Legal Studies Research Paper Series Research Paper No.

07-56 September 2006

THE IMAGES OF LAWYERS Fred Zacharias

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=929505

THE IMAGES OF LAWYERS Fred C. Zacharias*

* Herzog Endowed Research Professor, University of San Diego School of Law. The author thanks Professors Albert Brophy, David McGowan, and Shaun Martin for their helpful comments on an earlier draft of this essay and Yong Yeh for his research assistance.

Most debates about lawyers professional responsibilities ultimately devolve into discussions of the role of lawyers including the functions lawyers serve in the legal system, how lawyers should achieve those functions, and how lawyers should reconcile conflicts between competing interests that are potentially affected by their conduct. The notion of a lawyers role can be helpful for identifying principles of behavior. Thus, for example, whether attorney-confidentiality is appropriate and whether exceptions should be acknowledged depends on the conception of lawyers from which one starts. If lawyers are to be clients sole and fully allied champions, then strict confidentiality rules make sense. If lawyers are to be objective intermediaries between clients and society and have independent obligations to the law, exceptions seem more acceptable. The task of code drafters is facilitated when they can proceed from the assumption that a single paradigm governs the lawyers role either a paradigm encapsulating a theory of behavior (i.e., how lawyers ordinarily act) or a paradigm encapsulating a normative ideal (i.e., how lawyers should act). When code drafters rely upon multiple paradigms (e.g., lawyers should act as clients alter egos and as officers of the court), inconsistent regulatory mandates can result and lawyers may become confused about their functions. The ABAs 1908 Canons of Ethics, which prevailed in most American jurisdictions throughout the early twentieth century, suffered from an emphasis on inconsistent ideals. 1 Therefore, when the ABA adopted the first concrete professional code in 1969, 2 it became important for the drafters to identify an over-arching
1

See generally James M. Altman, Considering the A.B.A.s 1908 Canons of Ethics, 71 FORDHAM L. REV. 2395, 2439-42 (2003) (analyzing the 1908 Canons); Fred C. Zacharias and Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 GEO. WASH. L. REV. 1, 1726-27 nns.160-62 (2005) (discussing some of the ideals contained in the 1908 Canons). AMER. B. ASSN, MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1969) (hereinafter Model Code).

theory. The bar was in a state of disagreement about lawyers roles and lawyers had no point of reference for determining how to act. 3 By emphasizing the lawyers place in the adversarial system, the 1969 code served a forceful unifying and educational function. 4 Nevertheless, an ethics codes overemphasis of a single paradigm can lead to undesirable results. It tends to produce idealized rules that either rest on counter-factual assumptions or impose obligations on lawyers that are so inconsistent with their personal incentives that violations become routine. In modern times, lawyers have developed a shared sense of core obligations to clients and of the part lawyers play in the adversary system. The recent history of lawyer regulation reflects a desire on the part of the bar to fine-tune the basic message of the 1969 code to recognize more nuances than, perhaps, a single image of lawyers can accommodate. 5 The task of drafting professional rules is complicated by the fact that the public perception of the bar is not unitary. Society views lawyers in many, sometimes inconsistent, ways. These multiple conceptions influence code drafters. In practice, the modern legal ethics
3

See Fred C. Zacharias, The Future Structure and Regulation of Law Practice: Confronting Lies, Fictions, and False Paradigms in Legal Ethics Regulation, 44 ARIZ. L. REV. 829, 831 n.6 (2002) (noting that, as compared to the time when the 1969 code was adopted, Modern rulemakers . . . may have more leeway to draw distinctions without risking a collapse of the entire enterprise ); compare Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469 (1966); (advocating a strong lawyer- as-clients-champion model) with John T. Noonan, Jr., The Purposes of Advocacy and the Limits of Confidentiality, 64 MICH. L. REV. 1485, 1486-89 (1965) (criticizing Freedmans model as overemphasizing battle aspects of trials). Indeed, all forty-nine states and the District of Columbia adopted the Model Code essentially intact. Duncan T. OBrien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 679 (1986).

After the states virtually unanimously adopted the Model code, the bar remarkably found the need to reevaluate and revise the professional rules on a frequent basis. A commission was formed to reevaluate the Model code soon after its adoption, leading to the 1983 Model Rules. Soon thereafter, the American Law Institute undertook a revaluation of the many of the same issues, and ultimately adopted the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2001). Toward the end of the century, the ABA appointed a new commission to reevaluate the Model Rules, resulting in wholesale revisions to the Model Rules in 2002 and 2003. This history is discussed in Fred C. Zacharias, The Quest for a Perfect Code, 11 GEO. J. LEGAL ETHICS 787 (1998).

codes incorporate a number of images of lawyers as bases, or catalysts, for disciplinary rules. Relying on these images has consequences for how the codes treat lawyers and, as a theoretical matter, for how the rules should be drafted. Part I of this Article identifies some of the different images of lawyers that exist 6 and the ramifications of emphasizing each image (e.g., as a paradigm) in the professional codes. Initially at least, this article takes no position on the accuracy of the images in describing lawyer behavior for example whether lawyers act in a self-interested manner or whether lawyers feel bound by unenforceable professional norms. As a practical matter, each of the images has solid footing in some respects. That is to say, each is based on a valid characterization of how lawyers act in some situations. Part I will suggest, however, that relying upon multiple paradigms inevitably fosters schizophrenia on the part of the code drafters. Part II therefore considers how code drafters can best deal with the existence of multiple conceptualizations of lawyers. How might codes deal with the different realities reflected by lawyers varying images? What would be the consequences of thinking in less paradigmatic terms for code-drafting, discipline, who should regulate, and the substantive regulation of attorney-client interrelationships? Part II attempts to provide some postulates, or baselines from which professional regulators should begin. Finally, Part III considers a few concrete examples of existing rules that are based on faulty or inapplicable images or paradigms. It suggests a few basic approaches professional code drafters might take in formulating appropriate regulations. In considering this articles analysis, it is important to understand how legal ethics codes

Other images are discussed in Zacharias, supra note 3, at 844-49.

differ from ordinary laws governing the behavior of citizens. Although one purpose of the codes may be to prevent and punish particular behavior, that is far from the only purpose. The professional codes also guide lawyers, protect and influence clients, provide information, facilitate communication among participants in the legal process, and shape the image of the bar. 7 This means that code drafters may adopt rules for reasons other than to prevent bad conduct. It also means that professional code drafters and disciplinary agencies must think about the nature of lawyers and the functions they perform more than ordinary lawmakers considering the proscription of particular conduct. 8 The code drafters therefore need to rationalize or justify the rules they adopt on a continual basis. Although this article does reach some conclusions, the purpose of its analysis is not to propose or criticize specific rules. The articles point, though simple, is broader: the regulators should openly acknowledge the theory, or theories, on which they proceed. Inevitably, after a code is adopted, individual reforms will be proposed some addressing minor or isolated issues and will be adopted more because of their factual setting (e.g., a period of corporate scandals) than because of their consistency with the codes overarching paradigms. Unless the initial drafters have made the limits of their general theory clear, or identified how and when other paradigms might reasonably be considered when reform becomes an issue, the idiosyncratic or fact-based reforms are likely to undermine the codes coherence.

See generally Fred C. Zacharias, Specificity In Professional Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223 (1993). See Fred C. Zacharias, The Purposes of Lawyer Discipline, 45 WM. & MARY L. REV. 675, 683-91 (2003) (distinguishing professional discipline from the enforcement of criminal law).

I. THE IMAGES OF THE BAR When code drafters adopt particular rules, or a set of rules, they typically have in mind a popular conception of individual lawyers, how they operate, or how they respond to legal constraints. This conception may be based on an ideal for example, lawyers should be better citizens than ordinary laypersons. It may be based on flaws that some lawyers have exhibited in the past, including stealing from clients, putting their own interests first, or failing to recognize the dependence of clients. It may be based on a theoretical construct that identifies lawyers as cogs in the adversarial system in which they operate. Or it may rely upon theories of human behavior and regulation for example, that lawyers ordinarily exercise self-interest and that legal rules have the sole goal of directing or curbing that self-interest. The image of lawyers that the ethics codes implement as paradigms may be obvious from the terms of particular rules or may simply be predicates or assumptions from which the rules emanate. Some of the code drafters conceptions reflect general assessments of the character of the bar including lawyers motivations for undertaking categories of conduct. Others reflect specific attitudes or self-characterizations that the drafters expect lawyers to adopt, even when doing so will not benefit the lawyers themselves. The following pages outline some of the popular images of lawyers and the consequences for regulation when drafters rely upon them. The analysis is descriptive rather than normative. At this stage, the article simply identifies conceptions of lawyers that exist and that influence the codes, without analyzing whether it is wise for the code drafters to rely upon them.

A. Lawyers as Crooks

One characterization of lawyers that finds its way into many literary and media portrayals is that lawyers routinely are crooked or venal. This image underlies disciplinary rules that forbid dishonest and fraudulent conduct 9 and that require lawyers to report the dishonesty of others. 10 It also is at least one basis for regulation of lawyers handling of client trust accounts 11 and rules requiring confidentiality and loyalty to the client. 12 Code drafters who envision lawyers as dishonest are likely to frame rules in highly specific terms, because specific rules maximize the ability of regulators to punish misconduct and prevent lawyers from rationalizing misconduct. 13 The image of lawyers as anti-social may also encourage the drafters to over-regulate, because it assumes that lawyers will abuse any discretion that they are accorded. The more potential misbehavior that can be identified and forbidden, the easier it will be to weed out bad actors.

