Mengis, Warren L.

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Professional Responsibility

Louisiana Law ReviewVolume 49 | Number 2Developments in the Law, 1987-1988: A FacultySymposiumNovember 1988Professional ResponsibilityWarren L. MengisThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationWarren L. Mengis, Professional Responsibility, 49 La. L. Rev. (1988)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol49/iss2/14PROFESSIONAL RESPONSIBILITYWarren L. Mengis*In preparing an article for the annual faculty symposium, the writerusually looks back over the past year for significant legislative acts andjudicial decisions. Primarily, we are trying to bring to the attention ofthe practicing bar the developments which have occurred. Last year'sarticle' is illustrative.A review of all of the Louisiana cases touching on the Legal Pro-fession since last year's article revealed nothing new, with the possibleexception of L.S.B.A. v. Chatelain.2 There. were the usual number ofdiscipline cases, perhaps even a few more than usual, and the usualnumber of malpractice cases. There were several "reasonable fee" casesand five or six "effective assistance of counsel" decisions.On the legislative side, however, there was an extremely importantdevelopment. "Rule eleven" was made a part of the Louisiana Codeof Civil Procedure in article 863 and article 1420. In addition, localbar associations around the country were adopting "lawyer creeds" andJustice Sandra Day O'Connor expressed her dismay at unlimited legaladvertising.No matter what a lawyer picks up to read these days he findssomeone in authority exhorting "professionalism." Mr. Wood Brown,III, president of the Louisiana State Bar Association, characterizes thissubject as one of the "hot items" among the organized bar nationwide.3He refers to a dissenting opinion by Justice Sandra Day O'Connor inShapero v. Kentucky Bar Association4 in which she outlines several ofthe elements of what constitutes a "learned profession." Justice O'Con-nor was writing in opposition to unrestricted lawyer advertising.'Copyright 1988, by LOUISIANA LAW REviEw.* Professor of Law, Louisiana State University.I. Mengis, Developments in the Law, 1986-1987-Professional Responsibility, 48 La.L. Rev. 437 (1987).2. 513 So. 2d 1178 (La. 1987). The Supreme Court held that a lawyer's trust accounthad a public aspect and records thereof could be subpoenaed by the Professional Re-sponsibility Committee of the State Bar Association.3. Brown, President's Message, 36 La. B.J. 72 (No. 2 Aug. 1988).4. 108 S. Ct. 1916 (1988).5. Other articles which define and discuss what a "profession" is are: Wade, PublicResponsibilities of the Learned Professions, 21 La. L. Rev. 130 (1960); Pipkin, LawSchool Instruction in Professional Responsibility: A Curricular Paradox, 1979 Am. B.Found. Res. J. 247; Stason, Why a Profession?, 21 La. L. Rev. 153 (1960); Provosty,President's Message, 34 La. B.J. 192 (1986).LOUISIANA LAW REVIEWIn the United States District Court for the Northern District ofTexas, Dallas Division, the court en banc has established standardsdesigned to govern the conduct of attorneys engaged in civil litigation. 6These standards stress the lawyer's duty to the judicial system (theobligation of candor, diligence, and respect to the judiciary), as well ashis obligation of courtesy and cooperation toward opposing counsel. 7In the same locality the Dallas Bar Association has recently adopted"guidelines of professional courtesy" and a "lawyer's creed," both ofwhich stress the lawyer's obligation to use the judicial system properlyand responsibly."Most of us .are familiar with the report of the Commission onProfessionalism to the Board of Governors and the House of Delegatesof the American Bar Association that was released in August of 1986. 9We see the same thing stressed in this report as in all of the otherliterature on professional responsibility: a lawyer true to his professionrealizes that he has awesome privileges and responsibilities in what wecall the "system of justice." Michael Davis, writing in the GeorgetownJournal of Legal Ethics, 0 defined "professionalism" as putting yourprofession first. He continued:To declare yourself a lawyer is to profess more than knowledgeor experience of legal work. It is, in effect, to claim that youhave the education lawyers are supposed to have, passed thetests lawyers are supposed to pass, that you have made thecommitments lawyers are supposed to make. Among those com-mitments is the commitment to act in accordance with a codeof ethics, such as, The Model Rules of Professional Conduct,The Model Code of Professional Responsibility, or some similarcode (depending on where the lawyer practices)."One of the elements that is always included in any definition of"professionalism" is self-regulation. This is accomplished in Louisianaby the Model Rules of Professional Conduct, which became effectiveon January 1, 1987. Those rules emphasize, more than did the Codeof Professional Responsibility, the lawyer's duties toward the system ofjustice and nonclients, or third parties. Complementing these rules are6. These standards were set out in Dondi Properties Corp. v. Commerce Savingsand Loan Ass'n, 121 F.R.D. 284 (N.D. Tex. 1988).7. Id. at 287.8. Id.9. ". . . in the Spirit of Public Service:" A Blueprint for the Rekindling of LawyerProfessionalism, 112 F.R.D. 243 (1986).10. Davis, Professionalism Means Putting Your Profession First, 2 Geo. J. LegalEthics 341 (1988).11. Id. at 342.