After 2 1/2 years of study and a week of heated debate, the American Bar Association (ABA) has embraced a revised Code of Professional Ethics. But the code is one that many see as confusing, perhaps self-serving, and that could be subject to judicial scrutiny.
The so-called Kutak code seems to smack of a double standard. On the one hand , it takes a strong stand for honesty between client and lawyer. It calls for lawyers to disclose situations where clients have falsified data and perjured themselves in cases where bodily harm may result. But it also permits lawyers to hold their tongues in situations where nonviolent behavior is involved, even though an attorney may be aware that a client could be engaged in fraud or cheating others out of large sums of money.
Why the apparent double standard?
Lawyers say they are faced with a dilemma. They have a responsibility to uphold the law and be truthful to the courts and the public. But they also must uphold their constitutional mandate to defend their clients with vigor and confidentiality. Thus, many don't feel they should blow the whistle on clients unless it is a life-or-death situation or the crime is so heinous that only disclosure would serve the cause of justice.
The members of the ABA's ethics commission had offered their legal brethren a tougher set of rules with fewer loopholes to sidestep ethical questions. But the association's policymaking House of Delegates wound up amending a code adopted in 1969. Thus, the carvers of the tougher code didn't get what they wanted.
The chief stumbling block was the conviction by the vast majority of the House of Delegates that the long-venerated confidential relationship between clients and lawyers should supersede other considerations.
Articulate spokesmen from the American College of Trial Lawyers (ACTL) led the effort to water down the proposed code. They insisted that inflexible ethics standards would put attorneys in the untenable position of being watchmen over clients.
The ACTL argued that a lawyer is an advocate, not a whistleblower. If he knows his client has erred, it is the lawyer's duty to dissuade him from his trespasses. If this fails, the lawyer may remove himself from the case. Further, it was pointed out that 37 states have specific statutes protecting the lawyer-client relationship. A strict code that mandates tattling at the first sign of wrongdoing could be at odds with those laws.
Obviously, code crafters didn't see it that way. Ethics commission chairman Robert Meserve, a Boston attorney, insisted: ''These rules are written not only to protect the lawyer but to protect the public.'' He suggested that if lawyers make ethical end-runs, the public won't understand or appreciate it.
New York University law dean Norman J. Redlich warned those who would weaken the code: ''Thousands of law students are about to enter this profession. As a legal educator, I don't want them to be sent this message.''
What was the message? To some of the disappointed code crafters, it was this: that a defendant in a white-collar crime is more deserving of a tightlipped lawyer than a client accused of a violent crime.
But does the new code - which sanctions a lawyer concealing the truth or at least not coming forth to report fraud - invite breaking the law? Probably not. Most lawyers are committed to veracity and ethics. And those who may not be are often inhibited from wrongdoing or from conspiring in clients' wrongful acts by criminal statutes and/or malpractice laws. Traditionally, judges deal harshly with attorneys who play fast-and-loose with the law. And the unscrupulous lawyer is often subject to informal but effective sanctions from colleagues.
Further, if some aspects of the revised code are out of sync with the law, they will eventually be corrected, one state supreme court judge says.