYERS REPRESENTING A SUSPECTED MASS-MURDERER TO CONCEAL THE FACT THAT, ACTING ON INFORMATION PROVIDED BY THEIR CLIENT, THEY HAVE LOCATED THE BODIES OF ADDITIONAL VICTIMS, IT IS UNETHICAL FOR LAWYERS TO ENGAGE IN SUCH ACCEPTED BUSINESS PRACTICES AS ADVERTISING. THE BAR ASSOCIATION'S ROLE IN MAINTAINING AND JUSTIFYING THIS PATTERN OF ETHICS IS EXAMINED, AND THE DEVELOPMENT OF THE CODE IS TRACED FROM ITS ORIGINS IN THE FRATERNAL ETIQUETTE OF THE 19TH CENTURY. THE FRAGMENTED NATURE OF THE PRACTICE OF SPECIALIZED LAW IS EXAMINED, WITH ATTENTION TO THE COSTS BROUGHT ON BY SPECIALIZATION. VIEWS ON GROUP PRACTICE AND ON THE PROHIBITION AGAINST LAY INTERMEDIARIES, SELF-PROMOTION, AND ADVERTISING ARE DISCUSSED. THE CODE'S LACK OF GUIDANCE IN THE AREA OF FEES IS EMPHASIZED; THE USE OF MINIMUM FEE SCHEDULES, KICKBACKS PAID AS COMMISSIONS, THE PROBLEM OF ARTIFICIAL WORK, AND THE ROLE OF THE CONTINGENCY FEE ARE DISCUSSED. THE BASIC TENET OF THE LAWYER'S CREED THAT HOLDS IT ETHICAL TO AID IN A PROFESSIONAL MANNER THOSE INVOLVED IN UNETHICAL ACTS IS EXAMINED; THE ROLE OF THE LAWYER AS ADVOCATE, COUNSELOR, NEGOTIATOR, AND LOBBYIST IS DISCUSSED. PROBLEMS OF CONFLICT OF INTEREST ARE ALSO EXAMINED. THE FAILURE OF THE ETHICS SYSTEM REGARDING ENFORCEMENT AND SELF-REGULATION IS UNDERSCORED, AND SUGGESTIONS FOR REFORM OF THE CODE ARE PROVIDED. REFERENCE NOTES AND AN INDEX ARE INCLUDED. (KBL)