Professional Ethics: A New Code for Lawyers?

Abstract

T he American public has come to recognize, as the legal profession has long been aware, that the paradigm lawyer is not Perry Mason or Clarence Darrow, but the low-profile specialist working with a large law firm; that the paradigm client is not the solitary individual in trouble, but the corporation; and that the paradigm legal activity is not a dramatic courtroom battle, but behind-the-scenes advice, document drafting, and deal-making. The business of lawyers, to paraphrase Calvin Coolidge, is mostly business. Business is not exactly the most trusted American institution these days, and this has had its effect on the public's perception of lawyers. The public suspects that lawyers find ways for their corporate clients to evade laws and regulations, and generally to further their own interests at the expense of the common good. Few lawyers would regard this picture as accurate; nevertheless, the professional literature on legal ethics has devoted increasing attention to situations in which the obligation to protect third parties from a client may dilute a lawyer's loyalty to the client. Some of these involve corporate clients; many do not. All are highly controversial. The controversy within the profession has focused on a draft proposal for a new code of professional ethics, which incorporates more third-party protections than the existing Code of Professional Responsibility. The Bar is not eager to bind itself to rules that it sees diluting the lawyer's loyalty to the client. Partly, of course, this stems from an understandable desire not to bite the hand that feeds (and feeds well); but the motive is ethical as well, deriving from the Bar's deep tradition of client loyalty. It is unclear that the American Bar Association (ABA) will pass the new Rules. This, I wish to argue, would be unfortunate, because the draft proposal is an intel-