B. Lawyers as Legally Honest but Self-interested Individuals

See, e.g., AMER. B. ASSN, MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.2 (2002) (hereinafter Model Rules) (A lawyer shall not . . . assist a client, in conduct that the lawyer knows is criminal or fraudulent); id., Rule 8.4(c) (It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

Id., Rule 8.3 (requiring reporting by a lawyer who knows that another lawyer has committed a violation fo the Rules of Professional Conduct that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer).
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10

Id., Rule 1.15 (imposing rules governing the safekeeping of client funds). There are other possible bases for trust account rules, including simply providing guidance to lawyers and the desire of code drafters to minimize the frequency of suits by clients concerning the handling of funds in the hands of lawyers. Id., Rules 1.6, 1.8(b) (providing for confidentiality), 1.7-1.8 (governing conflicts of interest). In other words, these rules are designed in part to prevent lawyers from using confidential information or conducting business parallel to or adverse to the client to feather their own nests at the clients expense. See Zacharias, supra note 7, at 249 (noting that codes viewed as equivalent to legislation would prescribe or forbid particular conduct, encourage uniform behavior, and set the stage for punishment of persons who depart from the norm).

12

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Some rules that presuppose the likelihood of lawyer conduct which disserves clients do not stem from the sense that lawyers are more prone to dishonest behavior than other members of society. Rather, they assume that lawyers will follow the law, but are self-interested and will implement that self-interest when the law allows them to do so. Thus, for example, code drafters may expect that lawyers ordinarily will not steal from clients, but that lawyers would claim the interest from funds held on behalf of clients when the law regarding their obligations is unclear. 14 Similarly, the drafters might hypothesize that, left to their own devices, lawyers will at least sometimes negotiate forms of fee payment that benefit themselves at their clients expense. 15 How will a code drafter who emphasizes this image differ from one who emphasizes the image of lawyers as dishonest? The drafter may be more prepared to accord lawyers some discretion, particularly when the issues likely to arise do not implicate lawyers personal interests. Thus, for example, this drafter may adopt conflict of interest regulation that forbids lawyers to act on their personal interests 16 but gives the bar leeway to decide when clients may
14

States are divided concerning interest earned from funds held on behalf of clients. Some states require that the interest earned be returned to the client. See., e.g., Oregon Rules of Prof. Conduct, Rule 1.15-1 (a lawyer shall promptly deliver to the client any funds that the client is entitled to receive). Other states require that interest earned be paid to the State Bar or to an organization that provides legal service at no charge. Cal. Bus. & Prof. Code 6212 (interest on the average daily balance in the account, less reasonable service charges, are to be paid to the State Bar); MI Rules of Prof. Conduct, Rule 1.15 (interest, less per check charges, per deposit charges, a fee in lieu of a minimum balance, federal deposit insurance fees, sweep fees and a reasonable administrative or maintenance fee, is to paid at least quarterly to the Michigan State Bar Foundation) 62 P.S. 4023 (Pennsylvania statute requiring interest earned to be paid to organizations operating within the state which provide legal service at no charge.) Yet other states, notably Texas and New York, what attorneys may or must do with respect to interest generated from trust accounts containing client funds.
15

See, e.g., Model Rules, Rule 1.5 (forbidding unreasonable fees); Id., Rule 1.8(d) (forbidding lawyers from negotiating media rights with clients prior to the conclusion of representation).

16

See AMER. B. ASSN, MODEL RULES OF PROFL CONDUCT, Rule 1.7(b)(2) (1983) (forbidding representation when the representation will be adversely affected by the lawyers own interest) (pre-2002 version of the Model Rules hereinafter referred to as Pre-2002 Model Rules).

waive other types of conflicts. Nevertheless, in the main, this drafter will be driven by a sense that the codes need to incorporate protections for clients and for societal interests, because otherwise lawyers will make decisions based on personal incentives. 17 The paradigm is more likely to produce protective rules that are mandatory rather than discretionary. Specificity will be preferred over general provisions that accord lawyers significant choice in their decision making.

C. Lawyers as Honest and Well-meaning, but Needing Guidance Code drafters may have in mind a more generous view of the character of lawyers; namely, that lawyers not only are prepared to follow the law but are also well-meaning persons who want to behave honestly and professionally perhaps even more so than the ordinary layperson. These drafters nevertheless may recognize that lawyers act in a complicated setting, in which they frequently confront interests and loyalties that conflict. Individual practitioners may not automatically understand that a conflict exists, may lack the information necessary to resolve it, or simply may not have the means or capacity to identify the societally-acceptable options on their own. For drafters who think of the bar in these terms, a major function of professional regulation is to provide guidance. This conception helps explain rules that seem redundant that regulate conduct already covered by separate aspects of the codes or other law. Some rules forbidding lawyers to engage in sex with clients, for example, prohibit behavior that conflict of interest rules, fiduciary

See, e.g., Fred C. Zacharias, Coercing Clients, 47 B.C. L. Rev. __ (2006) (discussing lawyers incentives in implementing rules that allow them to counteract client misconduct).

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principles, and negligence standards govern as well. 18 The best justification for such rules is that they serve to advise well-meaning lawyers to avoid particular behavior that they might not otherwise recognize as improper. Code drafters who rely on this image of the bar will have a tendency to include more regulation in the codes than drafters who expect lawyers to determine appropriate or permissible conduct on their own. 19 They may be more inclined to include precatory rules, which they expect lawyers to follow voluntarily rather than because the lawyers expect discipline to ensue upon violative behavior. 20 Because the drafters will err on the side of over-regulation for the purpose of providing guidance, they also may produce codes that lawyers will view as comprehensive; in other words, as legalized codes that set forth everything that is forbidden and that therefore allow all other conduct.

D. Lawyers as Highly Respectable Self-Regulating Professionals The fourth image based on a supposed character of lawyers idealizes the bar: lawyers are
18

See, e.g., Cal. R. Prof. Conduct, Rule 3-120(B)(3) (forbidding a lawyer to represent a client with whom he is having sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110); cf. Model Rules, Rule 1.8 (forbidding specific potential conflicts of interest that might already be covered by the general conflict rules in Model rule 17).

Thus, for example, the drafters might include provisions forbidding discrimination that already is covered by antidiscrimination laws or rules of propriety governing racist language or sexual relationships with clients. See, e.g., Model Rule, Rule 8.4(d) (forbidding conduct that is prejudicial to the administration of justice and noting in the comments that A lawyer who . . . knowingly manifests by words or conduct, bias or prejudice based on race, sex, religion, [etc.] violates paragraph (d) when such actions are prejudicial to the administration of justice) Thus, for example, the recently adopted future harm exception to Californias confidentiality rule makes it clear that lawyers will not be disciplined for any action they take. See, e.g., Cal. R. Prof. Conduct, Rule 3-100(e) (A member who does not reveal information permitted by paragraph (B) does not violate this rule); id., Discussion (A member who reveals information as permitted under this rule is not subject to discipline). Likewise, advertising rules frequently forbid specific types of conduct, but then are barely enforced. See generally Fred C. Zacharias, What Lawyers Do When Nobodys Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 IOWA L. REV. 971 (2002).
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respectable professionals who take their positions seriously, regulate themselves, and ordinarily abide by the letter and spirit of professional obligations. Some aspects of professional regulation clearly assume that lawyers should and will act in a more upstanding fashion than ordinary citizens. Advertising rules traditionally have been based on notions of seemliness. 21 Strict sexwith-client rules expect lawyers to forego lawful activity that others would be entitled to pursue. 22 This conceptualization of lawyers can have several effects on code drafters. First, they may overemphasize the importance of the professional rules in the overall scheme of the regulation of lawyers. The original Model Rules of Professional Conduct expressly urged its own adoption on the basis that self-regulation might avoid the occasion for government regulation. 23 Such a desire may lead the code drafters to adopt rules when it might be preferable to defer to external regulation 24 either because the external regulators are better able to enforce prohibitions 25 or because the presence of a professional rule not fully consistent with the external regulation might confuse or send mixed signals. 26

21

See, e.g., Shapero v. Ky. Bar Assn, 486 U.S. 466, 490 (1988) (OCONNOR, J., dissenting) (it is improper for any member of this profession to regard it as a trade or occupation like any other); see also Fred C. Zacharias, What Direction Should Legal Advertising Regulation Take?, 2005 PROFL LAWY. SYMP. ISSUE __ , __-__ (discussing the underlying rationales for legal advertising rules).

See, e.g., Model Rules, Rule 1.8(j) forbidding sexual relations with a client unless a a consensual sexual relationship existed between them when the client-lawyer relationship commenced).
23

22

Pre-2002 Model Rules, Preamble.

See Zacharias, supra note 3, at 868-69 (predicting more non-bar regulation of lawyers in the future); Fred C. Zacharias, Reform or Professional Responsibility as Usual: Whither the Institutions of Regulation and Discipline, 2003 ILL. L. REV.1505, 1509 (describing the changing role of the states as regulators-in-chief) Fred C. Zacharias, The Humanization of Lawyers, 2003 PROFL LAWY. SYMP. ISSUE 9, 28 (arguing that recognizing lawyers human flaws requires the bar to harmonize its efforts with outside regulation);
26 25

24

Thus, for example, the existence of a professional rule that provides lawyers discretion to act in either of two

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The image of lawyers as voluntarily self-regulating also may affect the substance of the codes. Discretionary rules such as permissive exceptions to attorney-client confidentiality make more sense when the drafters trust lawyers to exercise discretion based on the spirit of the rules. Conversely, over-broad prophylactic rules designed to prevent lawyers efforts to circumvent their obligations, such as flat bans on behavior that sometimes is harmless or even beneficial to clients, 27 seem outof-place.

