Professionalism and a strong sense of ethics are essential traits for a lawyer. To maintain a license to practice law, lawyers must follow a code of conduct governing their professional behavior. Policing attorney compliance with the Rules of Professional Conduct is imperfect, however, and examples abound of lawyers stretching if not completely ignoring ethics rules to win a case or chase a monetary payoff.
In this roundtable, six attorneys discuss what it takes to be an ethical lawyer today, how they balance the competing interests they face while representing clients, and how legal ethics are evolving.
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Richard J. Brandenstein (RB) is a New York-based attorney, and FBR Law partner, specializing in administrative law.
The areas he specifically focuses on include New York state disability and New York state workers’ compensation. With over 40 years of experience as an attorney, he also trains new legal staff in his company. |
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Mark Sadaka (MS) is an accomplished trial lawyer with a specialized medical background that has made him a leader in medically complicated cases.
Mark represents people hurt by defective drugs, medical devices, vaccines, exposure to hazardous chemicals, and other dangerous products. He also represents victims of corporate fraud. |
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Gary S. Freed (GF) is the founder and managing partner of Freed Grant LLC with offices in Atlanta and Alpharetta, Georgia.
Gary has been practicing business law for more than 40 years. He represents clients across the United States and overseas. He is also very active in legal, business and community organizations. |
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Nance L. Schick (NS) is the founder of Third Ear Conflict Resolution, a 19-year-old workplace dispute resolution firm in New York City that takes a holistic approach to resolving discrimination, sexual harassment, and worker classification issues.
She also serves as a Title IX and DEI trainer and investigator at CUNY Queens College. |
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Andrew Ayers (AA) is a business law and estate planning attorney with offices in Edina, Minnesota, and New York City.
He focuses his practice on ensuring that business owners and families have a concrete and understandable plan for their future. |
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Portia M. Wood (PW) is a generational wealth planning attorney. Based in Los Angeles, she leads Wood Legal Group, LLP, a woman-owned and operated law firm specializing in estate planning, probate, and elder law that she runs with her mother and law partner, Robin Wood. They are passionately focused on helping marginalized communities grow and protect wealth by being a trusted resource for accurate information and comprehensive, culturally competent estate planning. |
1. What is the state of ethics in the legal profession today?
Richard J. Brandenstein (RB): I think the Depp v. Heard case is a good example of this, having been in recent news. On the one hand the ethics of televised cases was a topic of controversy, how the lawyers act was scrutinized greatly, more so due to them being on camera. On the other hand, it seems it was the ethics of the discoveries in the case that led the court to consider legal precedent in a new light. I feel the case has highlighted how the ethics of today’s legal profession is changing.
Mark Sadaka (MS): The state of ethics in the legal industry isn’t what it used to be. Lawyers aren’t as truthful and trustworthy as they would seem. Most money laundering operations are run by a smart yet unethical lawyer. It’s all in the name of chasing the lavish lifestyle that being a dirty lawyer offers. Cleaning up the legal messes of the rich and elite has become a regular task for lawyers. We’re living in a time when the upholders of justice are the ones pulling it down.
Gary Freed (GF): I think those responsible for teaching ethics have done an amazing job of putting ethics and professionalism at the forefront of law school curriculum and continuing legal education. The programs are well done, thought out, and displayed with examples that are relevant. They impart onto law students and attorneys that “doing the right thing” needs to be our professional mantra.
That said, lawyers are members of society and society has become less ethical. Too many leaders have placed an “ends justify the means” tag on politics which carries over to lawyers. Whether the belief of the lawyers is sincere or money-based one doesn’t know, but I do see a digression in ethics in the legal profession. This is due in part to societal changes and partly because of the demands placed on lawyers to win. Justice and equitable dispute resolution are not the paramount concerns in many cases. It’s about winning at all costs. This can lead lawyers outside of ethical boundaries.
Nance Schick (NS): I’ve only been practicing for 20 years, but I suspect the profession is more ethical than in past years. Based on my limited knowledge of the history of professional ethics, I understand that codes for learned professions like law were introduced in 1675. At that time, legal services were primarily for the wealthy. As services became more available to people of lower economic status and with less education, the temptation to take advantage was apparently too great for some lawyers. Then, the Civil War in the United States created opportunities for aggressive lawyers to make money off the Reconstruction, and in 1887, Alabama was inspired to pass the first code of ethics. Other states followed. Yet there was still widespread, overt discrimination that often led to hate crimes and abuses that were not prosecuted.
By 1908, there was a model code that has evolved into what most states follow in some form, yet discrimination, abuses, and unpunished hate crimes continued. Later, the Watergate scandal and other concerns about the profession resulted in the multistate professional responsibility examination. That exam and continuing education requirements might be making a difference. According to 2020 statistics compiled by the American Bar Association, fewer than a fraction of 1% of lawyers are disciplined each year. “In every year since 1998, the percentage of lawyers disciplined has remained relatively constant” (see id.). We’re also seeing a slow transformation and departure from the profession’s history of elitist, racist, and sexist behaviors. We still have work to do, but we are making progress and arguably more ethical.
