a. Option 1: Sheer Crooks
Some attorneys are simply dishonest. They like the money, or the feeling of power, that they get from cheating someone else, and they don't seem to suffer from the guilt that might deter a good person. It helps them, too, to see that other attorneys and clients share their attitudes.
Competition can be fun. But it can also be a pain. In law, as in sports, it's sometimes tough to know where to draw the line and say that someone has gone too far.
The rules for competition need to be liberal, so that people will want to come up with successful new ideas. But the rules can't let you win for an irrelevant reason. You're supposed to win because you're skilled or because you have a winning position. People sometimes call this "sporting'' or "gentlemanly'' competition. The idea is that you compete as hard as you can, but you stay within the rules, even if it means losing.
That can sound wimpy to those who want to win no matter what, even (indeed, for some people, preferably) if it involves cheating. For these people, winning is the only thing that counts, and the only people talking about fair competition are those who can't hack it when the fight gets fierce. And there are long-term drawbacks - such as always having to look over your shoulder, always feeling dirty, not having real friends, etc. - but those are easy to ignore now and regret later, especially if the immediate payoff is rich enough.
Cheating does no good for the rest of us, though. If we hadn't believed in those rules for the courtroom or the baseball diamond, we wouldn't have set them up in the first place. We wanted them to show us who's the best. People who avoid them simply wipe out the whole purpose of the competition. For example, in the business world, ignoring the rules gives us shoddy goods and services. Your product can be inferior, and yet, with the Mafia behind you, or with the right advertising budget or the right attorneys, you can chase your competitors out of the market.
That's one drawback of playing to win. There's another drawback, namely, that sporting competition is much more fun. Winning is everything to the winner, but it's only part of why all those other people showed up to participate in the competition, knowing as they did that the odds were against them. The fact is, the contest wouldn't be the same without the enjoyment that those others are having, win or lose.
It's not surprising to see cheating occur so frequently in the practice of law. Law is not like a footrace, where there's a direct link between what you're doing and what you're trying to accomplish. In running, you win the race, not because of your juggling skills or how many pancakes you can eat, but simply because you are the fastest runner.
But in law, you use one kind of means to get to another kind of end. For example, most authorities say that you're in court to find the truth, and yet they let attorneys mislead people. As another example, courts are supposed to add to social peace. If you have an argument with someone, they're supposed to help you resolve it. But, instead, they add fuel to the flame. You learn that it helps your case to think of more and more reasons why you - and the judge - should hate the other guy.
This hurts those who come to the system sincerely, willing to compete fairly, on the merits of the specific problem that brought them there. It helps those who, for the sake of winning, will cheat, play games with the truth, and trot out irrelevant stuff to make the other guy look bad.
Of course, what one person can do, the other can do as well. Clients get tougher. And what used to be considered outrageous becomes standard. Indeed, as this process goes on, attorneys who aren't dirty fighters risk being held liable for malpractice, for not trying hard enough.
b. Option 2: Conform and Compromise
Not all attorneys are cold-blooded sharks. Most are human beings who feel some degree of responsibility to do the right thing. Starting in law school, their lives have been a matter of balancing their personal integrity against the demands of their legal careers.
That compromise does not always require great dishonesty. Some attorneys practice in legal specialties in which they simply don't come across many challenging moral questions. A few others are able to distinguish themselves from the crowd as, for example, "Honest Abe Lincoln."
Also, in a lot of places, there aren't that many attorneys. It's a small world, and reputations get around. You can fight dirty for a while, but it may come back to haunt you. First, not all attorneys share this urge to make the world a more honest place. Even the honest ones might be indignant at the suggestion that they're supposed to act as moral policemen for their clients. "Business is business," they'll say, "and my job is to help my client win. That's where my paycheck comes from, and that's what I promised to do when I became an attorney." Sometimes you'll appreciate it, and sometimes you won't, but the bottom line is that, under our system of justice, your adversary's lawyer has a job to do.
Second, let's not flatter ourselves on our ability to sway the client. Clients may be flexible in Utah, but when you're in New York, they expect you to fight like a cornered werewolf. Too many of them, anyway.
Third, that incentive to be "one of the guys" may soften your aggression, but it can also mellow out your ethical conscience. For example, one article, foolishly entitled "Lawyers Are Serious About Professional Responsibility," noted that 58 percent of the attorneys who have witnessed misconduct by judges have decided not to report it; at least 33 percent of the attorneys polled said they would find it difficult to object (and remember, they're talking about themselves, so the percentages are probably higher) if a partner in their firms asked them to do something unethical; 76 percent say they occasionally or often encounter dishonest opposing lawyers; and one-third can't say that they believe the legal profession should police itself.
Attorneys do this sometimes, and it's a peculiar sight. After all, they're normally the first to focus on the details. Somehow, though, lawyers who can think for hours about how a staircase was designed will not hesitate for a moment when they face huge gaps in their understanding of who they are and what they're doing. Instead, they flit right across, as though there's nothing to talk about. I call this phenomenon the "Lawyer's Black Hole of Confident Ignorance."
Those Black Holes pop up all over. Who invented this notion that compromise and flexibility can take care of the lawyer's ethical concerns? There are all kinds of lawyers, and many of them are genuinely honest people who struggle with difficult issues of right and wrong. But the foregoing attitudes came up far too often for my taste in law school, and far too few people, among faculty or students, daring to defend the moral against the ethical.