E. Lawyers as Client Protectors Thus far, each of the images of lawyers described has stemmed from an imagined character of members of the bar. Other images, however, are imposed on lawyers. In other words, code drafters assume that lawyers do (or should) act in accordance with a particular image by virtue of the functions they customarily perform. The most commonly relied upon, and most heartily defended, paradigm lies at the heart of client-centered rules. It envisions a role for lawyers similar to that of champions for the accused in medieval trials by ordeal. The lawyer is seen as the clients one true ally, whom the

directions may mislead lawyers into believing either that no external regulation requires particular conduct or that lawyers are immune from sanction whatever course they adopt. See Zacharias and Green, supra note 1, at 39-41 (discussing judicial rules that limit discretion granted in the codes). Strict conflict of interest rules may, for example, forbid lawyers to accept waivers offered by and beneficial to clients. See Fred C. Zacharias, Waiving Conflicts of Interest, 108 YALE L.J. 407, 416 (1998) (discussing waivers of rules against representation of multiple clients) {hereinafter Zacharias, Waiving Conflicts). Competence rules may unduly constrain the ability of clients to obtain limited representation. See Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay For?, 11 GEO. J. LEGAL ETHICS 915, 923 (discussing limited retainer agreements) [hereinafter Zacharias, Limited Performance Agreements). Rules that forbid certain types of fee payments may prevent clients from obtaining their lawyers of choice. See, e.g., Model Rules, Rule 1.8(d) (forbidding lawyers to obtain media rights related to representation in progress); 1.8(I) (forbidding certain fee arrangements).
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client is entitled to rely upon to act exclusively in the clients interests. 28 For purposes of this article, it is unnecessary to trace the origins or justification for this conception. Suffice it to say that it has been well-documented, 29 and that it lies at the heart of most client-centered protections such as strict attorney-client confidentiality 30 and the duty of loyalty. 31 By its very nature, the paradigm is based on a vision of lawyering that occurs within the adversary system. It emphasizes the adversarial nature of what lawyers must do, sometimes ignoring the reality that some representation takes place in the absence of a contest or an adversarial arbitration process. 32 Thus, code drafters who depend on this conception may allow or require lawyers to act with only minimal regard to third party or societal interests for example in negotiations or facilitating cooperative ventures between clients and third parties. In short, this conception can produce three drafting consequences. It may lead to a code

See MONROE H. FREEDMAN, LAWYERS ETHICS IN AN ADVERSARY SYSTEM 9 (1975) (arguing the lawyer-as-ally paradigm); Ted Schneyer, Moral Philosophys Standard Misconception of Legal Ethics, 1984 WIS. L. REV. 1529, 1543 (discussing certain scholars understanding of the Standard Conception of lawyers ethics and arguing that the Standard Conception is really only one, and never a completely dominant, strand of thought in a vague and sometimes contradictory field) . See, e.g., RICHARD ABEL, AMERICAN LAWYERS 247 (Oxford 1989) (Lawyers are hired guns: they know they are, their clients demand that they be, and the public sees them that way); MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS ETHICS 80 (2nd ed. 2002) (describing the history of client-centered representation); DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY xix-xxi (1988) (positing a standard conception of the lawyers role [that has]been around for a long time and . . . have always informed the ethical ideals of legal practice in the adversary system); Zacharias and Green, supra note 1, at 2-3 (tracing the history of the client-centered approach to representation).
30 29

28

E.g., Model Rules, Rule 1.6 (defining attorney-client confidentiality); see Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 358-61 (discussing the justifications for strict confidentiality). E.g., Model Rules, Rule 1.7 cmt. (emphasizing loyalty to clients).

31

See Fred C. Zacharias, Reconceptualizing Ethical Roles, 65 GEO. WASH. L. REV. 169, 188-189 (1997) (discussing non-adversarial settings of representation).

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that overemphasizes adversariness. 33 By the same token, it may discount values external to the adversary system including the societal benefits of sometimes having lawyers assist in producing objectively fair or appropriate results or resolutions of issues. 34 Finally, it may underestimate lawyers personal interests in acting morally, in a universal sense. 35

F. Lawyers as Independent, Objective Monitors of the System and of Client Behavior The bar as whole likes to think of lawyers as capable of exercising professional judgment independently of client desires and capable of taking moral stands that produce appropriate client behavior. 36 At the simplest level, this accounts for code provisions that authorize lawyers to express moral and political beliefs to clients 37 and to withdraw from representation that is repugnant to them. 38 But it also serves as the justification for rules that purport to protect third party interests or the interests of the legal system and place the responsibility for implementing those rules in lawyers hands. Thus, lawyers may sometimes disclose confidences to protect the
For example, by emphasizing client interests in confidentiality to the exclusion of third-party interests that some observers might deem more important. See Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1327-50 (1995) (discussing ways in which the professional codes allow lawyers to implement a measure of objectivity that lawyers often forget). For a collection of essays discussing what it means for lawyers to be good and lawyers interests in maintaining a sense of personal morality, see DAVID LUBAN, THE GOOD LAWYER (1984). See, e.g., Model Rules, Rules 2.1 (authorizing lawyers to raise moral considerations with clients), 1.16(b)(4) (authorizing lawyers to withdraw when they have a fundamental disagreement with their clients); see also DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHOS IN CHARGE 177 (1966) (referring to the ability lawyers now have to restrain clients from taking immoral, illegal, or simply unfortunate actions); Robert Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 11-30 (1988) (discussing the responsibility of lawyers to exercise moral independence); Zacharias, supra note 34, at 1307-14 (describing the history of regulatory emphasis on lawyer objectivity).
37 36 35 34 33

See, e.g., Model Rules, Rule 2.1 In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors). Id., Rule 1.6(b)(4).

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health and safety of third party interests, 39 have some responsibility for monitoring corporate misconduct, 40 must decline some representation that disserves the interests of former clients, 41 and are expected to decline some tactics in litigation that might help a client win. 42 Code drafters who rely on this conceptualization are likely to favor rules that provide lawyers discretion to implement their own judgment. They also are likely to authorize a broad range of activity, some of which might seem unpalatable in some circumstances, because the drafters expect lawyers to implement the authorization wisely. The rules are less likely to focus on, and protect against, lawyers reliance on personal, venal incentives in ordering their conduct. The image of the independent attorney supplies substantive underpinning for some of the codes most important principles, such as attorney-client confidentiality. Confidentiality has been justified, in part, on the basis that it enables objective attorneys to learn of client misconduct and that the lawyer then will use the information to encourage the client to forego or rectify the misconduct. 43 Likewise, rules that allow lawyers to control litigation tactics assume that lawyers will impose their judgments regarding fair procedure upon clients. 44 Conversely, to the extent the codes adopt an adversarial ethic in criminal cases, that is based in part on the expectation that lawyers who do so serve a function as independent monitors of the justice system.
39

E.g., id., Rule 1.6(b)(1).

40

Id., Rule 1.13(b); see also Zacharias, supra note 17, at __ (discussing rules that anticipate that lawyers will counteract corporate clients misconduct). Id., Rule 1.9(a). Id., Rule 3.3(a). See Zacharias, supra note 30, at 369-70 (discussing the law-compliance rationale).

41

42

43

44

See Pre-2002 Model Rules, Rule 1.2(a) cmt. (a lawyer is not required to . . . employ means simply because a client may wish that a lawyer do so).

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Of course, this image is patently over-broad, arguably even counter-factual. Many lawyers do not exercise independent judgment. Others see their sole function as furthering client desires. Yet others act selfishly. Rules that rely on the paradigm of the independent lawyer thus may expect too much of the bar, at least to the extent that they expect lawyers universally to act in accordance with the paradigm. Moreover, the rules are inherently likely to be in tension with those aspects of the codes that anticipate or require client-centered representation.

G. Lawyers as Ordinary Agents The two previous conceptions envision lawyer behavior based on a role lawyers develop and incorporate as a result of professional training, the services they provide, and deference to a theory of why they are licensed to provide them. It is possible to identify the lawyers role in more legalistic terms. For example, lawyers arguably are just clients agents, in a strictly legal sense, and should act in accordance with common law agency principles. The image of lawyers as agents helps account for many professional rules. Agency law is at least the starting point for attorney-client confidentiality. 45 Other provisions implement agency law directly for example, rules that require lawyers to abide by client decisions regarding objectives 46 and to communicate with clients. 47

See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 6.7.3 at 299 (1986) (discussing the impressive duties of confidence-keeping imposed upon all agents); Steven S. Gensler, Wrongful Discharge For In-House Attorneys? Holding the Line Against Lawyers Self-Interest, 1992 U. ILL. L. REV. 515, 539 (attorney-client confidentiality finds its roots in the law of agency); Michael P. Sheehan, Retaliatory Discharge of In-House Counsel: A Cause of Action Ethical Obligations v. Fiduciary Duties, 45 DEPAUL L. REV. 859, 870 (1996) (The foundation of attorney-client confidentiality is based upon the law of agency). E.g., Model Rules, Rule 1.2(a); see AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF AGENCY 8.09 (T.D. No. 6, 2005) (An agent has a duty to comply with all lawful instructions received from the principal and persons designated by the principal concerning the agents actions on behalf of the principal); Jarnagin v. Terry, 807 S.W.2d 190, 194 (Mo.App.1991) (holding that a lawyer, as an agent, is bound to obey the specific instructions of
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An agency approach may lead the code drafters to avoid hard questions, because the resolution of those questions often is unclear under agency law. This can create ambiguities in the code. 48 Moreover, because agency law focuses primarily on lawyers obligations to the principals and parties with whom the agents and principals deal directly, it is of less use when the interests of unrelated third parties and the legal system itself become implicated. Code drafters who rely on the conception of lawyers as agents thus risk undervaluing the extrinsic interests.

