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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

I am glad, at last, to share in the Law School's celebration of its 25th anniversary. There is much to celebrate: In a remarkably short time, Hofstra University's Law School has achieved national recognition for the range of instruction it provides, and for its talented faculty. The school has a reputation for excellence in diverse fields, including alternative dispute resolution, trial advocacy, international law and business, media and communications law, and - of particular relevance to this audience - legal ethics. Hofstra has received praise, too, for its clinical programs.

As the Law School has developed over the span of 25 years, it has gained and retained the appreciation and high regard of its students, faculty, and administrators. This respect and caring for the school are shown by supportive alumni who encourage programs like this one, and by the continuing service on the faculty of every former Dean of the Law School. May the next 25 years bring ever more rewarding adventures in learning to this institution.

Before launching into my remarks, I want to acknowledge the grand aid and comfort I have received in framing this talk from University of Indiana law professor Bill Hodes. Bill has studied, taught, and written about legal ethics, as I have not. He and I first met when he was a gifted young student, and I, a newly tenured teacher, at Rutgers Law School. He was one of the students who urged the school, most persuasively, to introduce a seminar on women and the law, a seminar I taught. When President Clinton nominated me for the good job I now hold, Bill volunteered to work on my team, as a law clerk, during his sabbatical year. That year will be the Court's 1996 term. Bill will have the distinction of being the Court's most seasoned law clerk, and I look forward to the pleasure of his company. (I received constant assistance also, throughout the development of this text, from my 1995 term law clerk, Maria Simon, and the helpful research and careful review of 1995 term law clerks Lisa Beattie, Michael Wang, and Paul Watford.)

There is a story, not apocryphal, about a first-year class in civil procedure at a well-known eastern law school in the 1950s. The professor, a somewhat stuck-on-himself type (you know the kind), was regaling his students with accounts of a good equity pleader's skill in tripping or trapping unwary counsel for the other side. One student, bothered and bewildered, spurted out: "But Professor, ethics, what about professional ethics?" With a warm and wonderful smile, the famed professor responded, "Ethics, my boy, is taught in the second year." In truth, at the law school I first attended, ethics was an elective offered only in the third year.

This Conference bears witness to the change. As Stanford Law School's Dean, Paul Brest, recently said in a lecture delivered at Georgetown, legal ethics today is an area of legal education "on the ascendancy,"' one receiving extensive scholarly attention, a field for imaginative experiments. The speakers assembled here are leaders in new ways of thinking about and teaching legal ethics and professional responsibility. Although, along with others in this audience, I am in the student rather than the teacher ranks on topics listed in the program, I am pleased to be in such bright company.

The Conference that opened today is titled "Core Issues in Legal Ethics," but the program indicates considerable emphasis on lawyers engaged in or anticipating eventual litigation. Most lawyers, it is true, are engaged in endeavors outside the law courts most of the time. But public comment on lawyers' ethics often homes in on lawyers in courtrooms or preparing for their day or days in court. And although today's codes of professional responsibility take account of the various roles of lawyers - as counselors, negotiators, planners, transaction structurers regulation continues to bear heavily on litigation-related ethics.

This emphasis on lawyers in or anticipating litigation, as a famous Frenchman observed in his 1830s travels in the United States,2 reflects a society accustomed to resorting to court for settlement of even the most burning, divisive social issues (and, sometimes, on the other hand, the most trivial injuries). For judges to do the heavy work our society constantly entrusts or punts to them, courts must be served by lawyers whose training fosters independence. To check against bad apples and behavior unbecoming to the fair administration of justice, courts have the contempt power and many other controls, including award, reduction, and forfeiture of counsel fees, disqualification for conflict of interest, and injunctions against disclosure of a client's confidences.

Most of this checking authority is exercised by state courts. The U.S. Supreme Court will figure in the picture only when a claim is persuasively made that a State's regulation is so tight or so unwarranted as to violate the U.S. Constitution.

Because a carpenter should stick to her craft, I will address, in this pause from your Conference discussions, Supreme Court decisions reflecting the justices' perceptions of how lawyers work or should work. In the array of cases, one lead theme repeats: lawyers representing private parties are officers of the court; they are not officers of the government. They must be independent professionals, equipped to perform their part effectively in the interest of their clients, without fear of official reprisal for diligent, honorable service.

The Supreme Court, in the main, has appreciated that lawyers must have leeway to be zealous in the representation of clients, but it has also comprehended the need for limitations, for rules that preserve the order essential to a system of justice. Nebraska lawyer Robert Kutak - a principal contributor to the composition of current rules of legal ethics - put it this way shortly before his death in 1983: "It may be a dog-eat-dog world, but one dog may eat another only according to the rules." My colleague, Justice Antonin Scalia, spoke in a similar vein, but perhaps with more politesse, on lawyers and their clients. At a 1993 Supreme Court oral argument, counsel for petitioners opened on rebuttal:

"My adversary stated ....

Justice Scalia corrected:

"[Respondent's counsel is] not your adversary .... He's your friend, [your colleague at the Bar]. [The] clients [you represent] are adversaries[.]

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