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

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

Martin Luther's injunction, "Pecca fortiter!" ("Sin bravely!") might be taken as an advocate's motto, but one hopes not that of a gas station attendant, mail carrier, doctor or other professional. "Do no harm" might be a doctor's motto or command, but it cannot be the litigator's. As Bachman argues, "Law is the only learned profession in which one is ethically obligated to hurt people."36 Another Lutheran epigram, "Simul justus et peccatur" ("At the same time justified and sinful") is sometimes the best a lawyer can hope for. If only the examined professional life is worth living and practicing, lawyers, especially advocates, must confront the moral ambiguity of their profession. In so doing, lawyers should be aware that the nature and magnitude of moral challenges facing lawyers vary with their fields of law and their types of practice.

C. IS THE "TYPICAL" LAWYER A "LIAR"? (SCHILTZ)

Having argued that lawyers, especially litigators, necessarily have a complicated relationship with the truth, I am nonetheless unwilling to concede Schiltz's claim that the "typical" lawyer is a "liar." Schiltz identifies avarice as the primary sin characteristic of large firm lawyers and identifies dishonesty as a necessary corollary. Schiltz claims that within a few years of joining a large firm, "the typical young attorney ... will be stealing from her clients almost every day, and she won't even notice it. The young lawyer will also become a liar-and just as easily."37 Padding time sheets and rounding upward to bill in time increments are said to be the most common types of "stealing," but Schiltz extends what he calls typical dishonesty to include lying about why a deadline was missed or whether a document was read, and hiding a document harmful to a client's case.38

documents and telling outright lies are not typical. As Schiltz himself admits, "[T]here is almost universal agreement that no lawyer should `lie, cheat, or humiliate' in the course of representing a client."39 Although many lawyers regularly round up time increments, and, in the heat of advocacy, some yield to the temptation to exaggerate, distort and even mislead, most lawyers habitually draw the line short of making the kind of literally false statement that Schiltz offers by way of example of why he regards the typical lawyer to be a liar. The advocate's life is lived with the occasion of sin of untruthfulness and only an advocate who is both well-informed and disciplined in the best habits of advocacy will avoid that sin.

IV. DIFFERENT OCCASIONS OF SIN FOR DIFERENT LAWYERS

I have argued that ethics for lawyers, as opposed to other professions and occupations, is an especially knotty and ambiguous challenge. Beyond this ambiguity there are more specific moral challenges that vary with practice settings. Lawyers in large firms have special ethical challenges, but so do lawyers in every area of law and in every practice setting.

An "occasion of sin" is a set of circumstances which, while not itself sinful, is apt to influence a person to veer away from the good and toward evil. There are occasions of sin which tend to affect all lawyers, but there are also temptations specific to types of practice and law firm organizations. The circumstances that are apt to produce unethical conduct or habits are important because lawyers should be aware of, and resist, that which pushes them toward the inadequate and the outright evil.