[Vol. 49PROFESSIONAL RESPONSIBILITYseveral recent amendments to articles 863 and 1420 of the LouisianaCode of Civil Procedure.'2 These amendments introduce a sort of "ruleeleven" into Louisiana's civil procedure.' 3At this point it would seem pertinent to stop and ask ourselves ifall of this emphasis on professionalism is working. In conjunction withmandatory continuing legal education, this writer speaks on ethicsthroughout the state of Louisiana. Anecdotal evidence from both lawyersand judges indicates that the answer must be a resounding no. But why?Surely there must be more than one reason. Would lawyers and thepublic be better off with no self-regulation? Are we truly, as Mr. MichaelGarth Moore wrote to the National Law Journal in 1987, members of"a trade, like the plumber, the carpenter and the cabinetmaker," andtherefore not susceptible to self-regulation?It appears to this writer that the necessity perceived by the UnitedStates District Court for the Northern District of Texas, the Dallas BarAssociation, the Legislature of Louisiana and the Congress of the UnitedStates to supplement the positive expressions of the lawyer's ethicalduties is in fact a recognition that the current system is not working.Is BETTER SELF-REGULATION THE ANSWER?It has long been a tenet of a national consumer organization calledHALT (Help Abolish Legal Tyranny) that self-discipline can never workbecause of the inevitable conflict of interest one encounters in applyingdisciplinary constraints to oneself. This same organization repeatedlyquestions the whole concept of professionalism among attorneys, andadvocates the destruction of "the myth that lawyers are anything otherthan business people delivering a service." It seems to the writer thatthe greatest fan of the position taken by HALT has been the UnitedStates Supreme Court. In a series of cases beginning with In re Griffiths'4and ending with Shapero v. Kentucky Bar Association,5 the SupremeCourt of the United States has made it perfectly clear that there is nosuch thing as a "learned profession" exemption from the ShermanAntitrust Act or the first amendment to the United States Constitution.It may be helpful to contrast some of the duties and responsibilitiesof a lawyer who considers himself a member of a learned profession,12. 1988 La. Acts No. 442.13. Act 442 introduced new sanctions for improper use of the judicial process, andin that way closely parallels Fed. R. Civ. P. 11, known in practitioner's jargon as "ruleeleven."14. 413 U.S. 717, 93 S. Ct. 2851 (1973).15. 108 S. Ct. 1916 (1988). The court's position was developed in the interim byGoldfarb v. Virginia State Bar, 421 U.S. 773, 95 S. Ct. 2004 (1975); Bates v. State Barof Arizona, 433 U.S. 350 97 S. Ct. 2691 (1977); and Zauderer v. Supreme Court ofOhio, 471 U.S. 626, 105 S. Ct. 2265 (1985).1988]LOUISIANA LA W REVIEWand thereby bound by a code of ethics, with those of a lawyer whoconsiders himself simply a tradesman. The lawyer who considers himselfa professional exhibits these attributes:His primary goal is public service through the promotionof an efficient system of justice.He observes a ban on competition that includes no feecutting, no advertising, and no direct solicitation.He respects and carries out his duty to represent indigentswithout compensation.He considers pro bono work an obligation.He charges only reasonable fees.He owes a fiduciary duty to his clients and considers therelationship between himself and his client to be personal, unique,and fiduciary.He is familiar with and attempts to abide by the ModelRules of Professional Conduct.He acknowledges that his constitutional rights may some-times be limited by his oath as an attorney at law.He attends continuing legal education seminars not becausesuch attendance is mandatory, but because he regards it as hisduty to continue to be competent.He protects the confidentiality of all matters relating to therepresentation of his client.He is candid and respectful to the court and fair to allothers.He believes that duty to his client or duty to the system ofjustice are interrelated, and that service to the one serves theother.Now let