H. Lawyers as Officers of the Court Judges continue to assert the proposition that lawyers have, and take seriously, moral and legal obligations as officers of the court.49 Although this paradigm lost traction in some professional codes, 50 it has resurfaced in the Model Rules. 51 Even in the absence of specific

the principal and to follow them faithfully . . . unless prevented by unavoidable accident or unless the instructions require the doing of an immoral or illegal act). E.g., Model Rules, Rule 1.4; see RESTATEMENT (THIRD) OF AGENCY, supra note 46, 8.11 (T.D. No. 6, 2005) (An agent has a duty to use reasonable effort to provide the principal with facts that the agent knows, has reason to know, or should know when (1) the agent knows or has reason to know that the principal would wish to have the facts; or, subject to any manifestation by the principal, the facts are material to the agents duties to the principal; and (2) the facts can be provided to the principal without violating a duty owed by the agent to another person); Iriart v. Johnson, 411 P.2d 2226, 227-228 (N.M. 1965) (finding that a broker-agent had breached his duty to communicate to his principal all facts within his knowledge ... which might affect his principals rights and interest or influence his action relative to the disposition of the property). Thus, for example, the new version of Model Rule 1.2(a) is ambiguous about whose view controls when lawyer and client disagree about th employment of tactics that may harm third parties. Model Rules, Rule 1.2 cmt.. That is consistent with the ambiguity in agency law that both requires agents to act in accordance with the instructions of principles, but also allows agents sometimes to act in to preserve the superior interests of third parties. See, e.g., AMERICAN LAW INSTITUTE, RESTATEMENT (SECOND) OF AGENCY 395 comment f (1957) (stating that agents are privileged to reveal information confidentially acquired by [them] in the course of [their] agency in the protection of a superior interest of [themselves] or of a third person); Willig v. Gold, 171 P.2d 754, 757 (Cal.App. 1946) (agent is under no duty to keep confidential principals dishonest acts). See Zacharias and Green, supra note 1, at 63-64 (discussing the continued implementation of the officer of the court rationale). The term officer of the court was, for example, omitted from the 1969 Code of Professional Responsibility. Model Code, supra note 2.
50 49 48 47

16

references in the codes to the concept, the image of lawyers as officers of the court accounts for professional rules that require lawyers to obey behavioral principles in litigation 52 and to forego particular tactics. 53 How far the responsibilities of lawyers as officers of the court extend remains an open question. 54 The paradigm is controversial because, almost by its very nature, it is inconsistent (or at least in tension) with the paradigm of lawyers who act primarily out of loyalty to clients. Reliance on this paradigm might produce very different substantive rules than reliance on the alternatives particularly with respect to lawyer involvement in judicial fact-finding and lawyers obligations to litigation adversaries. 55

I. Lawyers as Businesspersons One conceptualization that neither the courts nor the bar like to acknowledge is that lawyers simply are service providers who should be treated like other businesspersons. 56 Under

51

Model Rules, Preamble (referring to a lawyers responsibilities as . . . an officer of the legal system).

52

See, e.g., id. Rules 3.2 (requiring lawyers to make reasonable efforts to expedite litigation), 3.3(a) (requiring candor to the courts); E.g., id., Rule 3.4.

53

For a recent discussion of the meaning and continuing viability of the officer of the court concept, see Zacharias and Green, supra note 1, at 63.
55

54

Thus, for example, the image of lawyers as officers of the court may require lawyers to make disclosures in negotiations that strict application of attorney-client confidentiality rules would forbid. See Virzi v. Grand Trunk Warehouse and Cold Storage Co., 571 F.Supp. 507, 511-13 (E.D. Mich. 1983) (rescinding a settlement reached after a lawyer failed to volunteer the death of his client); see also Zacharias and Green, supra note 1, and authorities cited at 51 nns.285-86, 60-62.

See, e.g., Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229, 1231 (1996) (arguing for a Business Paradigm that would promote respect for the legal system by removing the taint of duplicity resulting from the Professionalism Paradigms assertions of lawyer altruism to a disbelieving public); cf. Norman Bowie, The Law: From a Profession to a Business, 41 VAND. L. REV. 741, 742 (1988) (arguing that it is undesirable for lawyers to

56

17

this paradigm, lawyers cannot be expected to act based upon idealized roles as upstanding citizens, champions for clients, or officers of the court. They usually can be expected to make economically rational decisions. Licensing and regulation may be necessary to protect their clients, ensure compliance with the rules and needs of government agencies (e.g., courts) with whom lawyers deal, facilitate a market for legal services, and rein in particular excesses that society disapproves. As with other service providers, professional rules also may provide guidance peer-approved norms for how the profession as a whole should act in order to preserve its status in the community. Some legal ethics rules clearly are influenced by this conception. Advertising rules 57 and fee regulation, 58 for example, focus on the business of law. They guide lawyers regarding appropriate practice, based on peer standards. The justifications for such rules derive only marginally from fundamental principles concerning the role of lawyers. They are unrelated to ensuring the quality of representation lawyers provide. 59 To a large extent, drafters relying on this image of lawyers will reach similar results to those of drafters relying on the paradigm of lawyers as honest but self-interested individuals. 60 But two main differences are likely. First, these drafters can not make assumptions about the moral outlook of lawyers, and thus may need to rely more on economic predictions. Second, the
behave like traditional business persons).
57

E.g., Model Rules, Rule 7.2-7.3. E.g., id., Rules 1.5, 1.15.

58

For the most part, these rules seek to enhance the image of lawyers and to foster an atmosphere in which clients can trust that lawyers are working in their best interests. But they do not directly behavior that directly affects lawyers competence or willingness to do their best for clients.
60

59

See supra text accompanying note 14.

18

subject matter that will concern the drafters emphasizing this paradigm will be more focused upon business practices what lawyers as free market actors do and should be allowed to do, rather than what abstract rights clients have that someone (e.g., lawyers, judges, prosecutors, and other participants in the legal system) should protect. Thus, one might expect this paradigm to dominate rules that seek to enhance the status or financial well-being of the profession. 61

II. HOW SHOULD CODE DRAFTERS RECONCILE LAWYERS MULTIPLE IMAGES? Here is an interesting phenomenon. Confronted by the varying images described above, almost any reasonable commentator would have the following reactions: (1) each image of lawyers is sometimes accurate, or is accurate in some situations, and (2) none of them always holds true. Yet if one were to suggest to an audience of lawyers and experts in the legal profession that one of the resulting paradigms is false, at least some in the audience would protest. Thus, for example, an assertion that lawyers are not more upstanding than other citizens or act purely based on self-interest would bring the cry that lawyers are, in fact, dutiful officers of the court. 62 The assertion that lawyers are honest or well-meaning would produce scoffs by some in the audience. A claim that lawyers should act independently of clients, on the one hand, or always act as dedicated champions of clients, on the other, would split the room in two. 63
61

That is, for reasons other than simply to foster client trust in order to enhance the long-term quality of legal representation as a whole.
62

See Fred C. Zacharias, Why the Bar Needs Academics and Vice Versa, 40 SAN DIEGO L. REV. 701, 708-09 (2003) (recounting events at a conference in which two judges objected to a realistic assessment of lawyers and lawyers incentives).

Of course, most modern lawyers would agree upon a measure of client-orientation. There continues to be a divide, however, between adherents of an ultra-partisan approach that recognizes almost no limits to client-centered conduct and adherents of an approach that see room for more independence from client demands. See generally Zacharias and Green, supra note 1 (discussing the divide and offering a middle-ground).

63

19

This phenomenon suggests that the profession clings to its images of lawyers even when, deep down, everyone knows that the images are incomplete. Moreover, when serious regulatory issues are on the table whether to adopt confidentiality exceptions, whether to require corporate lawyers to react to corporate misconduct. etc. the conversation often is reduced to unproductive stand-offs between proponents of conflicting paradigms. As a result, the legal profession has experienced long periods during which regulation is largely stagnant (i.e., because one set of proponents has the upper hand) and other moments when a different image of lawyers becomes dominant and produces reform (e.g., lawyers are crooks, as shown by Enron, WorldCom, and the like). Rarely does the code drafting community, in considering particular aspects of regulation, discuss directly whether the paradigm on which the regulation is based holds true. Of course, the recognition that the various images and paradigms all have elements of truth but also are incomplete begs the question. What are lawyers really? How should code drafters think of lawyers in drafting regulation? For the most part, lawyers are ordinary human beings. 64 Most probably are honest, some are crooked, and all are capable of being beguiled by self-interest if the incentives are great enough or when they simply do not think through their actions. Lawyers also are businessmen and probably should be regulated like other businessmen, except that lawyers already are prone to multiple forms of regulation by institutions other than the bar (e.g., regulating courts and the civil liability system) which hold lawyers to a high standard of conduct. These regulators demand both legal conduct by lawyers and conduct that takes into account the interests of clients, the legal system, and third parties. Finally, most lawyers are different from laypersons and other

64

See generally Zacharias, supra note 25 (discussing lawyers as ordinary human beings).

20

businesspersons in that they operate in the context of an adversarial system, in which there often automatically is a conflict of interests between the client and third parties or the government. Viewed fairly, this means that at least some relatively clear and universally accepted definition of the lawyers role is necessary for lawyers to be able to perform the functions society expects of them. What does that mean for professional regulators? Let me suggest three general axioms and a series of more specific drafting postulates. By axioms, I refer to guiding principles. By postulates, I mean factual premises about the state of the world that should guide code drafting. The first axiom, is that code-drafters should acknowledge the limitations of role definition. In other words, some principles of conduct or framework for defining how lawyer should act is inevitable and necessary, in order to provide guidance to lawyers both in situations directly covered by the codes and in others. Thus, to the extent a code is (at least in part) based on essential assumptions underlying the adversary system including the importance of client autonomy and lawyers participation in enhancing client autonomy 65 that remains legitimate and should be spelled out. However, the code drafters should recognize that those assumptions do not define lawyers and are not a description of their character. They simply reflect assigned duties that provide a roadmap for conduct, when applicable. This recognition allows both for the possibility of situations in which the duties do not apply (e.g. in cases involving cooperative ventures rather than adverse litigation or potential litigation) and for other paradigms or duties that should be emphasized in particular situations. The second axiom flows from the first. Because more than one paradigm may exist, code65

See generally FREEDMAN AND SMITH, supra note 29, at 45-69 (discussing the centrality of autonomy considerations).

