[The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, and here.]
This month, for the thirtieth year, medical schools’ “white coat ceremonies” formally initiated students into the profession. Many of those events featured some version of the Hippocratic Oath, which was created about twenty-five centuries ago.
New law students—preparing for positions at least as complicated, and much more contentious, than those of physicians—were presented with no special garment or equipment, and might not have recited any pledge (although some law schools have introduced “professionalism oaths”).
However, during their own orientations these “One Ls” effectively donned an invisible, insulating, and indispensable cloak designed by the American Bar Association.
Tailored to the complexities of attorney-client relationships, the plain-English provisions of the Model Rules of Professional Conduct (available on the ABA’s website, and valuable reading for any pre-law or law student) are by necessity both roomy and restrictive.
They enable a lawyer to act simultaneously on behalf of her law firm, its clients, and the legal system; and to serve variously as an advisor, advocate, negotiator, evaluator, and arbitrator.
Because lawyers lack the distinctive dress of doctors, they are sometimes required to identify their profession and the possibly adversarial nature of their involvement.
For example, an attorney dealing on a client’s behalf with someone not represented by counsel must “make reasonable efforts to correct [that person’s] misunderstanding” of “the lawyer’s role in the matter.” In particular, an attorney who represents an organization should “explain the identity of the client” when communicating with executives, employees, and shareholders whose personal interests are adverse to the organization’s, but who might mistakenly believe that the attorney also directly represents them.
The Rules also reflect lawyers’ (as opposed to doctors’) legal status as agents, who owe to each client/principal the fiduciary duties of care and loyalty. They prescribe standards for providing competent, informed, and timely counsel; and for championing a client’s concerns, including confidentiality, ahead of the lawyer’s own.
Although the interests of a physician’s different patients might rarely collide, the Rules address in detail how to prevent, and resolve, conflicts among a lawyer’s (or law firm’s) clients.
Lawyers’ cloaks do allow them some flexibility and freedom of movement.
First, among the Rules’ mandatory (“shall”) provisions are many discretionary (“may”) provisions, and, more than a hundred appearances of some form of the qualifier, “reasonable”; more than thirty of “substantial”; and more than twenty-five of “material.”
Second, although doctors aren’t usually perceived by the public as endorsing their patients’ values and actions, lawyers well might be. Model Rule 1.2(b) declares that representation “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Third, under Model Rule 1.16(b)(4), an attorney may generally withdraw from a representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”
Fourth, the lawyer herself isn’t explicitly required to refrain from personal activities that might embarrass or disconcert some clients.
Fifth, just as doctors might make suggestions that are not technically medical, lawyers may offer perspectives beyond the strictly law-related. Model Rule 2.1 provides that, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”
For example, ESG (Environmental, Social, and Governance) attorneys often review with clients possible public pushback to (or plaudits for) their various legal options.
The most recent characteristics of law students’ cloaks were added by the ABA’s accreditation standards. As of February 2022, law schools must “provide substantial opportunities to students for . . . the development of a professional identity,” which “involve[s] an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.”
One of those fundamental values, principles, and practices—compassion, for oneself and others—is nowhere mentioned in the Model Rules.
However, it appears in the first of the American Medical Association’s ten Principles of Medical Ethics, as well as in the accounts of physicians like Danielle Ofri (What Patients Say, What Doctors Hear), Suzanne Koven (Letter to a Young Female Physician), and Jerome Groopman (How Doctors Think).
Generations of law students have been advised, “If the facts help your client, pound on the facts. If the law helps your client, pound on the law. If the facts and the law don’t help your client, pound on the table and yell.”
In one old story, a courtroom lawyer, finding both the facts and the law unavailing, chooses a less aggressive option. Humbly pleading for judicial compassion for his client, he happens to resort to Yiddish: “Your Honor, it’s a matter of rachmones.”
To which the opposing attorney, accustomed to legal decisions bearing such titles as Matter of Smith and Matter of Jones, responds in confusion, “Counsel, do you have a citation for that reference?”
The pockets of a law student’s invisible cloak should have at least as much room for compassion as do those of a medical student’s new white coat.