us consider the lawyer who is simply a tradesman:He may engage in any lawful type of competition, whichwould include cutting fees, advertising, and direct solicitationof business.He may charge what the market will bear.He cannot be forced to work for nothing.He owes no one pro bono services.He does not acknowledge that he is a member of any specialclass subject to any special privileges, nor does he acknowledgethat he is subject to any special rules or supervision.He vigorously claims every constitutional right that anyone[Vol. 49PROFESSIONAL RESPONSIBILITYelse has.He regards competence as a competitive advantage pursuedfor economic benefit.His relationship with his clients is not necessarily personal,nor is it unique in any sense, and it is fiduciary only to theextent required by the laws of the state.Confidentiality is governed only by the evidentiary privilege.He owes no duty of candor to the court or fairness toothers, and he does not recognize any rules of etiquette eithertoward his brother lawyers or toward court officials.He considers "officer of the court" to be an empty title.No matter what the Louisiana State Bar Association does with self-regulation or discipline, it is not going to bridge the chasm betweenthese two very different attitudes. It is futile therefore to say, as somany bar officials do, that more and better regulation is necessary. Allone has to do to disabuse himself of the idea that more efficientdisciplinary regulation would make our troubles go away is to reviewwhat has been the subject of discipline over the years since the Clarkreport in 1970. The vast majority of cases in which serious sanctionswere imposed involved either convictions for serious offenses or findingsof manifest dishonesty (commingling, embezzlement, or outright theft).Matters such as overcharging, representing conflicting interests, violationsof confidentiality, abuse of judicial procedures, and lack of candor tothe tribunal usually have been decided by the courts in specific cases,and if there has been any follow-up in the disciplinary process, it hasnot reached the public stage except in isolated instances.But it is here where so many problems lie. Many attorneys seenothing ethically wrong with misusing the system of justice as long asit is advantageous to their clients or as long as it is profitable to them.The courts are taking corrective measures, but such steps should notbe necessary. In a recent law review article, Professor L. Ray Pattersondiscusses a 1986 Georgia Supreme Court decision that created new tort-abusive litigation.' 6 Legal procedure should be a vehicle to early deter-mination of real disputes. Using procedural devices to prevent that earlydetermination perverts the adversary system. Such abuse of the systemhas led some to conclude that the adversary ethic itself is unsound, 7 aview which the writer does not share. It must give pause to consider,16. Patterson, Yost v. Torok: Taking Legal Ethics Seriously, 4 Ga. St. U.L. Rev.23 (1988).17. Shaffer, The Unique, Novel, and Unsound Adversary Ethics, 41 Vand. L. Rev.697 (1988).19881LOUISIANA LAW REVIEWhowever, that professional standards are maintained by compulsive ratherthan voluntary adherence to the Model Rules. Perhaps this is why thefederal court in Dallas feels that it is necessary to do more than simplyadopt by rule of court the Model Rules of Professional Conduct or theModel Code of Professional Responsibility. Obviously Federal Rules ofCivil Procedure Rule 11 was designed to force compliance with whatare now Rules 3.1, 3.2, 3.3 and 3.4 of the Model Rules. Although thiswriter certainly has not conducted a survey, he would suspect that lawyersare much more apt to pay attention to and follow the admonitions ofRule 11 than the admonitions of Rules 3.1 and following.Justice O'Connor, in her dissenting opinion in Shapero, said:One distinguishing feature of any profession, unlike other oc-cupations that may be equally respectable, is that membershipentails an ethical obligation to temper one's selfish pursuit ofeconomic success by adhering to standards of conduct that couldnot be enforced either by legal fiat or though the discipline ofthe market. 