Thursday, December 11, 2008

Bill Hodes Sends An Email About Lawyer Ethics

Bill Hodes, former clerk to Justice Ruth Bader Ginsburg, a co-author of The Law of Lawyering, and colleague of mine in the Association of Professional Responsibility Lawyers, gave me permission to post this slightly revised email, which he recently posted to the APRL Listserv:

Is our concern about the conduct of lawyers more properly thought of as a matter of ethics or a matter of morals?

I have always thought that many commentators have it exactly backwards as
concerns the terminology to be used-while agreeing that terminology matters.
Consider these four sentences, each of which I believe to be correct.

1. In the 1950s and 60s, before the Supreme Court decided the Bates case,
it was almost universally accepted that lawyer advertising was unethical.

2. In the 1950s and 60s, before the Supreme Court decided the Bates case,
virtually no one thought that lawyer advertising was immoral.

3. Virtually all lawyers agree that it is perfectly ethical to secure the
acquittal of a defendant who is known (to the lawyer) to be factually
guilty, by employing technical and tactical moves that do not involve lying.

4. Many lawyers have moral qualms about securing the acquittal of a
defendant under the above circumstances.

To me, this means that the term "ethical" is best understood as "comporting
with professional ethics norms," whether in law or journalism or the
profession of arms. The term "moral," on the other hand, applies to human
conduct generally, and asks whether the conduct is "right" or "wrong,"
according to some coherent system of distungioshing between the two. (And I
am not a moral relativist; some moral schemes are so deeply flawed as to be
immoral themselves.)

It wouldn't bother me to add the reminder-often or even always-that when we
are speaking of "ethics," we are speaking of "professional" ethics. And I
do not tarry long on the enforceability issue either. In my view, the ABA
Model Rules are not "law," and not enforceable as such, but when the highest
court in a jurisdiction adopts a Code or a set of Rules along the same
lines, those are the law of the jurisdiction, and they are enforceable if
the REQUISITE "shall or shall not" language is present. Rules of morality,
on the other hand, are enforced only by peer pressure, community shaming,
and-most of all, I hope-by the drive for self-respect. (Along the same
lines, the Restatement of the Law Governing Lawyers is not "the law" either,
but many of its tenets are adopted as the common law of many jurisdictions,
in which case they become enforceable in the courts of those jurisdictions.)

I think we can and must teach the content of the rules of professional
ethics to young lawyers, and also the common law and fiduciary principles
that will govern their lives as lawyers. Moral values can be inculcated,
perhaps, but not taught, other than by example and seriousness of purpose.
But I agree most of all that all lawyers should conduct themselves in accord
with the ethics of our profession, because that is the right thing to do!

Bill Hodes

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit


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