The collapse of the Lincoln Savings and Loan Association illustrates the urgent need for reform in the legal profession. It is an instructive example of how the modern lawyer refuses to accept professional responsibility for the unethical or immoral conduct of clients, and it demonstrates how a lawyer's indifference to a client's conduct may contribute to a larger national crisis.
U.S. District Judge Stanley Sporkin has chronicled the commercial abuses and ethical neglect that preceded Lincoln's descent into insolvency. He concludes that the "looting" of Lincoln raises important unanswered questions about its lawyers. "Where were the professionals," Judge Sporkin laments, when "clearly improper transactions" were consummated? Why didn't the lawyers "speak up" or "disassociate" themselves from the conduct of Lincoln owner Charles Keating? Why didn't a lawyer "blow the whistle to stop the over-reaching" that precipitated the collapse?
There is a clear answer to Judge Sporkin's questions: A law practice that separates itself from moral or ethical purpose disintegrates into a preoccupation with fees and protecting its client base.
The problem lies at the heart of the lawyers' code of professional responsibility. It requires the lawyer to zealously advocate the client's cause provided that it is not criminal. The lawyer is not required to stimulate the client to think about the moral or ethical ramifications of an action on people or institutions. It does not insist that the lawyer engage the client in a colloquy over his purpose or motivation. Instead, the lawyer is instructed to busy himself with "questions of means" and technical legal issues.
The refusal of Mr. Keating's legal team to question their client's actions is not the aberration of a few lawyers. They did not follow a professional ethic different from that of the government lawyer, the family lawyer, the prosecutor or the criminal-defense lawyer. Although the Keating lawyers hurt more people, more visibly, the divorce lawyer who allows his male clients to contest custody of the children in order to bargain for lower alimony payments is engaged in the same enterprise.
The lawyer must know that because a claim is "colorable," that is, legally plausible, does not always mean it should be prosecuted; because a position is technically defensible does not mean it always should be defended.
He knows that because a client's conduct may not be criminal beyond a reasonable doubt does not mean that such conduct is ethical or moral. In fact, as in the case of Lincoln Savings and Loan, it may be an assault on clearly recognizable standards of decency.
What is needed is a new ethic of professional responsibility. The lawyer, wrote Abraham Lincoln, has a "superior opportunity of being a good man. There will be business enough."
This opportunity carries with it responsibilities that cannot be rationalized away. The public interest requires a lawyer to be more than a spectator or legal technician. He acquires practical, moral insights into the costs and benefits of litigation. He is in a unique position to discourage a client from conduct that will harm people and institutions. He has a duty to teach and occasionally inspire with an appreciation of values that transcend the morality of the marketplace.
The lawyer's concerns may not alter the client's course. But his efforts will raise up the profession as the guardian of a jurisprudence that teaches and inspires as it advocates with uncompromising purpose.
Lawyers and the public increasingly find themselves thrown together. The lawyer is subject to greater scrutiny, the object of both media fascination and criticism. It is no longer possible for the lawyer to mystify an awe-struck public with Latin incantations. The barrier that has separated the public from the legal profession is coming down. As it does, the public is troubled by what it sees. There is a rising tide of anger with the legal profession that may amount to more than lawyers' past bouts with bad publicity. State legislatures, a barometer of public opinion, are considering measures to cap attorneys' fees and abridge the right to sue.
Many lawyers have known for some time that something is profoundly wrong with the ethics of the profession. They have taken down their shingles to open ice cream parlors and miniature golf courses. A former law-school classmate of mine now hangs expensive grass cloth.
Today's law practice seems to attract and keep those who feel comfortable with the current state of affairs. It has produced a fearful inertia within the profession.
In the public mind the lawyer has become an obstacle to the pursuit and vindication of those basic notions of fairness to which the profession claims a special relationship. The refusal of Charles Keating's lawyers to blow the whistle bolsters this point of view.
The organized bar is mistaken if it dismisses the demand that a good lawyer also perform as a good man or woman. It is more than a quaint suggestion or a visionary challenge. It may be the legal profession's last chance.
Luiz R.S. Simmons, a practicing lawyer and a former member of the Maryland General Assembly, wrote this commentary for the Christian Science Monitor.