To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This Article takes a different approach; it listens to the taciturn.
This Article draws insight from when the bar chooses to be silent in the face of widely known violations of the law of lawyering. Examples of such transgressions are varied. Criminal defense lawyers may barely glance at files before appearing for a client. Big-law firm attorneys routinely use delay, burden, and harassment as tactics against other private adversaries to pursue client goals. Public interest lawyering may prioritize the development of favorable case law and institutional goals over individual client-driven ends. These are not secrets—they are almost truisms.
In probing silence so described, this Article questions the profession’s commitments to a uniform code of conduct and adds to the debate on the “standard conception” of lawyering. This inquiry reveals that lawyers have a more nuanced sense of professionalism than what one finds in the rules of professional responsibility; it is one tempered by context, competing duties, alternative regulatory systems, economic realities, and an ongoing commitment to lawyers as stewards of justice.
INTRODUCTION
Silences can be as revealing as declarations. Meaning can be found in both. Scholarship in legal ethics often focuses on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of restatements. It neglects what is not said—spaces where silence reigns. This Article takes a different approach; it listens to the taciturn.
This silence lies in the places where widespread violations of the law of lawyering are clear and known, and the bar does not discipline the attorneys involved. Silence so described is not about undetectable violations or unclear rules. It is about when clear rules are being violated and the bar chooses to do nothing to curtail the practice. It is about the choice not to enforce rules of conduct. Clear, pivotal, uncontroversial rules governing lawyer conduct. Clear, widespread violations of those rules.
To listen to silence, this Article interrogates zones where we would expect cacophony: places where norms of practice openly and routinely flout rules of conduct. With limited exceptions, the law regulating lawyers as written applies generally to all lawyers regardless of practice area or client type.1 In reality, there are pockets of legal practice where the bar recognizes that the usual rules do not apply as written (or apply differently). Conduct that would be condemned in one practice area is often overlooked in another. Criminal defense lawyers for the indigent often spend far less time communicating with clients and preparing for motions than their private sector colleagues. Big law firms routinely use burden and delay as litigation tactics. Facts from some of the most important public interest lawsuits of the past century remind us that public interest lawyers may prioritize broad public policy concerns over individual client goals.2 These deviations from professional responsibility rules are not secrets. And yet, this conduct is largely met by silence rather than condemnation, sanctions, or additional regulation.3
This Article explains the work this silence is doing. What does the bar’s silence in these areas tell us about the profession, its norms, and its values? When we interrogate this silence, it reveals a more complex story than the rules as written about how lawyers conceive of their professional identity, weigh duties to clients, duties to rule of law, and duties to civil society. Rules may appear blind to the identity of the lawyer or client, the practice area, and the economic and societal pressures that surround their relationship, but the lawyers enforcing the rules of practice are not. Silence accomplishes recognition of legal realities where the express rules of professional responsibility would fail. As such, it is an intricate narrative of the bar’s conception of lawyers’ role in the American legal structure—not purely as technocrats or business persons, but also as broader stewards for the rule of law.
Listening to silence lends new insight into foundational debates in the field of legal ethics (should the rules of lawyering be specialized or not? Is duty owed to clients above all?) and opens new avenues of exploration. Part I outlines the unitary requirements of the law governing lawyers. This is a set of rules that, on its face, generally applies equally to all lawyers and in all areas of practice, regardless of their client base.
Part II outlines three specific examples of silence as earlier defined: a failure to discipline in the face of widely known rules violations. These instances juxtapose the premise of a unitary, ethical body with professional responsibility as practiced, but which silence shows is context specific. It explores areas of legal practice where gaps exist between the rules and the practice: institutionally induced limitations on competence and diligence in indigent criminal defense practice, burden, delay and conflicts issues in large scale private practice, and imperfect client autonomy and communication in public interest representation.
Part III probes why misconduct in these areas exists, examining limitations on lawyer autonomy, economic pressures, and correlations with alternative regulatory structures. The Article concludes by evaluating silence. It recognizes that it is tempting to advocate for full enforcement, to seek to eradicate the unsaid. However, silence allows the bar to work with a nuance and pragmatism that currently eludes direct codification. Thus, the best solution, to the extent one views the code of silence as problematic, is not to rewrite the positive code but to develop and augment the common law of lawyering. This type of law has the flexibility and gradations needed to reflect the professions’ actual commitments to fairness, equity and the public good—as well as fidelity to clients and their causes of action.
The silence of the bar in these areas reveals that lawyers do not practice under a single code of conduct, but many practice-specific codes based on assessments of the particular issues involved in lawyering in each area. This practice-specific norm indicates complex relationships with clients and the law. It reveals that lawyers as a group are ambivalent about client-centricity as a generalized matter. Silence indicates that lawyers can—and do—at times prioritize the good of clients (as a group) over the client (specifically) and at minimum have no interest in uniform applicability of rules to all types of clients (paying or not). Moreover, it is not only the nature of conduct that leads the bar to punish lawyers; it is also the power of lawyers within the structure of the bar that impacts self-regulation. These norms of practice, unlike the rules as written, recognize lawyers and clients as real parties that face practical, financial, and political constraints. Thus, silence considers client and institutional resources while recognizing lawyers as having a unique role in developing and implementing the law itself.
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