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Examining lawyers’ ethical choices
A just-published book co-edited by a UB Law School faculty member sheds new light on the ways practicing lawyers make ethical choices—decisions greatly influenced by their practice area, client behavior, office setting and other factors.
Professor Lynn Mather, a former director of the Law School’s Baldy Center for Law & Social Policy, is co-editor with Leslie C. Levin of the University of Connecticut School of Law of “Lawyers in Practice: Ethical Decision Making in Context” (University of Chicago Press). The book, which grew out of a Baldy Center conference in 2010, collects essays from leading interdisciplinary scholars on how lawyers make decisions about matters of ethics and how they respond to ethical dilemmas.
The book’s chapters focus on ethical dilemmas ranging from relatively narrow issues to broader problems of professionalism, including a prosecutor’s obligation to disclose evidence, managing conflicts of interest and loyalty to clients and the court. Contributors have expertise in sociology, political science or law, and all use empirical research, such as surveys or interviews, as the basis for their chapters.
Mather, who teaches and writes in the area of the sociology of law, points out that the legal profession is largely self-regulating, with state discipline committees setting standards of ethical conduct and adjudicating allegations of misconduct. But, she says, other factors—the context in which lawyers practice—play a crucial role in determining how lawyers conceive of ethical conduct.
She says surveys have shown that lawyers, over the course of their careers, tend to believe that the work being done around them is more ethical than when they first started practicing. The pessimistic explanation for that, Mather says, is that early in their careers, lawyers see ethics as black and white, but as they gain experience, they come to accept ethical shading as necessary to best serve clients. That is, they become corrupted and experience “ethical fading.” The optimistic explanation, she says, is that lawyers engage in “ethical learning,” discovering “that not every rule has the same value” and that some decisions serve the interests of justice.
Besides the introductory chapter, Mather also co-wrote two chapters that appear in the book on divorce law practice and patent law practice.
Divorce lawyers, she says, endure high rates of professional misconduct complaints, which she says, “have to do with the particular nature of divorce practice.” Clients, she says, “are so emotional and upset that they often have difficulty accepting the legal reality as a lawyer would tell it to them.” If aspects of the divorce settlement seem unfair, clients can interpret that as poor performance by their lawyer. Also, Mather says, the “other” spouse can make misconduct allegations if he or she feels wronged by the ex-spouse’s attorney.
Moreover, many divorce lawyers work in solo or small practices, often with inadequate administrative support, leading to such issues as not returning phone calls and not staying on top of paperwork.
The solution, Mather says, is careful case management, as well as client management. “Attorneys have to learn how to educate their clients calmly and patiently, to defuse the emotion,” she says.
Interviews with patent lawyers for her other chapter looked at issues of conflict of interest, such as when a lawyer in a large firm takes a case in which he or she, or another lawyer at the same firm, has knowledge of or responsibility for a competitor’s situation; and the “duty of candor,” which says that lawyers must be honest when they’re revealing information that a court or third party requests.
Patent lawyers, Mather says, “tend to place a particularly high value on honesty and candor. By and large, they take it very seriously. One reason is that the sanctions are so high. If you don’t disclose information that you were supposed to, the patent can be ruled invalid and you can also have punitive damages for willful misconduct. If you’re talking about a patent that can generate millions of dollars in a set amount of time, you’ll never work for that client or that patent firm again.
“It’s not necessarily that the people who become patent lawyers are more honest,” Mather says, “it’s just that in the context of practice, the penalties are greater. People are paying attention to what you do because the stakes are so high.”
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