Legal Ethics

Red Flags: A Lawyer’s Handbook On Legal Ethics, By Lawrence J. Fox and Susan R. Martyn, ALI-ABA 2005 Hardcover 314 pages

Reviewed by Heidi Boghosian

Adhering to the rules of legal ethics doesn’t always serve justice. No one knows this better than Henry Drake, who spent 12 years on death row after being falsely accused and convicted of killing a 76-year-old barber in Colbert, Georgia in 1975. The attorney representing the man who actually committed the crime knew of Mr. Drake’s innocence from conversations with his own client. However, the lawyer abided for years by the attorney-client confidentiality rule as he appealed his own client’s sentence term. He said he was just doing his job.

This example illustrates the complexity of legal ethics. In practice the rules can be counterintuitive. Other applications of the rules can be murky. Red Flags: A Lawyer’s Handbook On Legal Ethics, by Lawrence J. Fox and Susan R. Martyn, offers an inventive approach—a cheeky “Miss Manners meets Father Confessor” question-and-answer format—to subject matter that is taught unimaginatively, and mostly ineffectively, in law schools. In this format, hypothetical lawyers get the chance to sound woefully clueless in fully disclosing and seeking advisement and atonement.

The colloquial tone of the lawyers’ questions makes for a fun read, such as this thinly veiled question from the landmark ethics case Spaulding v. Zimmerman:

Damnedest thing. I’m handling this auto accident case for the insurer. I sent the plaintiff for a physical to our doc. Our doc tells us the plaintiff’s expert has it all wrong. The plaintiff’s injuries are much worse. The young kid has an aneurysm—a dangerous weakening of an artery. It might’ve been caused by the accident. So I call the insurance company. They say, whatever we do, we should not tell the kid’s lawyer about the problem. It would turn a $10,000 case into a damage disaster. I gotta tell you, I’m worried about that kid.

The refreshing cleverness and humor that abounds in Red Flags is an example of one way that law schools might try to be more creative in integrating the rules of ethics into their curricula. In “The Privilege Boilerplate” question the questioner boasts that all outgoing faxes and e-mails have a legend on them indicating that they are privileged and confidential:

We are impressed. Every time the deli gets your firm’s order for three corned beef sandwiches it is informed that this information is privileged and confidential with that ominous warning. We are sure they won’t tell anyone how many of the sandwiches were on rye bread.

You see, putting the legend on everything is worthless.  If everything is labeled privileged and confidential then nothing will be considered worthy of that status. …Labeling privileged something that is not privileged does not make it so; labeling something privileged that should be privileged will help accomplish your goal.

And how to remember if a lawyer can represent both buyer and seller in a seemingly simple real estate transaction when both have agreed on the terms of sale?

Think termites. If buyer and seller have not decided whether the agreement will include a termite clause, or a financing clause, or any other material issue that you reasonably believe you would have to raise with either buyer or seller if you were representing that party alone, then the joint representation will put you in an impossible conflict of interest situation, and you must decline to represent both parties.

The chapter “When You Must Say No” reads like a game of Clue:  “The Lying Tax Auditee,” “The Scared Defendant,” “The Misguided Expert,” and “The Campaigning DA” are just a few of its cast of characters. The “Sexist Opponent,” who repeatedly refers to opposing counsel as a “girl lawyer,” can be stopped in his tracks by colleagues assisting the court in pointing out that attorneys have been sanctioned, lost fees, and been disciplined for engaging in such behavior. “It diminishes the system of justice to have lawyers disparage their colleagues, and it is up to the judge, if the conduct occurs in the courtroom, to correct the situation.” The authors recommend asking the court, on the record, and repeatedly if needed, to instruct the attorney to call opposing counsel by her name.

Lawyers must say “no” to cruising internet chat rooms in search of business. In California an audacious personal injury lawyer inserted herself into a chat room for victims and families of a mass disaster, introducing herself as an attorney and offering to answer questions. Should attorneys be allowed to cruise internet chat rooms dealing with health problems of the elderly? “Maybe we’ll pick up a few clients that have taken some of these dangerous drugs…” The authors remind us that states are free to ban in-person solicitation, including targeted telephone calls: “The recently revised Model Rules conclude that real-time electronic conversations are more akin to [in-person solicitation than to phone calls.]”

Finally, we get additional advice and perspective on topics such as triangular relationships, ancillary businesses, multidisciplinary practice, and the respective roles of supervisory and subordinate lawyers. We finish on a humbling note: the high percentages of lawyers who have depression, alcohol problems, or other behavior disorders, and the obligation to seek guidance to assist troubled colleagues. “Helping colleagues as well as helping clients is an unavoidable and often rewarding part of the collaborative practice of law. In representing clients as well as in assisting colleagues, collaborative lawyers consider both their personal values and the values embodied in the law.” If the good humor in Red Flags nudges more lawyers to instill values into their livelihood, then Lawrence Fox and Susan Martyn have served the profession well. The result should be fewer inquiries along the lines of: “How did I get myself into this darned mess?”