- here’s our first attempt to explain the mission of ethicalEsq and to introduce the Editor, retired attorney David Giacalone
This Site: the ethicalEsq portion of this weblog is focused on news and developments relating to lawyer ethics, stressing the interests of the average consumer-client. It will report and comment — often at length — on efforts to reform (or maintain) the current rules and disciplinary system, and will collect and link to relevant web resources. The underlying question will always be whether a proposal, rule or action puts the client’s interests first. Appearances to the contrary in the real world, the “special” relationship between lawyers and clients is meant to protect clients not lawyers. The emphasis here will be the concerns of the average consumer in need of law-related services, rather than “sophisticated” clients, such as large businesses, who already have plenty of advisors and advocates. Here are some of the topics that will be covered:
- making the disciplinary process more responsive to the needs of clients
- avoiding needless costs and litigation, through the provision of unbiased information about alternative methods of dispute resolution and alternative sources of service
- giving all consumers access to the legal system and law-related services at a fair, affordable price
- protecting clients from excessive fees
A basic premise of this weblog is that being an ethical lawyer means far more than obeying the disciplinary codes. The three primary components to practicing law ethically are explained by Professor Patrick J. Schiltz, in a classic law review article., ”On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871. In brief, as described by Prof. Schiltz, those components are [emphases added]:
First, a lawyer has to comply with the formal disciplinary rules . . . . . But you should also understand that the formal rules represent nothing more than ‘the lowest common denominator of conduct that a highly self-interested group will tolerate.‘ . . . But complying with the formal rules will not make you an ethical lawyer, any more than complying with the criminal law will make you an ethical person.
Second, a lawyer must act ethically in his work, even when he isn’t required to do so by any rule. . . . For the most part, this is not complicated. Treat others as you wish to be treated. Be honest and fair. Show respect and compassion. Keep promises. . . .
Third, a lawyer must live an ethical life outside of work. . . . But being admitted to the bar does not absolve a lawyer of his responsibilities outside of work — to his family, friends, community and, if he is a person of faith, to his god. To practice law ethically, he must meet those responsibilities, which means he must live a balanced life.
Because a lawyer’s life needs to be balanced, there will occasionally be postings here that are not — or do not at first impression appear to be — directly related to Legal Ethics.
This website is not a forum for airing complaints against individual lawyers, law firms, or judges. It cannot attempt to resolve the grievances of individual clients or consumers. [* See below for help with individual complaints.]
Because the world of legal ethics and discipline mostly takes place behind closed doors and on private web pages, ethicalEsq needs the help of like-minded (or even apathetic or rabidly-opposed) folks to keep attuned to significant proposals, progress and setbacks in innumerable jurisdictions across the nation. Visitor comments and feedback will be an important part of making this little project work. Please send tips or ideas using our “Suggestions” box, or reach the Editor by e-mail at: dag(dot)law76(at)post(dot)harvard(dot)edu.
- ethicalEsq is a weblog with no commercial ties or aspirations. The Editor is active in no political movements or parties. Although the Editor believes that some personal injury awards have been outlandishly high, and that contingency fees are often unreasonable and unethical (because the attorney takes too little risk and does too little work), he is not a participant in the “Tort Reform Movement”. Also, the Editor would be shocked and unhappy to find out that he is the puppet or tool of Big Business or any particular industry.
The Editor: This weblog is edited by David Giacalone, who is affectionately known around here as both “I” and “We” (as well as Mr. Editor). I’m a retired attorney and mediator, living in Upstate New York. Because ethicalEsq has a point of view and does not pretend to be neutral, you deserve to know where I’m coming from, or at least where I’ve been. (As I explain in Ethics for the Web? Lean Don’t Lie, having a point of view, and leaning toward a particular philosophy or constituency, is not a license to mislead. I will never knowingly or recklessly ignore or hide important facts or factors in my advocacy for consumer rights.)
After graduating from Harvard Law School in 1976, I spent a dozen years immersed in antitrust law and competition policy at the Federal Trade Commission. That period left me with two beliefs that are basic to the viewpoint of ethicalEsq.
- First, professional organizations, and the ethical codes they write and purport to enforce, often needlessly stifle competition under the guise of protecting clients. And,
- Second, as with any other product or services, the consumers of law-related services are best served when there is healthy competition among providers, a broad array of options and prices, and sufficient information to permit intelligent choices. There needs to be a very good reason for depriving law clients the benefits of competition, and increasing the wealth of lawyers doesn’t quite make the grade.
In 1988, my first mid-life crisis took me from Washington, D.C., to a small city in Upstate New York, where I began a decade of practice centered in family court, mostly representing children and developing a divorce mediation practice. Seeing how law is practiced on Main Street, confirmed the beliefs that I had gained about competition as consumer protection at the FTC. More important, it left me with the lasting impression that the average consumer of legal services is often both shortchanged and overbilled — with too little respect, information and choice offered by the legal profession, and too little protection from those running the disciplinary systems that oversee lawyers.
Of course, I have known and seen many highly ethical and competent attorneys practicing in firms that cater to the American consumer, just not enough of them. Instead, I have noticed a surprising lack of competence and/or diligence, and have learned that failures to abide by the profession’s highest ideals and principles are almost always related to pocketbook issues. Primarily, no matter how an individual lawyer might prefer to operate, money (not the client) comes first in many law firms.
Although a sense of frustration over the current state of legal ethics fuels much of what appears in ethicalEsq, I intend to remain cautiously optimistic, while maintaining civility, humor, and a respectful willingness to listen with an open mind.
You can find a representative sample of my writing and thinking on topics relating to legal ethics in a number of articles written circa 2000 for now defunct website Prairielaw.com. [Confession: That Prairielaw.com photo was taken circa 1993.]
- “Counselors Oughta Counsel (Not Conceal)” (Dec. 7, 2000)
- “Pricey Contingency Fees” (2000)
- “Supersize Small Claims” (Aug. 4, 2000)
Finally, I need to make clear that the opinions expressed here are not necessarily those of my twin brother, attorney Arthur J. Giacalone of East Aurora, NY. In my opinion, he’s a prime example that a lawyer in private practice can be diligent and honest (brilliant, too), while always putting the client’s interests first.
Let’s keep in touch. s/dag
* The ABA Directory of Lawyer Disciplinary Agencies is a good place to start to locate resources for filing a grievance in your state. So is the Filing a Complaint page of HALT – An Organization of Americans for Legal Reform. If, as unfortunately often happens, you don’t get satisfaction from your local ethics watchdogs, you can find help with such problems by calling the Toll-free Hotline maintained by HALT, at 1-888-FOR-HALT or (202) 887-8255, or by visiting the HALT website.