21

drafters should resist adopting rules that assume counter-factually that lawyers innate belief in an idealized role will control their behavior. 66 Rules that call for a super-human response by lawyers lead to frequent violations, on the one hand, or nonenforcement, on the other. Both results have costs. 67 Moreover, the overemphasis of one paradigm (e.g., the lawyer as the clients champion) typically will necessitate specific rules reflecting other paradigms (e.g., trust account rules) that seem unnecessary, are inconsistent with the initial paradigm, and undermine lawyers understanding of what role truly governs their practice. Expressing and relying upon paradigms in a universal or idealized fashion can lead to precatory rules that are unenforceable and will mislead lawyers into believing that implementing their obligations is discretionary. The third and final axiom is that code drafters should almost never justify rules based upon an untrue paradigm. 68 As I have suggested, each paradigm has consequences for the

The clearest offender in this regard is the ethics codes general mandate that government attorneys serve justice. See generally Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, (1991) (attempting to reconcile prosecutors duty to do justice with the other code requirements and paradigms governing prosecutors). Another example is the conflict of interest rules assumption that lawyers will advise clients forthrightly about whether to waive a conflict, rather than providing advice based on the lawyers own interests in keeping the case. See Zacharias, Waiving Conflicts, supra note 27, at 422 (Perhaps regulators and courts are unwilling to honor client choice because they distrust the motives of the lawyers who advise the clients or distrust the explanations that the lawyers give clients on the merits of waiving conflicts); cf. Zacharias, Limited Performance Agreements, supra note 27, at 946-47 (discussing the tension between the ideal that lawyers act as client fiduciaries and lawyers personal interests at the retainer stage of representation). The costs of expecting too much of lawyers includes public disrespect for the bar when lawyers fail to meet expectations, a lowering of standards by regulators who cannot prosecute all violations, and a sense by lawyers that the rules are unrealistic and therefore need not be obeyed (in this and other respects). The cost of non-enforcement include disrespect on the part of lawyers and the public for the whole regulatory and disciplinary enterprise. That is not to say that the rules may never rely on generalizations, because most law does (e.g., any standard based on reasonableness). I am simply suggesting that the codes ordinarily should not assume that lawyers universally (or usually) act in a particularly way unless they are prepared to enforce that assumption until lawyers are trained to follow it. Establishing an ideal towards which lawyers can aspire is sometimes acceptable, but only if code drafters have considered the harm that might come from asserting that ideal including disrespect cynical lawyers may develop towards the code as a whole and the ramifications of public dissatisfaction when many lawyers patently fail to satisfy the ideal. Compare Zacharias, supra note 24 (questioning the suitability of numerous fictions in the codes)
68 67

66

22

substance and form of regulation. Acknowledging the existence of inconsistent paradigms, by definition, requires one to be careful to limit the effects of each on the drafting of the codes to those areas in which the paradigm is intended to dominate. When drafters overstate, or misstate, a paradigm, it becomes a weapon that proponents and opponents of unrelated rules can use to produce self-serving or poor results. 69 That is the starting point. Code drafters should be honest and realistic. They should concede that not all situations can be regulated on the basis of the same theory, or image, of lawyers. They should both seek to provide meaningful guidance and to acknowledge the limits of what a single code can do. Next come the drafting postulates. Although each contains normative aspects, they largely reflect verifiable factual assumptions about the nature of lawyers, the state of professional regulation, and the likely affect of different drafting orientations. They are designed to avoid the promulgation of regulation in a vacuum, based on unrealistic or counter-factual starting points. First, professional code drafters need to be realistic about external law. They should acknowledge directly that external law governing lawyers exists and has force. 70 It sets baselines

with GEORGE M. COHEN AND SUSAN KONIAK, FOUNDATIONS OF THE LAW AND ETHICS OF LAWYERING 97-99 (2004) (correctly noting limitations in Zachariass position).
69

Thus, for example, a unitary focus on the rationale that the function of lawyers is to enhance the autonomy of clients can justify opposition to virtually every limit on tactics by lawyers or rules that impose obligations on lawyers to protect third-party interests. These type of provisions, at root, are based on the notion that clients autonomy must sometimes be balanced against other values that society might prize more in certain individual cases.

The recently adopted Restatement of the Law Governing Lawyers is a major step in this direction. Restatement, supra note 5. For the first time, academics and other legal professionals interested in regulation of the bar have directly acknowledged the interrelationship between ethics codes and other law. As a result, the multi-state bar examiners now test prospective lawyers on the entire law governing lawyers, not merely the codes. See National Conference of Bar Examiners, The MPRE; 2005 Information Booklet 31-32 (2005) (noting that The law governing conduct of lawyers is based on the disciplinary rules of professional conduct currently articulated in the American Bar Association (ABA) Model Rules of Professional Conduct and the ABA Model Code of Judicial Conduct, as well as on controlling constitutional decision and generally accepted principles established in leading federal and

70

23

for lawyer behavior from which the codes may not encourage divergence. It also establishes limits on lawyers self-serving behavior. Outside regulation takes a variety of forms. Lawyers are subject to criminal law and legislative or administrative regulation to the same extent as other citizens and businesspersons 71 . Thus, the professional code drafters should not assume that any role they prescribe for lawyers immunizes them from accomplice or fraud prosecution 72 or from laws or agency rules requiring candor 73 and other forms of good citizenship. 74 Judicial regulation likewise governs lawyers, both in determining how lawyers must behave in litigation and in fixing other, more amorphous duties for officers of the court. Professional codes not only should incorporate exceptions to its general expectations from
state cases and in procedural and evidentiary rules). As a practical matter, however, the actual bar examination questions still focus predominantly on the professional rules. See, e.g., Fred C. Zacharias, Lawyers as Gatekeepers, 41 SAN DIEGO L. REV. 1387, 1395-96 (2004) (discussing external constraints on lawyer conduct); See, e.g., Bruce A. Green, The Criminal Regulation of Lawyers, 67 FORDHAM L. REV. 327, 330-52 (1998) (describing the application of criminal law to lawyer misconduct); Charles W. Wolfram, Lawyer Crimes: Beyond the Law?, 36 VAL. U. L. REV. 73, 79-91 (2001) (discussing the argument lawyers conduct in representing clients is beyond the law). Lawyers may, for example, assume that discretion to keep silent under attorney-client confidentiality rules protect them from liability for failing to prevent harm to third parties, but that is a proposition with which common law courts and juries may disagree. Cf. RESTATEMENT, supra note 5, 54(1) (A lawyer is not liable under 48 or 49 for any action or inaction the lawyer reasonably believed to be required by law, including a professional rule). For example, in the notorious Kaye, Scholer case, lawyers representing a client before an administrative agency assumed that the advocates role prescribed in the professional codes authorized them to stretch the truth despite regulations that required the client to produce non-misleading information in filings to the agency. The agency promptly sought and collected sanctions against the lawyers. For authorities discussing Kaye, Scholer, see Zacharias, supra note 3, at 855-56 nns.144-46. Legal obligations range from duties imposed on corporate lawyers to monitor client misconduct under the federal Sarbanes-Oxley Act to state laws that require lawyers to report instances of child abuse. See, e.g., Brooke Albrandt, Note, Turning in the Client: Mandatory Child Abuse Reporting Requirements and the Criminal Defense of Battered Women, 81 TEX. L. REV. 655, 657-58 (2002) (categorizing state child abuse reporting statutes); Roger Cramton, et al., Legal and Ethical Duties of Lawyers After Sarbanes-Oxley, 49 VILL. L. REV. 725 (2004) (discussing lawyers obligations under the Sarbanes-Oxley Act and S.E.C. regulations implementing the act); Camile Glasscock Dubose and Cathy O. Morris, The Attorney as Mandatory Reporter, 68 Tex. B.J. 208, 210 (2005) (reviewing child abuse reporting laws and their impact on attorneys) .
74 73 72 71

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lawyers that of necessity defer to judicial regulation, 75 but also should acknowledge directly that judicial regulation ordinarily has substantive force. The consequence of this approach would be to force the drafters to assimilate judicial regulation into their thinking, not simply to acknowledge its existence and dismiss it as reflecting a separate vision of courts that must be dealt with but that is, in essence, wrong. 76 Civil liability is the third main form of external regulation. Fiduciary and competence principles underlie many code provisions (e.g., the conflict of interest rules) but, because of the way they are administered in civil litigation, may establish inconsistent influence on the ways lawyers behave. 77 Professional regulators need to pay more than lip service to how the multiple forms of regulation interact, and should be reconciled. The second postulate calls for code drafters to recognize their relative insignificance in the regulation of lawyers: code drafters should be realistic about the nature of the codes. Arguably, lawyers should never be subject to discipline for violating a professional code unless the code clearly advises lawyers that they may not act in the proscribed manner. Conversely, compliance with ethics provisions probably should only rarely be deemed to immunize lawyers from external oversight. 78 This postulate follows both from the reality that external regulation

Rules like Model Rule 3.3, for example, implement obligations of lawyer to be candid to the court that mimic minimum judicial requirements. Compare Susan P. Koniak, The Law between the Bar and the State, 70 N.C. L. REV. 1389, 1391 (1992) (positing an inconsistent vision of lawyers obligations on the part of courts and the bar) with Zacharias and Green, supra note 1, at 58 (disputing Koniaks analysis). For example, causes of action for negligence and breach of fiduciary duty may allow juries to impose civil liability on lawyers for conduct which the professional codes seem to allow. Green and Zacharias, Lawyer Discretion __ (forthcoming 2006). See Zacharias and Green, supra note 1, at 14 (discussing the argument that courts should defer to code standards in setting civil liability rules).
78 77 76