Andrew Ayers (AA): I think there has been an emergence of new pressures on the legal profession that have caused some serious growing pains for those in the solo and small firm market. As technology has advanced, I have encountered a variety of lawyers who have not kept up with the pace of technology, and as they fall behind, they’ve been forced to take some ethical shortcuts to try to stay in the game. With the economic pressures increasing, there also seems to be more practitioners willing to blur the line when it comes to ethics to try to get results for their clients and it’s been concerning to see some of those positions advanced on behalf of their clients.
Portia M. Wood (PW): Ethics is at the forefront of every conversation in the legal profession. Because of the nature of the trust that our clients have to instill in us we must maintain strong ethical boundaries. Unfortunately, as we’ve seen in the media, some lawyers have abused that power and are causing distrust of the entire profession, which truly harms society as a whole. It is important to focus on culturally confident representation so that clients in society at large may regain their confidence in the system and the officers of that system.
2. Are lawyers more or less ethical than when you began practicing law? What is the reason for this?
RB: I would suggest that with the rise of political correctness, lawyers generally have to be more ethical by proxy. People’s right to representation has become more important, and legal proceedings that go awry are now more apparent. The importance of respecting the law and working within its confines is certainly something that is more important these days.
MS: I would say it’s right about the same. Unethical lawyers have always been a thing in every day and age. Obviously, the scale of it has increased with the growth of the legal industry.
GF: My impression is that lawyers overall are less ethical. When I began practicing you could have a handshake or verbal agreement with a lawyer, and you knew the lawyer would honor the agreement. That has gone by the wayside. Many lawyers don’t honor informal agreements, and clients now question the attorney agreeing to something based only on a handshake. They want everything documented at every level. From a practice standpoint that is becoming a necessity since it could be malpractice to rely on another’s word, especially in a large case.
Many lawyers are willing to succumb to what clients want to achieve. That said, the majority of lawyers with whom I’ve practiced are highly ethical. But there is an element of the practice that justifies their conduct based upon what they perceive are the needs of their client. Sometimes it’s insidious, sometimes it’s direct.
The result is lawyers are spending more money documenting things even with acquaintances to avoid being sandbagged.
NS: I have not seen a significant change in ethics over the course of my career. Early on, I saw judges removed due to bribes and lawyers suspended or disbarred for forgeries. Others cleansed records before they exchanged them in civil cases. Judges sometimes protected those attorneys. I see that less now, possibly due to the use of virtual hearings and administrative decisions. It’s sometimes easier for judges to make decisions against parties who are slightly removed from them physically.
AA: The optimist in me would hope that they are more ethical, but I feel that unfortunately, there seem to be more ethical lapses amongst attorneys as more and more “get rich” schemes for lawyers emerge through the use of technology. As an owner of a firm, I feel like I receive pitches almost daily for some “new” way to get referrals or otherwise monetize the clients I already have and none of them seem like they would pass ethical muster with the authorities. But with all the pitches being made, they must be working on someone out there, or they wouldn’t keep doing it. So I fear that the desire to make money is causing some in our profession to jump at opportunities that are less than clean based on ethical standards.
PW: With more culturally competent representation, I believe the legal profession has become more diverse and more ethical where ethnic people are getting care directly and specifically catered to them. Law is being used to create fairer and more just outcomes for individuals, which is different from when I first started out practicing law, where we saw a lot of the lobbying used to create policies that negatively impacted society as a whole.
3. How can clients determine if their lawyer is ethical, and what difference does it make to the outcome of their matter?
RB: Many clients may not know that their lawyer is being unethical and working outside the law, this could even be increasing fees on the client unnecessarily. However they should pay some attention to this, as if they are innocent you can’t go about proving that through criminal actions. In order to be proven innocent you have to find that value within the confines of the law and within ethics.
MS: An ethical lawyer wouldn’t overcharge their clients for their services. They wouldn’t hide anything from clients. Or put their own needs above their clients. They wouldn’t disclose legal information to anyone else. These are all signs that your lawyer is ethical.
To be honest, I don’t believe it makes any difference. An unethical lawyer also strives to resolve their client’s matters. They just do it in a way that lies in a gray area. Crooked lawyers are just as effective as ethical ones. And it all depends on the client’s conscience, whether they’re okay with an unethical lawyer or not.
GF: Clients should talk candidly with their attorneys upfront about their views of the case, expectations, the court system, and whether the attorney is familiar with the judge or opposing counsel.
Judges seem to know which lawyers are honest and which aren’t. Too many lawyers stand up in court or write briefs and say things they know are not true. They don’t pass the plausibility test. Judges are befuddled about what to do about this.
It has gone beyond advocacy. It has digressed to the point where people purposely cite cases or rulings inaccurately. It’s an added burden on judges to flyspeck what counsel tells them is in fact the law or the facts.
The whole process has increased skepticism and that trickles down to added expense.
