The Legal Profession and Ethics

This morning Russ Pulliam pens an excellent column discussing Attorney General Greg Zoeller's campaign to improve the image of lawyers and whether that is contrary to campaign ads he approved attacking Democrat Linda Pence for some of the clients she represented. The column also discusses the unsuccessful attempt to get Zoeller disciplined for the ad he approved.

Before discussing lawyer ethics, I want to dispose of the nonsense that Zoeller should have been disciplined for his campaign ad. Above all, the First Amendment protects political speech. To ask the Disciplinary Commission to begin reviewing political ads and discipline attorneys for the content therein, is to invite the worst sort of intrusion into free speech. Regardless of whether the ads were fair, the First Amendment gives almost absolute protection to political speech.

Having said that though, I find Zoeller's interest in improving the image of lawyer to be intriguing. Unfortunately though it sounds like Zoeller believes the problem is poor public relations and a failure to explain what lawyers do. No, we in the legal profession have an image problem because of real ethical problems in the profession. We have attorneys who are willing to do just about anything if a client pays them. That conduct would be stopped cold if judges would simply crack down on attorneys who pull unprofessional or unethical stunts, or who violate the rules. Judges don't want to reprimand attorneys though. As far as the disciplinary machinery, if there is one thing that history tells us, it is that a profession which regulates itself does not regulate itself very well.

Pullium's column actually raises two issues. First, you have the issue that every person, no matter who they are, has a right to have legal representation. That is something I, and virtually every lawyer I know, believes in. That, however, does not mean that a lawyer is obligated to represent a client that is presently engaged illegal or unethical conduct, and wants your legal assistance so that illegal or unethical conduct can continue. For example, if a corporation is killing people by putting on the market Product X which is also highly profitable, it is unethical for an attorney to represent that company so it can continue selling the deadly product.

The far bigger problem with attorneys is "how" they represent, not the "who." I know an attorney who was trying to string out a divorce as long as possible so that the husband's insurance would cover health problems the wife, her client, had. So when a hearing or trial date came up, the attorney would move to vacate the hearing. But she would conveniently never mail the motion to the other side. The court, getting no opposition from the husband's attorney, then vacates the hearing date. One time the wife's attorney even went to court and represented to court staff that she had talked with the husband's attorney and they agreed that a hearing that was set could be vacated. It was a lie. Fortunately, the court staff called to confirm with the husband's attorney and found out the representation was false. But did that attorney ever get in trouble for lying to the court staff? No. Rare is there a judge who will crack down on this type of conduct.

I reviewed a case where a defendant who was left in jail for about 1 1/2 years even though he filed speedy trial motions that would have mandated that he be tried within 70 days. The defendant was pro se and the prosecutor's office was never serving him with motions. (They would instead serve the public defender who didn't represent the defendant.) The defendant would go into court, blindsided on motions he had never been allowed to see. While the judge was allowing this to happen, doesn't the attorney, the deputy prosecutor, have a moral obligation that transcends what the judge will allow happen? I think so. Certainly the deputy prosecutor knows his office was violating the speedy trial rule and that the rules required that court filings be served on the defendant.

Diana Vice's battles with Tremco are another good example. Tremco's is entitled to legal representation. What the big law firms should have balked at is the ethics, or lack thereof, of filing a SLAPP lawsuit to try to silence Vice in her public criticism of Tremco's bidding on public contracts. SLAPP lawsuits are not about prevailing on the merits. Rather they are about driving up the defendant's litigation costs so much that the person will have to cave in and stop speaking out. For attorneys to involve themselves in filing such a meritless claim to try to bankrupt some private individual is utterly reprehensible. One wonders how those attorneys sleep at night knowing what they are engaged in. Unfortunately courts have routinely refused to crack down on tactics of deep-pocket clients who try to drive up litigation costs of poorer litigants. The most fertile ground to drive up litigation costs is during discovery.

Then you have the big law firms that bill the city outrageous amounts of money, knowing that their bills are never going to be publicly reviewed or criticized. Want to know who built and furnished the nice offices Baker & Daniels, Barnes & Thornburg, and Ice Miller have? Go out on the street and look at the people, i.e. the taxpayers.

Attorney General Zoeller is right that the legal profession needs to improve its image. But right now that image represents the truth that there is a lot of unethical attorneys and practices in the profession. The legal profession needs more than a new coat of paint. It needs aggressive judges who will put their foot down on unethical antics that have too long been allowed in Indiana courtrooms.