Can lawyers be happy?

[garbon]

I think any product manager who doesn't know they shouldn't do off-label promotion deserves jail time.

[garbon]

That said, I though we were discussing actions by lawyers vs. client actions. All of that is still what the client did unethically/illegal;y or not.

[Admiral Yi]

Then there are the cases where the lawyers' interests don't align with the "clients."

I'm thinking specifically of bullshit class actions and those guys who offer to help you out with the IRS.

[Barrister]

But then he attributes it to a conflict between making your client happy, and practising law.  There is rarely that big a conflict. CLients long-term interests are best served by acting in a legal and ethical manner.

That strikes me as one of those "useful fictions" people tell themselves because it would be really great if it were actually true.

I am not sure what you mean.  Are you suggesting it is not in everyone's best interests to act in a legal and ethical manner?

I am suggesting that it is sometimes in the best interests of the client to act in a manner that is not legal or ethical. Especially the latter, and most especially when you use the term "ethical" in the common broader sense that society uses it, as opposed to the narrow sense lawyers use the term so they can maintain their useful fiction.

Some more assumptions you seem to be making that I am usure of.

Please explain your understanding of the "narrow sense" lawyers use the term "ethical" and how that differs from the way it differs form the manner is which society uses it.

Many things that those of us non-lawyers would consider to be unethical lawyers would define as ethical because their definition of the term is intentionally narrow so that they can in fact do exactly what the OP was talking about when he said that lawyers get depressed at doing things that are kind of shitty.

For example, lawyers might argue that the company they represent really should be allowed to pollute some river with toxic waste, because Law XYZ that prohibits said dumping has some loophole in it. It is in the best interests of the lawyers client that they be allowed to dump said chemicals, and doing so is in fact rather unethical, but it is the job of the lawyer to represent their clients interests.

Please note I very purposely said "long term" best interests.

You can absolutely get an advantage to your client by acting in an illegal or unethical manner.  But that is invariably a short term advantage.  Your character becomes known.

To take your example - perhaps the company is allowed to pollute the river.  For now.  But if it is clearly a pollutant that law is not going to stand for long, and of course your client's reputation will take an enormous hit.

Also, you still havent explained what you mean by the phrase"useful fiction" you keep using.   Is your assertion that lawyers act unethically and pretend otherwise?

Exactly.

They do things that they know pretty much suck, but that is their job - to represent their clients. So they create this fiction that helping their clients is, by definition, the ethical thing to do, or conversely say things like "It is always in the best interests of the client in the long run to act in a legal and ethical manner" which simply is not true in many cases. I can easily imagine many situations where the best interests of the client may be better served by a lawyer acting in an illegal manner. That doesn't mean they should, of course.

But it is one of those things that we want to be true, so we pretend that it is true.

And I will concede right now that there is no way I am going to ever get you to admit that it isn't true, but I am ok with that.

I actually can not see a situation where, in the long run, a client is better served by having their lawyer act illegally.  That kind of thing will be found out and it will, in the end, be very, very, very bad, for both the lawyer and the client.

[Malthus]

That said, I though we were discussing actions by lawyers vs. client actions. All of that is still what the client did unethically/illegal;y or not.

What the lawyer typically does in this courner of the practice is advise the client as to what the client can or cannot do.

In this aspect of the business, unethical/illegal acts by the lawyer him or herself, without client participation, are almost always going to be contrary to client interests. The debate, as I understand it, is that lawyers advance the interests of their clients by doing illegal or unethical things - in this context, meaning advising the client to do (or how to do) illegal or unethical things.

[crazy canuck]

Then there are the cases where the lawyers' interests don't align with the "clients."

There I think you have a point worth pursuing.

[Berkut]

You have fundamentally misunderstood what BB meant.  I suspect purposefully given your world view that lawyers knowingly act in an unethical manner because they believe it will benefit their client.

No, I think I perfectly well understand what he meant, and I think you perfectly well understand what I mean, and have no real response to it.

The fact is that it is NOT the case that there is some happy correlation between the best interests of the client and what is legal and ethical. That is simply not true. I can trivially come up with cases where the best interests of the client may be better served by the lawyer doing something illegal or unethical. Hopefullly the lawyer does not, but the "useful fiction" that they CANNOT do something unethical or illegal to serve the best interests of their client because there is some basic truism that in any and all cases

best interests of the client == that which is legal and ethical

is clearly bolllocks.

