The landlord of an apartment complex near the university has an opening for a one-bedroom apartment. Although the apartment is desperately in need of a number of repairs, the landlord feels that with a few cosmetic touches it could be rented to an unsuspecting tenant. Eventually, a female international student inquires about any vacancies in the complex, and the landlord manages to convince her into signing a 12-month lease after a cursory walk-thru. Previously, the landlord had hired a lawyer that drafted the apartment's rental agreement in which the lawyer inserted a provision that stated the landlord has no obligation to make any repairs during the period of the lease. Although this provision is in conflict with a state statute regarding landlord responsibilities and housing regulations, the lawyer is not committing a crime. Rather, the provision is intended to mislead the tenant into believing that the lease denies her any legal claim for repairs by the landlord. After reading Why Lawyers Behave as They Do, by Paul G. Haskell. I've learned that the legal profession is not as glamorous as it may seem to the average law school hopeful. In four detailed chapters, the author provides many imaginary case examples that critically exhibit the behavior, decisions, and actions of manipulative lawyers:
1. The Behavior of Lawyers;
2. The Lawyer's Service on Behalf of an Immoral Objective;
3. The Morality of the Means; and
4. A Troubled Profession.
The author claims that the stereotypes and negative attitudes attributed to lawyers may rightly be justified by a lawyer's actions, however immoral yet fundamentally legal under the professional rules. The professional rules state that "a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor" (Haskell 19). While it is apparent that the examples provided do not always exhibit the most ethical decisions enacted by the lawyer, I can compare the hardball tactics described in the book with the supportive legal advocacy the ASOSU Law Office provides.
-Chapter one: The Behavior of Lawyers
The first chapter introduces the reader to a number of examples that exhibit why lawyers have such a bad reputation. Haskell writes that the lawyer "is perceived by the public as devious and manipulative, perhaps hypocritical or dishonest, and sometimes unconcerned with the harm done to others or to society in general" (Haskell 1). The lawyer described in the scenario above closely fits this description. Haskell presents a number of case examples based on real life events and trials that show how the professional rules affect a lawyer's behavior, although legal despite being immoral. The landlord-tenant conflict described above is based on example 11, "Inserting an illegal Clause" (Haskell 10). This first chapter is important because it seeks to explain to the reader the rationale behind such behavior, which is based upon three interrelated principles:
(1) The lawyer's relationship to the client is that of an agent and fiduciary exclusively and zealously dedicated to the advancement of the client's interests;
(2) The lawyer is unconcerned with the morality or social consequences of the client's objective;
(3) The lawyer may use all means within the professional rules to achieve the client's objective, regardless of their impact upon others or their relationship to justice (Haskell, 18).
The common thread in these principles is that the lawyer should do whatever is legally possible to ensure the best outcome for the client's objective. The lawyer, despite knowing that inserting an illegal clause in the lease is immoral, will do what it takes in the best interest of the landlord/client. It is particularly important to note the fundamental difference between "legal" and "moral" in which the latter takes into consideration the welfare of those other than the client.
-Chapter two: The Lawyer's Service on Behalf of an Immoral Objective
This chapter further examines the roots of morality and how the lawyer's professional role may compromise a moralistic dilemma. The author introduces the concept of "Role Morality" in which the lawyer is allowed to do for his client what he would not be morally permitted to do for himself (Haskell 85). Under the professional rules, the lawyer is legally protected in choosing methods of immoral conduct in order to seek the client's objective. For instance, the lawyer who drafted the lease for the landlord was acting in the best interest of the client, even though doing so would cause difficulties to the unsuspecting tenant. However, "the lawyer is morally entitled not to represent" a client whose objectives are legal but of questionable morality (Haskell 37). In this case, perhaps the landlord met with several other lawyers before finding one that would advise on how to draft a misleading rental agreement. More often than not, lawyers are eagerly representing clients whose immoral objectives may cause harm to others in society. Although the means required to fulfill the objectives may be questionable, anything can be done for a price.
