243. "What's Wrong?" New York Times, (February 14, 1994). Op-Ed Page.
Young children cannot tell right from wrong. If you scold a 3-year-old for lying, he may not have the foggiest notion why you are distressed. A new report by the American Bar Association’s Committee on Ethics and Professional Responsibility is written as if a significant number of lawyers had failed to progress beyond this infantile state.
The committee found it necessary to expound elementary ethical notions. If a lawyer is being paid by a client for a cross-country flight and she “decides not to watch the movie or read her novel, but to work instead on drafting a motion for another client,” she may not charge both for the same hours. If a law firm pays an economist $200 an hour for her services as an expert witness, it may not bill the client $250 an hour. The document even declares, as if it needed declaring, that “a lawyer is never justified in charging a client for hours not actually expended.”
The A.B.A. report says precious little about why lawyers should refrain from various forbidden practices. To the extent that reasons are provided at all, they suggest that ethics are good for the profession’s image and therefore good for business. The billing practices of some lawyers contribute to the “discouraging public opinion of the legal profession,” the report says. The resulting lack of trust will deter a “layman from utilizing the legal system.”
To be fair, even quite a few ethics professors adhere to such “utilitarian” or “consequentialist” notions. Their idea of a “calculus of harm” suggests that you should tell the truth only as long as the benefits of veracity exceed those of dissembling (although you are to take into account that lying diminishes the total stock of trust in the society in which you must live).
But such expedient ethics, on which the A.B.A.’s new document seem to be based, are hardly a reliable basis for a professional code. If circumstances change - say the spotlight of public scrutiny turns to some other profession - lawyers may well return to double billing. Or if the penalties for violating the new code turn out to be minimal, lawyers may well ask what they have to lose.
The lawyers who fashioned the code may well have nobler intentions. And it does provide a rather clear list of do’s and don’ts. What is missing is an anchor: a firm commitment to doing what is right because it is the right thing to do, whether or not it increases one’s billings and bonuses.