8As this statement demonstrates, Justice O'Connor recognizes that ad-herence to ethical rules cannot really be enforced unless the vast majorityof lawyers and judges adhere to them as a matter of conscience. InLouisiana this insight brings us squarely up against the integrated barassociation. Every lawyer, in order to practice in Louisiana, must belongto the Louisiana State Bar Association. However, that association, asan arm of the Supreme Court of Louisiana, simply cannot imposeregulations on its members that are more restrictive than those theSupreme Court of the United States will allow. But what about avoluntary association of Louisiana lawyers? Certain trial lawyer asso-ciations in the United States have adopted sets of ethical rules for theirmembers. To some extent, this is what the Dallas Bar Association isdoing.Lawyers who believe that adherence to traditional ethics enhancesthe system of justice, aids the public in general, and gives them a higherquality of life could form their own association and open their mem-bership to all who share the same dedication to professionalism and arewilling to give up some of their "rights" in order to present a unitedfront. Of course, such an effort might be immediately labeled elitist,and the organization branded as a guild. But if a guild is dedicated toserving the public through a more efficient system of justice, what groundis there for complaint?Some commentators have contended that the whole problem lies inlack of training in the law schools. If what they mean is that these18. Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1929 (1988) (O'Connor, J.,dissenting).[Vol. 49PROFESSIONAL RESPONSIBILITYschools have failed to teach the Code or the Rules, their charge simplydoes not hold water. What we have been teaching in law schools arethe ethical rules adopted by the supreme court of our state as limitedby the rulings of the United States Supreme Court. We do not teach"ethics," properly defined as "standards of right and wrong that pre-scribe what humans ought to do, usually in terms of rights, obligations,benefits to society, fairness or specific virtues." 1 9 Much of what appearsin our Model Rules simply is not "ethics" at all, but is more akin toetiquette. 20 The old ban on fee cutting, advertising, and solicitation fallinto this category. Thus, the problem is not that' students are not taughtthat the profession they seek to embrace is dedicated to public service;rather, it is that students simply do not see such dedication in the othermembers of their profession when they begin to practice. The realeconomic peer pressure brought to bear on those entering our professiontends to produce a business-as-usual attitude. 21CONCLUSIONFrom all of these musings can we arrive at any conclusions thatmight be helpful to us as lawyers, to the more efficient working of thesystem of justice, and to the public in general? Mr. Ronald D. Rotunda,in an article entitled "The Word 'Profession' is Only a Label-AndNot a Very Useful One,"' 22 argues that the professional qualities ofdedication to serving client interests-of rendering a service beyond self-interest, of duty, of a spirit of public service-are attributes of indi-viduals, not of occupations. Perhaps it is time to acknowledge that thereis no consensus in the legal profession in connection with standards ofconduct that are proposed by bar associations. Perhaps we should alsorecognize that there is a national trend away from any one set of moralor ethical standards. What, then, should we do?While admitting that there is no clear cut answer to this question,this writer offers the following proposals. First, the law schools shouldrevamp their approach to the teaching of professional ethics. As a firststep in this direction, each law professor should teach ethics in thebroad sense as an integral part of his course. This is in essence theapproach that Thomas Schaffer takes in his text on legal ethics.2 3 Thecourse in professional responsibility, which should be taught in the senioryear, should in large part be devoted to an historical review of the19. 1 Issues in Ethics 2 (Oct. 1987).20. Drinker, Legal Ethics 211, n.3 (1953).21. Bowie, The Law: From a Profession to a Business, 41 Vand. L. Rev. 741 (1988).22. Rotunda, 4 Learning & L. 16 (Summer 1977).23. American Legal Ethics: Text, Reading and Discussion Topics (Matthew Bender,1985).19881494 LOUISIANA LAW RE VIEW [Vol. 49various codes of ethics to demonstrate why we have such a code andhow it is supposed to work. The remainder of the course should bededicated to what is, in fact, a far less important subject, namely,mastery of the mechanical rules, which we should somewhat looselyrefer to as the "Code of Ethics." As all lawyers know, this Code ofEthics, whether it be the Model Rules or the Model Code, simply doesnot have answers to the truly difficult questions facing lawyers. Theseanswers can only be reached by the individual lawyer after seriousreflection upon what he has been taught by his parents, his church, histeachers, and his law professors.Second, a change of attitude must also be stressed by law professorsand the courts. Trite though it may seem, lawyers must be expected toadvance the system of justice, which inevitably will be beneficial to theclients, even at the expense of the lawyer's own economic welfare.

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Professional Responsibility

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