A New Year's Resolution for Lawyers

A New Year's Resolution for Lawyers
The New York Law Journal by Joel Cohen and Katherine A. Helm - January 4, 2010

This is a week for New Year's resolutions, generally a time for one to accept certain responsibilities hitherto ignored. And yet we seem hardwired not to. When Cain uttered his famously contemptuous remark -- "Am I my brother's keeper?" -- he became the paradigmatic evader of responsibility. With his brother dead or still lying in extremis at the side of the road, Cain tersely stated his worldview that everyone needs to simply look out for oneself. All but the most heretical attorneys would decry Cain's wholesale abandoning of any accountability for Abel's death. True, personal responsibility is crucial to the rule of law. But beyond that, has the legal profession adequately rejected Cain's credo that we need only save ourselves? Think about the lawyers, whom each of us can easily call to mind, whose conduct appears to be "on the edge" but who we nonetheless largely ignore. Should questions arise about our own conduct, precisely because of such willingness to let our colleagues' behavior go unchecked? The longer we avoid such questions, the more we place at risk our collective professional reputation. While none of us is perfect, some lawyers have behaved far worse than others lately. Daily, it seems, we read about some lawyer defrauding a client, another conspiring to commit securities fraud or insider trading on client information, still another willing to compromise witnesses, and on goes the parade of horribles. Statutes enacted to prosecute the Mafia are now being applied to practicing attorneys; law firms are actually being named as "racketeering enterprises." The generic lawyer's fall from grace has not been as salacious as that of Tiger Woods, but it still is ugly. A prosecutor might be heard to publicly admonish a lawyer, reminding him that his license to practice law is "not a license to commit crimes." Or the SEC, announcing insider trading cases against lawyers might, colorfully, publicly condemn them this way: "If you find yourself chewing the memory card in your cell phone to destroy any record of your misconduct, something has gone terribly wrong ...."

Confronted by these challenges, we practitioners tend to do what we do by nature and training: Get our backs up against the wall and defend our turf. We promptly separate the good guys from the bad guys; the "us" from "them." Only moral pedants quibble over the dividing line. Law firms admit no liability and dismiss the "bad apples" as aberrational actors. Those who did the deed will do the time and the law-abiding lawyers will continue to serve their clients. It seems a bit Micawber-like, at best, to assume that things like ethical practice and proper managerial skills are innate talents of the "good" lawyers. One doesn't learn to think morally and critically without practice. Think of where we would be as a profession if practicing attorneys abandoned their legal ethics as quickly as most people abandon New Year's resolutions. By sweeping "bad" lawyers under the rug, without study and self-reflection on their flubs, we can only hold our breath until the next mishap. Lawyer misconduct is neither a new nor passing trend. Before Marc Dreier's massive fraud, countless others dipped into escrow accounts, and for every big story -- like Dickie Scruggs bribing a judge in Mississippi and Edward Fagan misappropriating funds from his Holocaust victim clients -- a bevy of small, unremarkable cases of attorney disbarment go largely unnoticed. Faced with these vast ethical and legal lapses, what did our "best practices," our model rules of professional conduct and other aspirational standards do to guide attorney conduct? The cynic might say they are good for a little lip service and CLE credit, and maybe some hearty ethical debates, but when blatant criminal conduct is involved, it's every lawyer for himself. This sounds like a play from Cain's rule book -- casting aside our brethren. The legal pragmatist would indeed tell upstanding attorneys to distance themselves from the lone "black sheep" of the profession. If the trappings of our lawyerly existence mandate that we principally limit our own liability, do we kid ourselves by even considering an obligation to look out for our own? Being our "brother's keeper" in that sense may seem anathema to the notion of individual responsibility. But we lawyers hold ourselves out as professionals and so we must help hold other members to a standard. Otherwise, how effete are our professional conduct rules in imbuing us with principles of taking responsibility for the acts of another, and to maintain the integrity of the profession? Does it not seem like cheating if we just kick the bad actors out of the profession? The black sheep of the family is still family, after all.

If we truly believe that we have a collective responsibility to repair the profession's name, we need to personalize it and work at it daily, so that we can avoid these elegiac laments after the damage is done. We need to be better friends to our fellow workers before it hits the fan. If we open our eyes, we might see someone wavering, which should remind us that most people want to be saved. We need to be perceptive, whether in the courtroom, the law office or the after-work hangout and recognize that a confrere may require a sounding board to stay grounded. We may see constancy in other lawyers' corner-cutting behavior -- perhaps in how they take liberties with the truth to judges or opposing counsel; how they prepare witnesses (to elicit questionable testimony); how they "loosely" obtain retainers and maintain escrow accounts; or how they pad expense reports. Certain manifestations of malcontent with a focus on the siren call of money could be telltale signs of a much larger problem. Getting involved as a "brother's keeper" is not always easy, and can create obligations far beyond just lending an ear. An ethical quandary could arise when a sinner comes clean to his big brother and privately admits wrongdoing. In that case, the listener might actually have to report the offender to the disciplinary committee (assuming an informal attorney-client relationship wasn't first created). Also, the challenged workfellow may simply shut down and tell his "brother" to "get lost," thus ending the friendship or collegiality. Hard-nosed attorneys often think they can handle whatever comes their way, and may not welcome compassionate arms. Furthermore, some pristine lawyers might feel tarnished by the blighting influence of a troubled soul with too much baggage. These days, even the slightest appearance of impropriety or involvement can be a real concern indeed. The legal profession depends on internal checks and balances, not moral exhortation. To maintain more than theories about the profession's integrity by looking after our fallen colleagues, we have already waited too long. Simply put, we need to be pre-emptive. While the term "intervention" might be too strong, our ethics rules teach us to become engaged. The atmosphere of a law firm certainly influences its members' conduct, but for those who veer from the straightforward structure, we can try to take responsibility for them on an individual basis in which privilege is carefully maintained. As lawyers, we pride ourselves on our ability to persuade. Without intending to sound preachy, let's see if we're up to our proud pronouncements. For this New Year, let's see if we're up to making a resolution we can stick to.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is a former New York state and federal prosecutor and is an Adjunct Professor of Professional Responsibility at Fordham Law School. He is a frequent commentator and lecturer on criminal law and legal ethics. He can be reached at jcohen@stroock.com. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York law firm. She has published numerous articles and commentary on legal issues. She can be reached at kassie.helm@gmail.com. This column is the latest in a monthly series by Cohen and Helm for Law.com.