WHY LAWYERS BEHAVE AS THEY DO by Paul G. Haskell. Boulder: Westview Press, 1998. 120 pp. Cloth $45.00. Paper $18.00. ISBN 0-8133-6897-9.
Reviewed by Lawrence E. Rothstein, Department of Political Science &
John Hazen White, Sr. Center for Ethics and Public Service, University
of Rhode Island. Email: mxi101@uriacc.uri.edu.
Ten years ago Professor Haskell began teaching professional ethics. His reading, teaching and analysis drove him to the conclusion that much of what lawyers do is neither morally defensible nor necessary for the proper functioning of an adversary legal system. In this book he argues for interpreting and/or changing the rules of professional responsibility to reflect the maxim that "the duty owed to the client [is] limited to what the client [is] entitled to under the law applicable to the representation."(105)
Haskell begins by attempting to illustrate the immorality of lawyers' behavior with 23 anecdotes covering means of representation such as attempting to discredit truthful witnesses or correct scientific evidence, failing to probe to uncover a client's untruthfulness, using dilatory tactics, pleading the statute of limitations, lying in negotiations, using false identities and deception to trap a wrongdoer as well as using proper means for promoting or defending a client's morally questionable activities, e.g. defending the guilty client or Nazis preaching genocide, negotiating contracts for TV trash or commercial gambling. Haskell argues that all of these are permissible under the rules of professional responsibility, by which he means the Model Rules and commentary.
Unfortunately, this short book is woefully short on clarity, coherence, systematic argument and evidence. I say this as part of the choir who agrees that much of what lawyers do under the rules is morally wrong. In the first place, the 23 anecdotes, begun with little preparation for the reader as to the point of their introduction, are confusing. While they all raise some moral questions, many do so very ambiguously. An example of this is his anecdote about answering a client's question concerning the legal definition of mental capacity for will making before pinning down the client's story about the will. Others could be and have been prevented by at least some interpretations of the rules, e.g. the gross exaggeration of the severity of a client's emotional distress in settlement negotiations.
Most importantly Haskell's maxim noted above cannot answer the questions he has raised. It is essentially circular. What the client is entitled to under the law IS what the client gets when the proceedings have gone according to a reasonable and authoritative interpretation of the law, including the rules of procedure and of professional conduct. We are still left with the problem of determining the morality of the law, the rules and the practices. Haskell assumes that we all accept his judgments, without much argument in their favor, on what practices and client objectives are morally wrong. (And I do share many of them.) Yet, he assumes without any argument that the "Anglo-American system of freedom under law is the finest form of governance in human history" and that it "includes a system of fundamentally just substantive and procedural principles for the resolution of disputes between individuals and between individuals and the state."
This underlying contradiction between his general view of the adversary
legal system and the specific rules and procedures that are its foundation
rob his arguments of clarity and coherence and cause him to ignore basic
problems of the American legal system: inequality of resources and access
to high quality legal services; the training and tendency of lawyers to
create indeterminacy in any set of rules, including those governing professional
conduct, by interpreting them as advocates in their clients' or their own
favor; and the lack of resources for, and limited commitment to, the enforcement
of the existing rules by disciplinary agencies made up of brother and sister
lawyers. These problems and others have been taken up much more thoroughly
by writers such as David Luban, cited in the Haskell volume, David Wilkins,
and Deborah Rhode (the latter two not cited at all). While Haskell mentions
the possibility that lawyers' representation in criminal and civil proceedings
might be judged by different standards, there is no sophistication in his
analysis. He certainly has not considered Luban's and Wilkins' views that
the rules of professional conduct might differ across many different kinds
of clients and subject matters. This slim volume ends up by assailing the
"hired gun" mentality, advertising, commercialism and "hardball tactics"
among lawyers that the author sees as the causes? symptoms? of the loss
of "civility, courtesy, and decency" (105) in the legal profession. There
are no recommendations as to what is to be done except to judge lawyers'
conduct according to a "justice" theory of representation expressed in
the inadequate maxim noted in the first paragraph. Even the
final analyses of the problems raised in the 23 anecdotes do not clarify
the issues or provide adequate guideposts for resolution. In the process
there is little attention paid to data on lawyers' conduct, to actual disciplinary
proceedings, to both the beneficial and detrimental effects of discovery
practice or to the distinction between confidentiality rules and attorney-client
privilege. While several moral philosophers are cited, there is little
explanation of their views or systematic application of their moral analyses
to the rules or practices in question.
My criticisms of this book might be taken as arguments against its appropriateness
for an audience of those already initiated into the ethical debates over
legal practice and the adversary system. That is as intended. Unfortunately,
the lack of clarity and the unsystematic presentation of arguments also
make it inappropriate for the layperson or the professional uninitiated
in the ethical debates.
Rhode, Deborah L. 1994. "The Future of the Legal Profession: Institutionalizing Ethics," CASE WESTERN RESERVE LAW REVIEW 44:665-736.
Wilkins, David B. 1992. "Who Should Regulate Lawyers?" HARVARD. LAW REVIEW 105:801-887.
Wilkins, David B., 1990. "Legal Realism for Lawyers," ?" HARVARD. LAW REVIEW 104:469-524.