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On Analyzing The Law of Legal Ethics: An American Perspective

Published online by Cambridge University Press:  12 February 2016

L. Ray Patterson
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Extract

My purpose in this paper is to present some propositions relevant to the analysis of legal ethical problems. In working my way to those propositions, however, I shall first discuss the need for them and explain why I deem them to be important.

My basic thesis is that historically the profession's codes of ethics constituted a jurisprudential anomaly with two unfortunate consequences. First, they had an undesirable effect on the conduct of lawyers in the representation of their clients. Second, and more importantly, they served to impede the development of a satisfactory law of legal ethics.

The first proposition is more difficult to establish than the second and I do not propose to dwell on it. But, if you accept the notion that lawyers have used their duty of loyalty to the client to arrogate to themselves the power of acting in accordance with the client's wishes regardless of the consequences to society or to others, I think you will agree with the point. This is not to say that lawyers always exercise that power, and few lawyers, I think, take seriously Lord Brougham's infamous dictum that an advocate “must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other” in defense of his client. But the fact that the dictum lives on tells us something about the lawyer's perception of his duty of loyalty. Ultimately, I suppose, the notion of the lawyer's duty of loyalty to the client must be attributed to the common law adversary system of trial, but the duty received its most fulsome expression in the profession's code of ethics. Courts never gave loyalty the imprimatur of approval that the profession stamped on it with the rules of ethics.

Type
Symposium on Legal Ethics
Information
Israel Law Review , Volume 16 , Issue 1 , January 1981 , pp. 28 - 39
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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References

1 ABA Model Code of Professional Responsibility, Preliminary Statement (1980).

2 The Florida Bar v. Neale, 384 So. 2d 1264, 1265 (Fla., 1980).

3 Bickel v. Mackie, 447 F. Supp. 1376 (N.D. Iowa, 1978).

4 Lyddon v. Shaw, 56 Ill, App. 3d 815, 372 N.E. 2d 685, 691 (1978).

5 Drinker, H., Legal Ethics (1963) 26.Google Scholar

6 Sharswood, , Essay on Professional Ethics (5th ed., 1884) 78–80.Google Scholar

7 Schudson, , “Public, Private and Professional Lives: The Correspondence of David Dudley Field and Samuel Bowles,” (1977) 21 Am. J. Leg. Hist. 191, 193.CrossRefGoogle Scholar

8 State v. Alvey, 215 Kan. 460, 524 P. 2d 747 (1974).

9 Dorey v. Dorey, 609 F. 2d 1128 (5th Cir. 1980).

10 608 F. 2d 1143 (8th Cir. 1979).

11 Musicus v. Westinghouse Elec. Corp., 621 F, 2d 742 (5th Cir. 1980).

12 Stare v. Tate, 21 Cal. App. 3d 432, 98 Cal. Rptr. 264 (1971).

13 Roberts v. Sears, Roebuck & Co., 573 F. 2d 976 (7th Cir. 1978).

14 Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J. Super. 112, 350 A. 2d 279 (1975).

15 Slater v. KFC Corporation, 621 F. 2d 932, 936 (8th Cir. 1980).