Often, the true tension/conflict is between some short-term interests and the long-term interests of the company as a whole.

To provide a practical example: in the field of drug regulation, it is clearly in the short-term interests of a product manager for a drug to promote that drug in ways that are legally and/or ethically dubious, because more sales = more money, and more money = bigger bonus, promotion, and reward for the product manager.

However, it is generally *not* in the long-term interests of the company as a whole, as the company takes a reputational hit with the regulator if its dubious dealings are discovered, and faces potential retaliation in the form of fines, prohibitions, and increased regulatory scrutiny that goes beyond the single drug being marketed - indeed, may have impact inother countries (as the regulators all talk to each other and some, like the US, are notoriously extra-territorial about such matters as the Foreign Corrupt Practices Act and the Sunshine Act).

The manager in question may be perfectly willing to take the risk - job turnover is relatively rapid and by the time the unethical/illegal behaviour is discovered, he or she may well have collected his or her bonus, left the company, and gone to work for the competition.

That is a good example, but of course it is specific to the situation.

You could have a very similar situation where an honest and objective analysis of the risks and rewards may very well indicate that you are better off going ahead with the dubious practice.

And the same, I think, is sometimes true for lawyering, both civil and certainly criminal. I am sure there are cases where it would be in the best interest of a defendant for their lawyer to act in an unethical or even illegal manner (hiding evidence, etc., etc.).

If I can get my client off of a death penalty by doing something illegal or unethical, then it is certainly in my clients best interests that I do so, right?

Hell, isn't it pretty easy to come up with a simple counter-factual?

Note that I am not trying to blanket indict lawyers by any means - just pointing out that I could certainly imagine that some people might not be good at dealing with this tension between what is good for everyone other than their client, and what is good for their client, and hence could see how it could result in stress/depression, etc., etc.

The idea that this could not happen because "serving the best interests of the client in the long run is always perfectly aligned with what is legal and ethical!" seems almost comically naive.

[DGuller]

As I was reading Berkut's posts, I am reminded of some story where a couple of lawyers knew for 20 years that an innocent man was in prison, but they couldn't reveal it because that would be against their client's interests.  These lawyers did act ethically, though, and they did serve their client's interest. 

[Berkut]

But then he attributes it to a conflict between making your client happy, and practising law.  There is rarely that big a conflict. CLients long-term interests are best served by acting in a legal and ethical manner.

That strikes me as one of those "useful fictions" people tell themselves because it would be really great if it were actually true.

I am not sure what you mean.  Are you suggesting it is not in everyone's best interests to act in a legal and ethical manner?

I am suggesting that it is sometimes in the best interests of the client to act in a manner that is not legal or ethical. Especially the latter, and most especially when you use the term "ethical" in the common broader sense that society uses it, as opposed to the narrow sense lawyers use the term so they can maintain their useful fiction.

Some more assumptions you seem to be making that I am usure of.

Please explain your understanding of the "narrow sense" lawyers use the term "ethical" and how that differs from the way it differs form the manner is which society uses it.

Many things that those of us non-lawyers would consider to be unethical lawyers would define as ethical because their definition of the term is intentionally narrow so that they can in fact do exactly what the OP was talking about when he said that lawyers get depressed at doing things that are kind of shitty.

For example, lawyers might argue that the company they represent really should be allowed to pollute some river with toxic waste, because Law XYZ that prohibits said dumping has some loophole in it. It is in the best interests of the lawyers client that they be allowed to dump said chemicals, and doing so is in fact rather unethical, but it is the job of the lawyer to represent their clients interests.

Please note I very purposely said "long term" best interests.

You can absolutely get an advantage to your client by acting in an illegal or unethical manner.  But that is invariably a short term advantage.  Your character becomes known.

That is rather vague - why should your client care about your character? And perhaps any long term hit to the character of the laweyer or client is adequately outweighted by the short term benefit.

To take your example - perhaps the company is allowed to pollute the river.  For now.  But if it is clearly a pollutant that law is not going to stand for long, and of course your client's reputation will take an enormous hit.

Laws that allow companies to pollute because they are not effective stand for long all the time. That is why we have lots of polluted rivers and lakes.

And clients seems to survive these "reputation" hits just fine. After all, they have (often) entire PR departments whose job it is to manage that as well.

You are sounding more and more naive Beebs. Companies do crap that pollutes the environment all the time - if the primary deterrent is a hit to their reputation, we wouldn't need laws that they then hire lawyers to figure out how to get around.