-Chapter three: The Morality of the Means
This chapter explains the justification behind many of the zealous lawyer's hardball tactics and manipulative practices prior to trial through negotiations, settlements, and eventually in the courtroom. These tactics include discrediting the truthful witness, lying in negotiations, and stating the law before asking the facts, which in particular allows the client to have control over the events despite the methodology of legal reasoning. In seeking advice on how to insert an illegal clause in the lease, the landlord was informed by the lawyer of the consequences of doing so before the landlord admitted the true and factual condition of the apartment. In addition, the means employed by lawyers in their representation of clients are often morally unjustifiable. For example, a key principle, above human welfare and regardless of the consequences of silence, is the practice of lawyer-client confidentiality. "The purpose of confidentiality is to facilitate the achievement of what the client is entitled to under the law" (Haskell, 59). In this case, if the lawyer personally knew the international student renting from the landlord, confidentiality ensures that the client's information stay private. Lawyers, through zealous dedication to the interests of the client, employ means that have the purpose or effect of impeding the realization of a result compatible with the law. However, the author points out that there is an exception that the lawyer may reveal information, for example, in order to prevent a future crime from occurring by the client. For instance, if the lawyer knew that the landlord planned on collecting insurance money by purposely committing arson to the apartment complex, breaking confidentiality would be rightly justified.
-Chapter four: A Troubled Profession
The author notes that it is becoming more frequent for lawyers to practice in a manner that proves the negative stereotypes true, as demonstrated by the lawyer in the sample scenario. "The profession has become more competitive and acquisitive, causing lawyers to be more aggressive and less civil" (Haskell, 85). Haskell goes on to discuss how the "hardball" tactics are now so widely accepted and practiced…that the constraints of civility, courtesy, and decency have been forgotten in the battle on behalf of the client (Haskell, 108). Fortunately, there is an alternative method of professional practice, which Haskell refers to as the " 'justice' theory of representation" (Haskell 108). Under this theory, "there would be no reason, for the most part, to use injurious tactics" (Haskell 108). The lawyer representing the landlord could have suggested drafting a suitable lease that follows the state's statutory housing laws. This behavior would be legal, moral, and in the long run, in the best interest of the client. Haskell ends by saying that the "lawyer's purpose should be to provide the client the benefit of the law, no more and no less" (Haskell 108). Based upon my internship experiences, this purpose holds true when observing the attorneys at the ASOSU Law Office.
-Internship
The "less glamorous but no less worthy" duties described by the author exemplify the services provided at the ASOSU Law Office. These duties include but are not limited to the preparation of wills and domestic-related documents, creation and negotiation of contracts, and conflict resolution of disputes through settlements or client assistance in "litigation in a manner that minimizes offense and assists in a just resolution" (Haskell 21). Through my experiences at the ASOSU Law Office, I have truly witnessed "the practice of law at its best as a caring and productive profession" (Haskell 21). If the landlord of the apartment complex sought legal advice on inserting an illegal clause from one of the lawyers supervising my internship, the landlord would surely be referred elsewhere, which perhaps may not be fair to the landlord. The ASOSU Law Office is a service for the students of the university who are seeking legal aid. Therefore, the attorneys there are more likely to advise a client who is not seeking an immoral objective against a university student.
-Closing Thoughts
The dilemma that plagues the profession is the debate of whether legal can also mean ethical, moral, or indiscriminately just. While acting as proponents of the law, the author points out that lawyers are nevertheless allowed to "counsel or assist the client in committing a breach of contract, engaging in negligent behavior, or violating regulations or statutes that carry only civil penalties because such conduct is neither criminal or fraudulent" (Haskell 19). There are many hardball tactics, slimy maneuvers, and unethical opportunities that I hope never to practice when I become a lawyer. If there were enough intently moral lawyers, then perhaps the negative stereotypes will be broken and lawyers can be known for their notable acts of service as a civic resource.
Bibliography
Haskell, Paul G. Why Lawyers Behave As They Do. Oxford: Westview Press, 1998.
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