75

25

can and will control lawyer misconduct in other situations and from the difficulty that arises when one attributes disciplinary functions to rules that are designed in part for non-legislative purposes. The professional codes have multiple functions, including some that often are downplayed such as providing information, facilitating communication among lawyers and between lawyers and courts or clients, enhancing the professions image, and fostering client trust in lawyers. 79 But the practicing bar, fully aware of the existence of external regulation (particularly the possibility of malpractice liability), ordinarily use the codes for two main purposes: obtaining guidance, when in doubt about appropriate conduct; and determining when professional discipline is likely to result from particular behavior. Although code drafters may include some rules hoping that doing so will encourage lawyers to act in a selfless manner, 80 we have already noted that the drafters also recognize that lawyers often can be expected to act in accordance with personal incentives. Mixing the assumptions can only lead to confusion, both for lawyers and disciplinary agencies. The third postulate is this: code drafters should be realistic about the nature of lawyers. The drafters should assume that lawyers, for the most part, enter the profession as businesspersons and ordinarily will act in their own interests unless one of three propositions are satisfied: (1) the market for legal services expects contrary behavior from lawyers and is willing to pay for lawyers who engage in that behavior; (2) external regulation imposes contrary obligations; or (3) the professional code itself imposes enforceable obligations that counteract
79

See Zacharias, supra note 7, at 231-232 discussing the various functions of professional rules.

Thus, for example, the codes allow lawyers to discuss moral issues with clients and sometimes give them discretion to act on third party interests. E.g., Model Rules, Rule 2.1; id., Rule 1.6(b).

80

26

lawyers economic incentives. Thus, before selecting particular rules, code drafter should first gauge the effects of external influences on the bars behavior and then evaluate the likely effectiveness of professional rules, given lawyers natural business inclinations. The final postulate focuses on the perceptions of lawyers and clients. Lawyers may overestimate the importance of bar regulations. Clients tend to be confused about the actual role of lawyers. It therefore is particularly important for code drafters to be clear to define the role of lawyers, and the limits to that role, in a direct rather than oblique fashion. 81 From the perspective of lawyers, the codes need to highlight the limited force of the professional rules. The fact that a lawyer may not be disciplined does not obviate the possibility of other sanctions. The codes should not mislead lawyers into believing that following the codes provide a shield against sanction 82 or a defense against criticism. 83 From clients perspectives, the professional rules often provide baselines for lawyer behavior. 84 Yet sometimes, lawyers use what clients perceive to be the lawyers role to clients

In other words, code drafters should not merely provide for implementation of a role by identifying key components, such as confidentiality and loyalty to clients, but should identify and discuss the nature of that role directly. The codes should state what the lawyers role is, when it applies, what limits exist, and whether and when other potentially conflicting paradigms may control. Lawyers, for example, may read into a codes grant of discretion that any conduct they engage in is authorized and that they are immune from sanction so long as they comply with the discretion-granting rule. See, e.g., Zacharias and Green, supra note 1, at 52-53 (discussing lawyers assumptions and why they may be misplaced); Green and Zacharias, supra note 77, at __ (discussing the effects of discretionary rules). Thus, for example, lawyers often rely publicly on rules requiring strict confidentiality or loyalty to clients as justifications for taking unpopular positions or representing unpopular clients. See, e.g., Daniel R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 9 (1998) (arguing that confidentiality rules shield lawyers from public scrutiny); Charles W. Wolfram, Client Perjury, 50 S. CAL. L. REV.809, 839 (1977) (describing the availability of attorney-client confidentiality as a shield); Zacharias, supra note 30 (discussing the sue of confidentiality rules as a shield for amoral conduct).
84 83 82

81

See, e.g., Zacharias, supra note 34, at 1362-63 (discussing the effect of professional rules on client perceptions).

27

disadvantage. 85 Code drafters should not honor client autonomy in some respects, 86 but fail to advise clients about lawyers actual role in others. Identifying a role lawyers must play to enable the legal system to operate is legitimate, but only if the contours and limits of that role are defined and transparent. In sum, these axioms and postulates together require code drafters to confront existing regulation, the nature of lawyers and clients, and the actual justifications and effects of the professional rules. The practice of assuming the correctness of a rule because of its conformity to a single paradigm, or image, of what lawyers should be is incoherent when multiple paradigms exist. This Article suggests that code drafters need to establish the normative validity of each regulation, including whether the paradigm on which it is based is applicable and likely to be true for the factual scenarios in which the regulation will operate.

III. FAULTY USES OF THE IMAGES OF THE BAR Consider the transcendent image of lawyers in professional responsibility theory: in the adversarial system, lawyers must (1) act as champions for clients in order to counteract inequalities in the representation of adversaries, (2) keep client secrets and act aggressively in clients interests in order to engender client use and trust of lawyers and client cooperation in the
In other words, lawyers may use clients perceptions of how lawyers act to induce trust and reliance upon the lawyer beyond what is actually justified. See Zacharias, supra note 30, at 387 (discussing clients over-reliance on confidentiality). Indeed, some rules seem to approve the actions of lawyer who induce clients to confide information about future wrongdoing for the very purpose of disclosing that information. See, e.g., Cal. R. Profl Conduct, Rule 3-100, Discussion (noting that under certain circumstances, informing a client of the members ability or decision to reveal confidential information . . . would likely increase the risk of death or substantial bodily harm an therefore authorizing the lawyer not to tell the client about his ability to disclose).
86 85

See generally Zacharias, supra note 30, at 393 (discussing the effects of lawyers faulty implementation of strict confidentiality rules on client autonomy); Fred C. Zacharias, Limits on Client Autonomy in Legal Ethics Regulation, 81 B.U. L. REV. 199 (2001) (discussing rules that enhance or limit client autonomy).

28

representation, and (3) enhance clients (particularly unsophisticated clients) autonomy by helping them navigate the legal system and make choices that are assigned to them. 87 Let us accept, for purposes of this article, the basic assumption that it is essential for lawyers to honor and implement this role if the adversarial system is to work in its intended fashion. What does that assumption actually mean for drafting an ethics code? It is important to notice the linkage between the actions expected of lawyers and the reasons for demanding such action. Initially, for example, the justifications for the lawyer-as-ally theory all presuppose the existence of adversarial representation. Yet most modern codes of professional conduct do not differentiate between litigation (or situations in which litigation may reasonably be anticipated) and other representation contexts that may call for more cooperative, 88 judgmental, 89 or independent 90 lawyering. Moreover, the justifications all focus on acts lawyers might engage in for clients that affect litigation directly. While it may make perfect sense, for example, to promise confidentiality to ensure a clients cooperation in a matter and to use aggressive litigation tactics in order to counteract inequalities in representation, the same role may not be necessary or may

87

David Luban calls this the Standard Conception of the lawyers role. LUBAN, supra note 29, at 7; see also Schneyer, supra note 28, at 1551-56 (contesting the Standard Conception). This conception finds its mandate in core ethics rules such as Models Rules 1.2(a), 1.6, 1.7. and 3.1.

In many instances of representation, for example, lawyers for multiple parties work together to reach a mutually desired result and in some instances one lawyer may be charged with performing functions that benefit opposing sides. See, e.g., Greycas v. Proud, 826 F.2d 1560, 1565 (7th Cir. 1987) (holding lawyer liable for failing to conduct a title search promised to an adversary in a real estate transaction). Lawyers representing multiple clients or serving as mediator for two clients may, for example, need to make personal judgments about the merits of the clients claims in order to help them accommodate differences. For example, lawyers for a class often need to exercise independent judgment to a greater degree than lawyers for individual clients, because the class clients are not as readily available to make decisions and the class plaintiff may not have sufficient interest in the issues to care about the choices to be made.
90 89

88

29

even be counter-intuitive in contexts divorced from litigation (e.g., the advice setting, matters involving transactions with the client) or in contexts in which systemic safeguards of the adversary system are not present (e.g., negotiations 91 ). By failing to differentiate among settings or types of representation, 92 code drafters make it difficult to sustain occasional or idiosyncratic decisions to emphasize independent interests for example, the lawyerss personal interest in disclosing confidences in order to defend herself against accusations wrongdoing because those decisions seem inconsistent with the overriding goal. 93 The problem for code drafters is magnified when they themselves recognize that the supposedly governing paradigm should have limits. The lawyer-as-ally role, while justifying confidentiality to a point, may need to give way when certain third-party interests become more important than the need to foster client trust. 94 Aggressive lawyer tactics should be constrained by common sense limits on appropriate behavior, a notion that lies at the heart of judicial regulation of lawyers as officers of the court. 95 In fairness to the code-drafters, it is not really they who have adopted a unitary model of lawyering, except by omitting direct statements to the contrary. The codes never actually state
See, e.g., Scott R. Peppet, Lawyers Bargaining Ethics, Contract, and Collaboration: The End of the Legal Profession and the Beginning of Professional Pluralism, 90 IOWA L. REV. 475, 478 (2005) (arguing for a contractbased model under which the professional rules authorize lawyers and clients to opt in to a more candid regime governing bargaining); Zacharias, supra note 3, at 857 (questioning the applicability of the adversary system model to negotiations). See generally Zacharias, supra note 32 (positing and analyzing the possibility of contextualized professional rules).
93 92 91

Alternatively, to the extent exceptions may reflect the need to balance parallel rights (e.g., that of the lawyer in protecting her reputation or avoiding sanction), the failure to tailor the general rule to its justifications may suggest that no balancing is possible. See, e.g., Zacharias, supra note 30, at 400-03 (discussing the possibility of more nuanced confidentiality rules). See Zacharias and Green, supra note 1, at 63 (discussing modern applications of the officer of the court rationale).