We just received a six-figure fee award against two law firms who repeatedly and persistently asserted a false narrative as to facts. We were able to convince the judge that from early on the lawyers were aware of it but nonetheless continued the false narrative for years originally and in a renewed action. This ruling sends a message that lawyers are going to be held accountable. More judges need to do the same.
NS: Screen your lawyers carefully. If they have websites and social media accounts, read what they write about. See what kinds of groups and people they are connected to. But don’t rely solely on their public personas. When interviewing them about working on your matter, remember that it is an interview. You’re both seeing whether you are a good fit. You might not know the nuances of the law affecting your matter, but you know yourself, the facts, and a lot of other things. Lawyers who talk down to clients might be the ones more likely to take advantage of them and other parties. Similarly, lawyers who can’t or won’t explain legal concepts in plain language and keep their clients fully informed could be the less ethical ones. There is no fool-proof way to know for certain, and situations change, so people change. Trust your gut and stay involved in your matter through its conclusion.
But let’s be honest. Sometimes, clients are the ones who want unethical lawyers. They demand more than the diligent advocacy required under, for example, New York’s ethical rules. Does it matter? Yes. You might be seeking “a shark” who will use every tool to destroy an opposing party, that party’s attorney, the judge, and even the system for your advantage, but that has consequences. You might win in the short term, but you’ll invite counterattacks that could cause you long-term, irreparable harm. An ethical attorney will help you get the current matter resolved as completely as possible, which means leaving you insulated from future harm. An unethical attorney will probably leave you exposed.
AA: This simple answer is to check the bar authorities in the state where they are licensed, but that unfortunately won’t tell the whole story. I’m a big proponent of clients making sure they are comfortable with their attorney, that they match up well personally. In that regard, I think a client should be able to tell when an attorney’s moral compass is “off,” and that they might be simply chasing the next dollar as opposed to advocating for their client. I’ve turned down plenty of clients over the years who were seeking to use an attorney to cover up their misdeeds and try to deceive a court. In the end, the court usually uncovers these kinds of tactics and the client’s outcome can be catastrophic. An ethical attorney who you trust is a client’s best friend, especially when they are caught up in litigation.
PW: Ask the hard questions. When talking to your attorney, ask them hard questions, not just the ones that relate to your case, but about their value systems, because you want to understand who they are as people and who they are as lawyers. Check the state bar association to see if there have ever been any complaints lodged against them and if their ethics have ever been called into question before. Ethics matter. Absolutely reputation is paramount in this profession. An attorney with a strong reputation can get a lot more done than someone who is not seen as believable or trustworthy by their peers.
4. Does the legal profession provide sufficient data about attorney ethical violations? What could the profession do differently?
RB: Many unethical lawyers could go under the radar; they may not be known to the client and certainly not to the courts. An unethical lawyer could be charging a client too much, for instance, which could go under the radar of those in the legal world. There are the relevant bodies and companies that investigate this, but more could be done. This brings televised cases back into question, when we are thinking of in-court ethics it can be worthwhile to let the public understand how the legal proceedings within court are followed and also bent.
GF: Bar complaints are confidential. The number of lawyers being sanctioned is consistent but minimal. In Georgia, the Supreme Court sanctions lawyers and the decisions are published. I’m not aware of any statistics that the state bar maintains about ethical violations.
Due process and privacy rights hinder the state bar’s ability to police the bad apples in the barrel. It’s only the most egregious actions that end up sanctionable. Judges entering orders against attorneys seems to me to be the best way to deal with the issue.
In Georgia, judges are elected and are somewhat reluctant to take punitive measures for fear it could impact their electability. We have members of the Georgia legislature who have committed gross ethical violations. They’ve been in the news, yet they remain in power despite their ethical delinquencies. We need leadership in the administrative, legislative, and judicial branches to set a higher standard and to point out those who fall materially short on a consistent basis.
NS: I will defer to the clients to answer this question, as I am biased. My answer is yes, but clients might answer differently, and their answers are more important here.
AA: I think the information is out there, but the public has to know where to look to get discipline records. But there is also the context that goes along with discipline records that may be missing. It would be helpful for consumers to also be able to see the context of any discipline and possibly an explanation from the attorney as to what happened that led to the discipline. Also, the language that is often used on discipline websites is very obtuse for the regular public to understand, so some type of plain language explanation for non-lawyers would be helpful for prospective clients.
PW: I think the system that exists is incredibly helpful for people to understand whether or not their attorney is ethical and if they’ve ever had any sanctions. It’s important to remember that the onus is on the individual you are hiring. Is this attorney you are looking for representation and guidance from an expert in your space? If so, asking the hard questions not just taking someone at face value is important. Understanding whether they can work for your interests is important, and if they care about you in general. I wouldn’t say that we necessarily need more systemic oversight as much as we need people to understand their role in the vetting process.
About the Author
Nick Gaffney is the founder of Zumado Public Relations in San Francisco and a member of the Law Practice Today Editorial Board. Contact him at ngaffney@zumado.com or on Twitter @nickgaffney.