ethics of large law firms--responses and reflections, The

Georgetown Journal of Legal Ethics, The, Fall 2002 by Wernz, William J

A. IS LAWYERING TODAY AN (ESPECIALLY AND UNNECESSARILY) "UNETHICAL PROFESSION?" (SCHILTZ)

Schiltz makes two broad contentions about the ethics of lawyers. First, he contends that today's lawyers constitute an "unethical profession." This contention is unclear and unconvincing. Are lawyers especially unethical when compared to other professions or to society as a whole? Are today's lawyers "unethical" when compared on the whole with their predecessors? Schiltz does not consider much of the evidence that would be necessary to answer these questions, in part because he concentrates on time and billing at large law firms and pays little attention to other morally resonant dimensions of the profession. For example, Schiltz takes no account of professional regulation (which he dismisses as "irrelevant"), even though the moral character of the profession is in part formed by its social efforts. The profession is more ethical in Minnesota today, because it funds a Client Security Board that pays victims of lawyer dishonesty up to $150,000 a claim, than twenty years ago, when virtually nothing was paid. In determining whether the profession on the whole has become unethical, account should also be taken of the profession's increasing pro bono efforts, a subject also ignored by Schiltz. Having chosen a very broad topic-whether the profession is unethical-Schiltz pays little attention to the social ethics of the profession outside the walls of the law office. Even within the office, it is morally significant that discrimination in hiring has dramatically decreased.

Second, Schiltz contends that ethics for lawyers is essentially as simple as ethics for gas station attendants and mail carriers, and that a lawyer can gauge her ethics by whether her actions would appear wrong to children.17 As demonstrated below, this contention is simply wrong.

Similarly, if lawyering is to be criticized as an "unethical profession," its critics should state whether lawyers are especially unethical or, instead, whether all professions could be called "unethical." If the latter, then "unethical" may tell us little about the special status of the legal profession. If law is claimed to be an unethical profession, then there must be professions that, in contrast, are "ethical." Which are they?

We know that Schiltz does not regard the academy as a model profession, because his first dire diagnosis of the legal profession applied equally to the professorate.19 Similarly, Bogus, who announced "The Death of an Honorable Profession" (law), has argued that journalism has not yet even become a profession."

Would anyone venture to claim that the ethical profession is accounting? The Andersen debacle and demands for outside regulation of the entire "audit industry" show how the large accounting firms have lost their core professional identities.

Would the clergy be the ethical profession? Even before the current scandal regarding sexual abuse by priests, and indifference approaching ratification among the hierarchy, American Roman Catholics have witnessed a virtually wholesale exodus of priests and, to an even greater extent, nuns. Bogus has a field day with the image of lawyers in films, but depictions of the clergy's ineptitude and irrelevance in popular culture match depictions of lawyers' sleaziness stride for stride.