94

95

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any role at all, but rather simply embed notions of the lawyer-as-ally reasoning in core provisions such as confidentiality and conflict of interest rules. 96 As this article itself has pointed out, the codes do contain elements of different paradigms elsewhere. 97 To the extent that the profession views the codes as embodying strict adversarial principles, that stems mostly from the commentary and the practice of the bar that place a gloss on the codes.98 Nevertheless, the drafters have failed in not addressing the issue of role or of multiple images of the bar directly. The drafters tendency has been to recognize limits on partisanship, but to act as if they are aberrational exceptions to the general rule rather than a reflection of other parallel roles lawyers should play. 99 Courts, in contrast, seem readier to acknowledge the existence of professional understandings and secondary norms that impose limits on lawyer behavior or mandatory obligations that may come into conflict with the general role. 100

Perhaps the most illuminating example is Model Rules, Rule 3.1, which purports to authorize lawyers in all settings to make all non-frivolous arguments on behalf of their clients. This mandate led the lawyers in the notorious Kaye, Scholer matter into trouble, because the lawyers failed to perceive the force of administrative agency rules that limited clients and implicitly lawyers acting as the clients agents to providing non-misleading information. The lawyers assumption that the codes adversarial paradigm applied universally cost the lawyers dearly. See supra note 73; see also William H. Simon, The Kaye Scholer Affair: The Lawyers Duty of Candor and the Bars Temptations of Evasion and Apology, 23 L. & SOC. INQUIRY 243, 254 (1998) (If lawyers are rarely obliged to press their clients to volunteer information to adverse parties, that is partly because clients usually do not have duties to volunteer such information.); Zacharias, supra note 34, at 1378 n.252 (The large settlement OTS extracted from the Kaye, Scholer firm has forced all lawyers representing clients in regulated industries to reconsider their role); Fred C. Zacharias, The Restatement and Confidentiality, 46 OKLA. L. REV. 73, 85 (199 ) (The banks choice of a lawyer to represent it in making legally required responses may justify the government in viewing the lawyer more as the banks alter ego than its legal advocate).
97

96

See supra Part I.

See Schneyer, supra note 28, at 1551-56 (arguing that the Standard Conception of aggressive lawyering does not accurately reflect lawyers rights and obligations under the professional rules); Zacharias and Green, supra note 1, at 48 (discussing the gloss placed on the codes by practitioners and commentators). Such exceptions are found, for example, in the disclosure exceptions to attorney-client confidentiality and in the code provisions requiring candor to the courts. E.g., Model Rules, Rule 1.6(b); id., Rule 3.3.
100 99

98

See Zacharias and Green, supra note 1, at 49-50 (discussing the judicial view).

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Presumably, the code drafters hesitance to acknowledge multiple roles or paradigms explicitly is based on a sense that lawyers and clients would become confused or unable to reconcile professional rules that do not all stem from the same underlying theory. 101 This approach falls afoul of this articles three drafting axioms. It inadequately acknowledges the limitations of role definition. It idealizes the single lawyer-as-ally paradigm. And it allows the paradigm to become a weapon that proponents of unrelated rules can use to produce self-serving or poor results. Here is an alternative. It would be easier for clients, and the public as a whole, to understand and accept lawyer behavior if the various roles and limits of those roles were made explicit in the codes and explained at the outset of representation. 102 Consider, for example, the following propositions: 1. Lawyers ordinarily are allied with their clients and will do their best to further their clients interests; 2. Lawyers will not violate the law or participate in illegal, tortious, or fraudulent acts; 3. Lawyers do have obligations to the courts, particularly an obligation of candor and to expedite litigation; 4. In extreme situations, lawyers have some obligations to protect the interests of adversaries and third parties; 5. Lawyers have their own financial interests in the representation, so clients should understand that in fee negotiations and other discussions involving lawyers financial matters that lawyers may (even unintentionally) emphasize their own interests.
101

See Zacharias, supra note 3, at 831 n.6 (When the drafters of the first model codes undertook their tasks, they needed to identify a general ethic that lawyers could understand and follow); cf. COHEN AND KONIAK, supra note 68, at 98 (suggesting self-interested justifications for the reliance on uniformity in the codes).

See, e.g., Lee A. Pizzimenti, The Lawyers Duty to Warn Clients About Limits on Confidentiality, 39 CATH. U. L. REV. 441, 443 (1990) (active deception, or even negligent failure to provide sufficient information to assure informed consent, raises serious issues at the heart of the attorney-client relationship: Zacharias, supra note 34, at 1357-62 (discussing the importance of pre-representation discussions with clients).

102

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Although the codes already embody these propositions, they do not make most of the points contained in them clearly, nor are they typically discussed with clients. Thus, clients tend to receive an overstated message about the lawyers sense of alliance and are disappointed when lawyers honor their other obligations for example, in providing information in discovery that the client presumed confidential or responding honestly to a judicial inquiry in a way that seems adverse. Emphasizing and linking these propositions in the codes and therefore forcing lawyers to make them clear to clients up front would have several beneficial effects. First, it would enhance clients ability to understand and handle those transactions with lawyers that, essentially, are arms-length in nature for example fee negotiations, changes in fee arrangements, transactions with the lawyer, and (to some extent) conflict waivers. When a lawyer is obligated to provide clients information, for example in eliciting a conflict waiver, a proper understanding of the lawyers actual role (i.e., here, the lawyer may be acting more in his own interest than in the clients) would facilitate the clients ability to receive the information independently and to exercise the autonomous decisionmaking anticipated by the rules. Second, providing a balanced description of the lawyers role or acknowledging multiple roles would help clients understand that there are limits to confidentiality and advocacy. That, of course, is a two-edged sword. Critics of this articles proposal no doubt would object that potential clients, particularly unsophisticated clients, already mistrust lawyers and that advising them that lawyers will not always act in their interests will prevent the clients from trusting and relying upon counsel. 103
103

See, e.g., FREEDMAN AND SMITH, supra note 29, at 162 (:The lawyer who gives a Miranda warning [to the client]

33

As a practical matter, however, this claim is a red herring. Mistrust on the part of incipient clients already exists. In part, it stems from the fact that lawyers in the past have seemed to turn on their clients by the very process of honoring the obligations about which I encourage advice. In fact, clients can understand and accept that lawyering has limits, as long as the clients are told the nature of those limits in advance. 104 Lawyers provide clients the ability to make autonomous decisions, but also often impose on clients the obligation to do so. 105 This autonomy should extend to the way clients wish to use their attorneys, an autonomy that cannot be exercised without full knowledge about lawyers multiple roles. This suggests the third way in which providing a balanced description can assist clients. It avoids conflicts, because it helps clients use their lawyers for purposes lawyers can serve in good conscience. The strongest proponents of the lawyer-as-ally paradigm are correct that clients might confide less if they believe disclosure is possible, but that may be reasonable behavior and it is certainly behavior that corporations and sophisticated clients engage in each day, sometimes at the urging of lawyers themselves. 106 In the long run, an informed autonomy properly assigns the evaluation of the risk of withholding information to the clients themselves. And it allows future clients to view lawyers, more realistically, not simply as hired guns, but as

is not the clients champion against a hostile world; on the contrary, she presents herself at the outset as an agent of that hostile world); cf. CAL. R. PROFL CONDUCT, Rule 3-100(c)(2) (2005) (seemingly allowing a lawyer to withhold from a client information regarding the lawyers ability to reveal confidential information until it is reasonable under the circumstances , . . at an appropriate time).
104

See Zacharias, supra note 34, at 1357-58 (arguing that lawyers should advise clients about the limits to partisanship).

105

In other words, lawyers often make clients make difficult decisions whether to settle, whether to take particular positions because the lawyers do not want to assume ultimate responsibility for the decisions. See, e.g., KENNETH MANN, DEFENDING WHITE COLLAR CRIME 103, 120-24 (1985) (describing forms of advice given to clients by white collar defense attorneys).

106

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moral individuals who deserve trust to the extent that the investiture of trust itself is reasonable. Why not make the codes explicit? One could easily identify an advocates role, but limit that role to specified categories of adversarial representation. 107 Within the advocacy setting, codes could then clearly note what limits on partisanship exist, be they obligations imposed (e.g., by external constraints) on lawyers as ordinary citizens or lawyers as officers of the court. And the codes also could identify those situations in which lawyers own interests potentially clash with those of the clients, in which lawyers should give clients advice to seek independent counsel and clients should take that advice seriously. Framing the lawyers role in this limited way would permit the codes then to address non-adversarial settings and to acknowledge lawyers secondary roles and the legitimacy of independent or objective lawyering in a way that clients can accept and, potentially, act upon. The advice of lawyers representing regulated clients would be different, for example, if code drafters ultimately perceive an obligation of lawyers to provide objective analyses of what regulation requires rather than (or in addition to) an obligation to advise clients only on how best to circumvent regulation. Compare, for example, administration regulations governing tax lawyers and tax clients. Under prevailing IRS rules, individual taxpayers unrepresented by lawyers may take all positions that have a reasonable basis on their returns. 108 If the IRS rejects the position, the taxpayers ordinarily are subject to taxation and interest, but not fines or penalties. 109 On the other
107

As the following paragraphs suggest, one can limit the advocates role without changing the essence of attorneyclient confidentiality. Therefore, the argument that clients could not trust lawyers who act in a less partisan way than trial lawyers is an insufficient response to the notion that lawyers roles should vary.
108

INTERNAL REV. CODE 6662; Treas. Reg. 6662-3(b)(1). Id. (imposing penalties for negligence, substantial understatement, or disregard of the regulations).

