Review: The Moral Compass of the American Lawyer

Title: The Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed
Author: Richard Zitrin and Carol M. Langford
Publisher: New York: Ballantine Publishing Group, 1999
ISBN: 0-449-00671-9

While many think it paradoxical that the word "moral" and "lawyer" could ever appear together in the same sentence, Richard Zitrin and Carol M. Langford have written a book that explores moral issues lawyers face. The Moral Compass of the American Lawyer, using actual cases, articles, studies, and fictitious situations, examines a lawyer's duty to represent a client while maintaining ethical commitments of truth and justice to themselves and the public.

The purpose of the book is less than clear. It is not meant to be purely educational. As a reference or a research tool it falls short: many of the cases mentioned are not even cited by case name, and many of the anecdotes are stores from newspapers such as the New York Times and the Boston Globe. It doesn't offer enough guidelines to be rigorously instructional.

The book certainly serves as a vehicle for the authors' own views. Their opinions are staked boldly, often maverickly, but often neglect to impart the logical framework that supports those ideas. When discussing a lawyer's solicitation to family members of the TWA Flight 800 victims' family members, for example Zitrin and Langford blatantly call such actions "egregious conduct" that should not be excused (128), without fully explaining their position and listing the reasons for opposing opinions.

Moral Compass is furthermore not an examination of morals and how they should be determined. There are no studies of a priori versus utilitarian arguments for actions, and no appeal to moral philosophers of the past. The authors rather assume the reasons for their positions are self-evident; in some cases their reasons are easily visible, but in other cases the arguments are far from evident or, if evident, not completely persuasive.

The closest categorization for this work may be that it is a discussion starter, the groundwork for jumping into the debates surrounding ethics in the legal profession. Such a view makes sense: the authors teach ethics classes at several law schools in the San Francisco Bay Area, and they will be using the book to supplement discussions two days from now in my first-week law classes.

Richard Zitrin and Carol Langford have created an engrossing read on the lively debate surrounding attorneys and ethics. Its subtitle, Truth, Justice, Power, and Greed, indicates the wild, intriguing nature of real court cases that can be found within its pages. Just be aware that the "moral compass" it aspires to provide may be more a reflection of the authors' ideas than a result of a rigorously defined framework for deciding ethically tough decisions.

Notes

The authors note that "legal thinkers from Dr. Samual Johnson to Alan Dershowitz" espouse the "adversary theory", claiming "that when lawyers do their utmost to represent their clients 'zealously,' Justice somehow triumphs" (3).
In one case that involved the conflict between representing a client and portraying the true course of historical events, the Michigan ethics committee declared that, "Although the tenor of this opinion may appear to risk an unfortunate result to society in the particular situation posed, such an attitude by defense counsel will serve in the long run to preserve the system of criminal justice envisioned by our constitution..." (35).
"A far better solution than [civility codes that suggest acceptable lawyer behavior] is... through the judicial use of issue sanctions... where one side's breach of the discovery rules is sufficiently great. These sanctions mean that the judge decides contested issues in the case against the side that engaged in the discovery abuse... In contrast to sanctions that merely cost money, issue sanctions work because they have a direct effect on the outcome of a case—an outcome adverse to the party hiding the discovery" (66-67).
One person fighting a SLAPP (Strategic Lawsuit Against Public Participation) in 1988 was Joan Almond, a self-described "little old country grandma" spoke out against Carolina Solite Corporation burning hazardous waste, resulting in a dusty film on her vegetables" (70).
In a 1995 article in the ABA Journal: "If hourly billing is the financial engine of most law firms, the duty of zealous representation... is the gas pedal" (81).
Zitrin and Langford claim that, "While there are strong historical and social bases" for an individual's right to the attorney-client privilege, this should not apply to a corporation because, "Any information told a corporation lawyer is provided not by the company itself but by individuals... who speak on behalf of the corporation" (100). This seemingly fallacious argument seems similar to saying that contracts in which one party is a corporation is different than contracts between individuals, because in the former case an individual is speaking on behalf of a corporation.
The authors mentions a "relatively new concept" named the "self-evaluative privilege" that would keep corporate self-audits confidential (105). The book fails to explain if this is a new statuatory rule or some application of existing law.
The authors blatantly call solicitation to family members of the TWA Flight 800 victims' family members "egregious conduct" that should not be excused, as if the story of the the Ohio plaintiff's lawyer Richard H. French makes this conclusion self-evident (128-129).
The restatements of the American Law Institute (ALI) apparently "carry considerable weight with many judges in many state", but it is unclear how they could carry any weight if their interpretation is known to alter a statute's semantics—whatever the standing of a restatement's author(s), the restatement surely could not advertently override legislational semantics (139).
"While tort reform advocates cites the vast numbers of cases clogging our courts, the overwhelming majority of court filings are traffic citations, and the second largest group is criminal cases. The most recent statistics from the National Center for State Courts show that tort cases make up less than 3 percent of all non-traffic-related filings, and are well under 10 percent of all the civil cases filed" (140)
"In the mid-1990s New York became the first state to set up a system capable of disciplining entire law firms for unethical conduct... [T]he New York City bar, which led the fight for law firm discipline, focused on two points: first, law firms develop their own cultures, which have a substantial effect on the ways their attorneys practice law; and second, an entire law firm should be accountable for the behavior of all its lawyers" (178). The latter point seems inconsistent with the authors' belief that the attorney-client privilege should not extend to entire corporations (1001).
Zitrin and Langford claim that the Fentress case, in which the attorneys for both sides had a secret agreement not to introduce evidence of previous coverups by the drug company Lilly, the plantiff "offered disinformation about those dangers, by bargaining away the use of important evidence" (201). This seems to be hyperbole: the evidence the use of which was "bargained away" was not evidence about Prozac, the drug in question, but of Lilly's handling of Oraflex complaints. Perhaps the authors mean that the settlement agreement's inclusion of all the prosecuting attorney's Prozac cases (200) was somehow offering of disinformation. Nevertheless, it seems a stretch that the "bargaining away the use of important evidence" is in any way "disinformation" in a direct sense.
Strangely, "many jurisdictions allow a judge to approve a settlement even if every single named representative objects, despite the fact that the representatives are supposed to speak on behalf of the entire class" (220).