Vice Chancellor J. Travis Laster of the Delaware Court of Chancery gave a lecture at the University of Iowa College of Law on “Big Law Ethics”, or lack thereof, based on findings that His Honor described in the “A” trilogy of cases in which he scored the ethical lapses of several senior partners in a few of the largest and most prestigious law firms in the country.
The presentation, at the below link, should be watched by anyone interested in the role lawyers play in society.
[For those who might want to skip the introductions and preliminary comments, the core of the presentation begins at about 13:00 of the video at the above link.]
His Honor’s presentation lasted about an hour, and it’s worth watching in its entirety, but for those who may want the highlights, a few golden nuggets can be found in the following bullet points:
- Our system depends on the integrity of lawyers.
- There is a Latin maxim that translates as: Fraud destroys everything.
- Most aspects of litigation occur outside the view of the court, so the court cannot police most of what happens in litigation, such as during the discovery process
- Ethical lapses by senior partners at the largest and most prestigious law firms in the country, as described in the three Chancery decisions known as the “A” Trilogy: Akorn; AB Stable; and Anthem (one of which was 246-pages long; another over 300 pages), suggest that the problem of ethical lapses at law firms who occupy the loftiest levels of the legal profession is not an isolated occurrence, but might portend a more widespread problem.
- Litigation will not function properly if lawyers are not honest and American society in general is based on voluntary compliance with legal obligations.
- Even otherwise good people can experience moments of weakness
Three Reasons Why Good People May Do Bad Things
- Situational Dynamics: Clients can go elsewhere and most law firm partners are expected to originate business and bring in, or keep, clients. The job of a lawyer is to advance the goals of the client (though the lawyer must rise above the sometimes base or non-existent “morals of the marketplace”.)
- Cultural Norms: Lawyers are expected to be zealous advocates (though that word is not part of the ethical rules, as compared to being referenced in the comments). This can lead to “altruistic extremism” and bad behavior that they would not likely engage in if not arguing on behalf of a client. Lawyers make arguments for a living and some of the best advocates are in Big Law (among other places.)
- Slippery Slope or Ethical Fading: Minor ethical lapses, if not checked or corrected or discouraged, can lead to larger violations. The slippery slope can be flattened if minor violations are “nipped in the bud” and corrected.
Possible Solutions Suggested by V.C. Laster
- Mentorship programs to help establish positive norms and check errant behavior, along with self-policing.
- Be ready to fire a client who insists on improper actions.
- Find supportive colleagues (e.g., American Inns of Court).
- Be attentive and “look for” ethical issues, which are not always easy to recognize.
- Use cautionary tales as lessons of behavior to avoid.
- Remember that the coverup is often worse than the behavior attempted to be hidden.
Final Words of Wisdom:
- A lawyer’s top priority should be justice. The duty to the court is higher than the duty to the client.
- In the words of Justice Brandeis: sunlight is the best disinfectant