109

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hand, if a taxpayer hires a lawyer to file the return, the lawyer may only take positions that have a realistic possibility of success, which the IRS defines as a one-third chance of success in litigation, 110 at pain of personal penalty. 111 The option is for the taxpayer to disclose that he is taking a non-frivolous position that does not have a realistic possibility of success, in which case the lawyer is insulated from penalties but probably will encourage an audit. Since few attorneys will risk personal fines or potential suspension simply in order to serve their clients, the upshot of this regime is that, effectively, unrepresented taxpayers can take more questionable positions before the IRS than those who are represented by attorneys. Some observers view this dichotomy as anomalous, and as imposing unwarranted disincentives to the use of lawyers. 112 The IRS approach, however, makes perfect sense if, in practice, the IRS defers more to returns filed by lawyers. When the IRS can rely on lawyers to exercise some objectivity in selecting positions, the IRS essentially can give individuals a choice: (1) use lawyers, forfeit some ability to assert frivolous positions, and obtain preferential treatment or (2) retain the ability to make far-fetched claims and take a full risk of being audited. Clients are certainly not disserved, any more than they would be by a flat rule that all filers must limit themselves to positions that have a realistic possibility of success. Instead, their autonomy is enhanced. Not surprisingly, however, the bars response to the IRS approach has been colored by the bars partisan understanding of the professional codes. The ABA essentially has rejected the
110

Treas. Reg. 1.6664-2(c). INTERNAL REV. CODE 6694(b).

111

112

E.g., Camilla E. Watson, Tax Compliance: Should Congress Reform the 1988 Reform Act, 51 KAN. L. REV. 1197 (2003); Andrew Travis, Disclosure of Material Facts in Tax Opinions: The Tax Lawyers Statutory Conflict of Interest (2005) (unpublished student paper, on file with the author).

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IRS rules. In a 1985 opinion, the ABA Committee on Ethics and Professional Responsibility defiantly issued an opinion stating that a lawyer may advise the taxpayer to report a position on a return even where the lawyer believes the position probably will not prevail, there is no substantial authority in support of the position, and there will be no disclosure of the position in the return. 113 The fallacy of the ABA position, of course, is the assumption that the lawyers role must be viewed as unitary that the lawyer-as-ally theory governs all representation and that lawyers never should be assigned a position of objectivity. The assumption simply is counter-tofact. As this article has suggested, the ABA position is a consequence of, and made possible by, code drafting that idealizes the lawyer-as-ally image. In an interesting article, Richard Painter has suggested other scenarios in which clients may benefit from assigning lawyers appearing before certain administrative agencies lesspartisan functions. The work of regulators is facilitated when they can assume lawyers act in particular ways. 114 Clients may prefer to engage lawyers who have earned an extra measure of regulatory trust or, in contrast, some may prefer to lawyers who will take the most partisan approach possible. 115 Without evaluating the merits of Painters approach here, this article does agree in one respect. The model of ultra-partisanship is not self-justifying. Code drafters, like administrative regulators, are capable of assigning different roles for different contexts, just as
113

ABA Committee on Ethics and Professional Responsibility, Formal Op. 85-352 (1985). The ABA Section of Taxation addressed the dilemmas this creates for lawyer conduct in Standard of Tax Practice, Statement 2000-1, 54 TAX LAW. 185 (2000).

See Richard W. Painter, Game Theoretic and Contractarian Paradigms in the Uneasy Relationship Between Regulators and Regulatory Lawyers, 65 FORDHAM L. REV. 149, 150 (1996) (because lawyers representing agencies and lawyers representing firms play the regulatory game with each other on a frequent basis and have opportunities to bargain, cooperative play between them can create substantial benefits for both).
115

114

Id., at 170 (If the majority of a lawyers clients seek cooperative play with [an agency], the lawyer thus will probably choose to cooperate consistently with the agency. Other clients will probably have to conform to this cooperative strategy or look elsewhere for counsel).

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they are capable of giving clients a choice. But the variable approach only is plausible if the codes become more honest about the existence of multiple paradigms than they historically have been. What the IRS and Painters examples suggest is that the current codes are deficient in many of the respects suggested by this articles drafting postulates. First, they fail to acknowledge the possibility that external regulation, including administrative regulations, may demand special conduct of lawyers that diverges from the codes principles. Second, they give comfort to lawyers like the drafters of the ABA opinion who believe that such administrative regulations are illegitimate. Third, they ignore the reality that lawyers as well as clients will shape their conduct particularly where conflicting mandates or discretionary authority exists to maximize their own economic incentives. As a final gauge of this articles analysis, let us consider a few of the discretionary rules that most professional codes contain. 116 The codes, for example, allow lawyers to disclose certain client confidences to protect the safety of third parties, 117 to refrain from introducing evidence they believe but do not know to be false, 118 and (at least to some degree) to control tactics in litigation. 119 The codes do not tell lawyers how to behave in situations implicated by the discretionary rules, though some observers might believe that particular conduct sometimes is required 120 or that, at a minimum, lawyers must exercise their discretion in accordance with

116

These are discussed more fully in Green and Zacharias, supra note 77, at __. E.g., Model Rules, Rule 1.6(b)(1)-(3) E.g., Model Rules, Rule 3.3(a)(3). E.g., Model Rules, Rule 1.2 cmt..

117

118

119

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the spirit of the rules. 121 At the very outset, it seems clear that such rules violate this articles second axiom that the drafters should resist rules that assume counter-factually that lawyers innate belief in an idealized role will control their behavior. 122 The codes simply are not sufficiently clear about what role should govern the decisions to be made under the discretionary rules. A lawyer operating under the lawyer-as-ally paradigm might act one way, while a lawyer holding to the image of lawyers as respectable, self-regulating professions might exercise discretion in a different way. Moreover, the different paradigms of lawyers contained in the codes would call for different types of rules, or interpretations of discretionary rules, governing the conduct in question. If lawyers are conceptualized as ordinary businessmen, they can be expected to exercise discretion, say, to disclose a clients confidences by trading their right to disclose for a higher fee. 123 Lawyers who are conceptualized as crooks can, at least sometimes, be expected to conspire with their clients. 124 Professional and self-regulating lawyers may exercise discretion in a manner that furthers the goals of the grant of discretion.

120

Some observers may, for example, believe that a lawyer sometimes must act to save a third partys life when there are no alternatives even if the professional rules make the disclosure of confidences in order to do so discretionary. See Green and Zacharias, supra note 77, at _(discussing discretion in professional codes). E.g., Zacharias and Green, supra note 1, at 54-56; Samuel J. Levine, Taking Ethical Discretion Seriously: Ethical Deliberation as Ethical Obligation, 37 IND. L. REV. 21, 46 (2003). See supra text accompanying note 67. See Zacharias, supra note 17, at __ (discussing whether lawyers may sell their right to disclose).

121

122

123

124

Cf., e.g., David McGowan, Why not Try the Carrot? A Modest Proposal to Grant Immunity to Lawyers Who Disclose Client Financial Misconduct, 92 CAL. L. REV. 1825, 1828 (2004) (discussing lawyers incentives to conspire with clients, when acting as rational actors); Zacharias, supra note 17, at __ (discussing when lawyers might help clients pursue unlawful ends).

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The point is that each image of lawyers would call for a different regulatory approach. This articles drafting postulates suggest that, depending on the drafters goals and the image or images that most influence the drafters, the drafters may need to guide the first of kind of lawyer by constraining the exercise of discretion or to control the second kind of lawyer with direct commands, but might grant unfettered discretion to the third kind of lawyer. In the end, there are a variety of reasons for code-drafters sometimes to accord lawyers discretion. But in light of the variety of roles lawyers play, the drafters cannot properly assume that lawyers routinely will exercise discretion with a view to the underlying values the discretionary provisions are designed to further. The current codes failure to define the governing role distinctly causes the grants of unfettered discretion to violate the third drafting axiom they rely on the untrue paradigm that lawyers always will act in a selfless manner as well as varying postulates that call upon the drafters to evaluate lawyers incentives and the effects of the market and external regulation. Only by being more direct about how they expect lawyers to behave can the drafters hope to produce the results they desire.

IV. CONCLUSIONS The reality that the world sees lawyers in a variety of ways, in one sense, is not surprising. The conflict between the publics negative view dating back to Shakespeares call to kill all the lawyers and the publics need and desire for strong advocates is obvious and has been well documented. 125 Scholars have long noted the internal tension within the

125

See generally Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 379 CALIF. L. REV. 379 (1987) (analyzing the tension).

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professional codes 126 that is attributable, in part, to code drafters emphases on the various images. Nevertheless, the fact that the images actually have produced multiple co-existing paradigms probably would surprise many observers. Modern professional responsibility scholarship has fostered fierce battles over thesingle proper role governing the bar. 127 Code drafters have implemented multiple conceptions of lawyers in practice, but have never overtly embraced the theory that regulation should be contextualized. By making explicit some of the distinct images that accurately reflect aspects of lawyers characters and practices, this article has attempted to shed light on why so much of professional regulation seems to rest on fictions or counter-factual assumptions. 128 If code drafters and proponents and opponents of reform come to understand, and confront, the multiple paradigms, they can avoid the obsessive theoretical arguments that have characterized much of the modern debates on professional responsibility issues. More honest and realistic assessment of issues in context can only serve to produce more effective, enforceable, and socially acceptable rules.

126

See, e.g., Schneyer, supra note 28, at 1361-62 (noting the codes authorization of both client centered and objective lawyering); Zacharias, supra note 34, at 1327-48 (discussing the role objectivity plays in the codes regime).

127

See Zacharias and Green, supra note 1, at 2-3 (describing the intellectual contest between adherents of the Brougham and Hoffman approaches to advocacy). See generally Zacharias, supra note 3.

128

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