Proposed Standard for Lawyer Advice: What Would Judge Rakoff Think
Lawyers who live up to ethics codes may still be doing their clients a disservice, according to a legal ethics expert.
In a sermon at a Manhattan synagogue earlier this year, New York University law professor Stephen Gillers said lawyers should aim higher, the American Lawyer reports.
Gillers said he didn’t question the advice of the lawyers who told Bernard Madoff’s sons to turn their father in. “What puzzles me is something else. Why did no one do this sooner?” Gillers asked. A business such as Madoff’s can’t be run without the help of lawyers and accountants, he said. “Did none of them know? Did none have suspicions? Did they look the other way?”
Gillers urged lawyers to rely on the wisdom of Elihu Root, who said, “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.”
“Most American lawyers … are counselors or advisers, operating where there is no judge and no adversary,” Gillers said. “No one is watching. And there may never be anyone watching. Then, the temptation is to push the limits, sift the language of the law, find hidden meanings. … Our law cannot be defined solely by the limits of a lawyer’s linguistic imagination. That is a recipe for destabilizing the rule of law, not preserving it.”
The American Lawyer article endorses Gillers’ suggestions and suggests one ethical guidepost could be the federal judge who took Bank of America lawyers to task.
“Perhaps it’s time, to use the current cliche, for lawyers to have a little skin in the game,” the American Lawyer writes. “Here’s a modest proposal: Each time their work leads to the shaming of a client, the lawyers involved get to explain themselves to Judge Rakoff.”