Also, you still havent explained what you mean by the phrase"useful fiction" you keep using.   Is your assertion that lawyers act unethically and pretend otherwise?

Exactly.

They do things that they know pretty much suck, but that is their job - to represent their clients. So they create this fiction that helping their clients is, by definition, the ethical thing to do, or conversely say things like "It is always in the best interests of the client in the long run to act in a legal and ethical manner" which simply is not true in many cases. I can easily imagine many situations where the best interests of the client may be better served by a lawyer acting in an illegal manner. That doesn't mean they should, of course.

But it is one of those things that we want to be true, so we pretend that it is true.

And I will concede right now that there is no way I am going to ever get you to admit that it isn't true, but I am ok with that.

I actually can not see a situation where, in the long run, a client is better served by having their lawyer act illegally.  That kind of thing will be found out and it will, in the end, be very, very, very bad, for both the lawyer and the client.

Wow. I can trivially come up with situations. All you have to do is imagine, for example, that "that kind of thing" *won't* be found out in the long run. I am quite certain that we do not have a 100% illegal activity detection and resolution mechanism for actions by lawyers, any more than we do for any other class of people.

And this is ignoring, of course, the reality that so much of legal activity is not strictly legal/illegal anyway, but rather grey, and indeterminate - especially when it comes to what is not strictly legal or illegal, but rather what is ethical.

I certainly hope it is NOT the risk of being caught that is all that is stopping most lawyers from acting illegally or unethically. If so, we are in much worse condition that I thought.

[Barrister]

That is a good example, but of course it is specific to the situation.

You could have a very similar situation where an honest and objective analysis of the risks and rewards may very well indicate that you are better off going ahead with the dubious practice.

And the same, I think, is sometimes true for lawyering, both civil and certainly criminal. I am sure there are cases where it would be in the best interest of a defendant for their lawyer to act in an unethical or even illegal manner (hiding evidence, etc., etc.).

If I can get my client off of a death penalty by doing something illegal or unethical, then it is certainly in my clients best interests that I do so, right?

Hell, isn't it pretty easy to come up with a simple counter-factual?

Note that I am not trying to blanket indict lawyers by any means - just pointing out that I could certainly imagine that some people might not be good at dealing with this tension between what is good for everyone other than their client, and what is good for their client, and hence could see how it could result in stress/depression, etc., etc.

The idea that this could not happen because "serving the best interests of the client in the long run is always perfectly aligned with what is legal and ethical!" seems almost comically naive.

Let's take hiding evidence.  Trouble is that unless you're already facing the death penalty, the penalty for destroying evidence / witness tampering is invariable much, much worse than whatever charge the person is facing.  And, the fact that you've gone ahead and tried to destroy evidence can actually be used against you in the trial of the original charge.

I stand by my statement - acting illegally and unethically is bad for your client in the long run.  Sure, I can think of all kinds of examples where it might be good in the short run or in a one off.  As a one off situation, maybe forging a little evidence will be good for you and your client.  But such actions are almost never a one off.  And as soon as it goes from an isolated instance to a ongoing business practice, you and your client are in trouble.

[Barrister]

Laws that allow companies to pollute because they are not effective stand for long all the time. That is why we have lots of polluted rivers and lakes.

And clients seems to survive these "reputation" hits just fine. After all, they have (often) entire PR departments whose job it is to manage that as well.

You are sounding more and more naive Beebs. Companies do crap that pollutes the environment all the time - if the primary deterrent is a hit to their reputation, we wouldn't need laws that they then hire lawyers to figure out how to get around.

No.  Pollution happens not because companies are running around sneaking their toxic chemicals into lakes and rivers all while twirling their mustaches, Snidely Whiplash-style.

It happens for a wide variety of reasons - that the chemical isn't agreed to be a pollutant, that it's seen as being a "cost of doing business" which employs many people (aka the Ft McMurray explanation), that it's only in combination with the emissions from others that it becomes problematic.

It's quite possible to act legally and ethically while representing, say, BP during the Gulf Coast spill.

Now, I'm using terms like "ethically" in the sense that most people would understand them.  I am sure to a certain fringe, they would suggest you can never, ever do anything to assist a company like BP without being inherently unethical. 

[Berkut]

Laws that allow companies to pollute because they are not effective stand for long all the time. That is why we have lots of polluted rivers and lakes.

