Commentary: A Free Pass For Attorneys

It's time to end lawyers' immunity on abuse

Let's be fair: Lawyers aren't supposed to be sweet. Under the American Bar Assn.'s Model Code of Professional Responsibility, attorneys have a duty to defend their clients like Dobermans. "The advocate may urge any permissible construction of the law favorable to his client," reads Canon 7 of the code.

Lawyers like to cite that when accused of overly aggressive tactics. But it fails to take into account an important point: Lawyers don't only answer to their clients. They are also responsible to the legal system. As self-regulated professionals, attorneys are not mere mercenaries. They're custodians -- officers of the court expected to engage in civilized warfare. "While a lawyer may take steps in good faith and within the framework of the law to test the validity of rules," Canon 7 continues, "he is not justified in consciously violating such rules."

These competing pressures -- to serve clients and the court -- are not evenly balanced, as the tactics of Boeing's lawyers amply demonstrate. All too often, corporate attorneys forget their duties to the system and do whatever it takes to win. It's no mystery why: Duty to clients is enforced by zealous in-house lawyers while duty to the courts is monitored by lax judges and state bar associations. Until these cops walk their beats more aggressively, there's little reason to think lawyers will behave better.

In theory, attorneys who hide evidence and abuse attorney-client privilege are subject to serious sanctions. Judges can slap them with fines and toss out their clients' cases. Bar-association disciplinarians can drive them out of the guild -- and even recommend criminal prosecution.

But discovery abuse almost always receives mild sanctions -- especially when committed by large law firms and counsel for prestigious companies. "There is always a level of politesse among elites," says Susan P. Koniak, a professor of legal ethics at Boston University School of Law. "Once lawyers and law firms reach a certain status, they almost become above reproach."

It's a problem that goes beyond the hardball of class actions. Lawyers played key roles in the collapse of Enron, Tyco International (TYC ), Global Crossing (GLBCE ), and others. Yet almost alone among other pros, they've paid a comparatively small price for their misdeeds. Why? It's not because they behaved better but because their machinations are harder to discover and harder to explain to the public. So auditors, analysts, mutual-fund managers, and investment bankers watch their steps more closely these days. But for attorneys, it's still business as usual.

By Mike France

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