And clients seems to survive these "reputation" hits just fine. After all, they have (often) entire PR departments whose job it is to manage that as well.

You are sounding more and more naive Beebs. Companies do crap that pollutes the environment all the time - if the primary deterrent is a hit to their reputation, we wouldn't need laws that they then hire lawyers to figure out how to get around.

No.  Pollution happens not because companies are running around sneaking their toxic chemicals into lakes and rivers all while twirling their mustaches, Snidely Whiplash-style.

Of course not - most pollution happens in a perfectly legal manner. That doesn't mean it is ethical though...unless you use that "lawyer definition" of the term that simply states that if the law allows me to figure out a legal way for the company I represent to dump those chemicals in the water, then in fact it is ethical that I help them do that.

Again, it is a useful fiction to pretend that it is really "ethical" to do that.

It happens for a wide variety of reasons - that the chemical isn't agreed to be a pollutant, that it's seen as being a "cost of doing business" which employs many people (aka the Ft McMurray explanation), that it's only in combination with the emissions from others that it becomes problematic.

Of course - the issue of pollution is complex, with lots of variables involved, which is why it is a great place for lawyers to do their thing and figure out how to allow companies to pollute more. It is perfectly "ethical" for them to do so from the stance of the profession, but not from the stance of society at large.

It's quite possible to act legally and ethically while representing, say, BP during the Gulf Coast spill.

Of course it is - it is also quite possible to act illegally and unethically while representing BP, and to do so because it is in the best interests of BP that you do so. I am not arguing that you cannot represent BP ethically and legally, I am arguing that your claim that you CANNOT represent them in an unethical and/or illegal manner without violating their best interests is not true.

OF course, your argument has a much higher bar for proof than my own, since it is an absolute argument.

Now, I'm using terms like "ethically" in the sense that most people would understand them.  I am sure to a certain fringe, they would suggest you can never, ever do anything to assist a company like BP without being inherently unethical. 

I think most people would understand the term "ethical" to encompass more than simply serving the interest of some company. Your argument here is pretty much circular.

BP can and will argue, for example, that they should not have to pay some amount of restitution for their spill - they will argue that the dollar amount should be X instead of Y. Their lawyers will use their lawyerly skills to argue for their client based not on what is just or ethical for society at large, but rather what is in the narrow best interests of BP. That is how it should be.

The idea that somehow it is innately true that whatever is best for BP is by definition whatever is ethical and legal is simply naive - like I said, a "useful fiction" created to make what is a pretty ugly system in some of the particulars a little more palatable. It may very well be in BPs best interests to screw over society and leave someone else holding the bag for their mess, and their lawyers will be called upon to argue exactly that if they decide that is what is best for BP.

[Rasputin]

As I was reading Berkut's posts, I am reminded of some story where a couple of lawyers knew for 20 years that an innocent man was in prison, but they couldn't reveal it because that would be against their client's interests.  These lawyers did act ethically, though, and they did serve their client's interest. 

more than ethical in most states it would have also been an illegal for the lawyers to disclose what a client said in confidence. The issue is the our system often has rules that themselves are in conflict with each other. At the extremes they create anecdotally bad results but on the whole are believed to accomplish a greater good.

If all clients know that their lawyers take their secrets to the grave then clients are more likely to be fully honest with their lawyers who then have some ability to convince their clients to follow the law or do the right thing in the absence of an applicable guiding legal principle.

In your example, absent the attorney client privilege those two lawyers would have never known who the real killer was in any event.

Knowing your clients secrets can be a burden but it is in fact the cornerstone of our system.

[Admiral Yi]

If all clients know that their lawyers take their secrets to the grave then clients are more likely to be fully honest with their lawyers who then have some ability to convince their clients to follow the law or do the right thing in the absence of an applicable guiding legal principle.

This particular advantage doesn't have much relevance in this specific case.

[Barrister]

Berkut, you seem to be coming from a point that says "ethical is whatever I think is right, and unethical is whatever I think is wrong".

The starting point of the adversarial legal system is that everyone deserves representation.  BP, Jeffrey Dahlmer, you name it.  And representing those kinds of bad guys is clearly not popular.  But there is an ethical, and an unethical, way to do it.

The ethical way to represent BP (which I understand they generally did) was to admit to a mistake, promise to pay to make it right, and to try and expedite any and all compensation.  There's nothing wrong with not just opening up the checkbook though, but to maintain some control over what gets paid.  The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.