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National Law Journal

Thurgood Marshall

Charles Hamilton Houston

Antonin Scalia

Exxon Valdez oil spill

This essay is adapted from a version published in the May 1999 Vanderbilt Law Review.

Courses on legal ethics are among the least popular courses in the law school curriculum C even less popular than courses on taxation. Nothing makes a law student=s eyes glaze over as quickly as the phrase Alegal ethics.@ At the same time, the legal profession is widely perceived C even by lawyers C as being unethical. Only one American in five considers lawyers to be ethical, and, according to recent studies, the more a person knows about the legal profession, and the more a person has direct personal contact with attorneys, the less a person is likely to think of lawyers.

There are many reasons why ethics courses are so unpopular, but the most important is probably that law students do not think that they will become unethical lawyers. Students think of unethical lawyers as the sleazeballs who chase ambulances (think Danny DeVito in The Rainmaker) or run insurance scams (think Bill Murray in Wild Things) or destroy evidence (think Al Pacino=s crew in The Devil=s Advocate). Students have a hard time identifying with these lawyers. When students think of life after graduation, they see themselves sitting on the 27th floor of some skyscraper in a freshly pressed dark suit (blue, black or gray) with a starched blouse or shirt (white, light blue or, most daringly, white with light blue stripes) doing sophisticated legal work for sophisticated clients. Students imagine that such lawyers do not have to worry much about ethics.

Students are wrong. Dead wrong. In fact, I tell my students that, particularly if they go to work for a big law firm, they will probably begin to practice law unethically in at least some respects within their first year or two in practice. This happens to most young lawyers. It happened to me, and it will happen to my students, unless they do something about it.

Let=s first be clear on what I mean by practicing law ethically. I mean three things.

First, a lawyer has to comply with the formal disciplinary rules C in most states, the Model Rules of Professional Conduct. This is necessary, but far from sufficient. Complying with the formal rules will not make an attorney an ethical lawyer, any more than complying with the criminal law will make her an ethical person.

Second, a lawyer must act ethically in her work, even when she isn=t required to do so by any rule. To a substantial extent, formal disciplinary rules have lost touch with ordinary moral intuitions. To practice law ethically, an attorney must practice law consistently with those intuitions. For the most part, this is not complicated: Treat others as you wish to be treated. Be honest and fair. Show respect and compassion. Keep promises. Being an ethical lawyer is not much different from being an ethical doctor or mail carrier or gas station attendant.

Third, a lawyer must live an ethical life outside of work. Many successful lawyers ignore this point. So do many law professors who, when writing about legal ethics, tend to focus solely on the lawyer at work. But being admitted to the bar does not absolve a lawyer of her responsibilities outside of work C to her family, to her friends, to her community and, if she is a person of faith, to God. To practice law ethically, she must meet those responsibilities, which means that she must live a balanced life.

It is hard to practice law ethically. Complying with the formal rules is the easy part. The rules are not very specific, and they don=t demand very much. Acting as an ethical lawyer in the broader, non-formalistic sense is far more difficult. To understand why, one needs to understand what it is that lawyers do every day.

Most of a lawyer=s working life is filled with the mundane. It is unlikely that one of her clients will drop a smoking gun on her desk or ask her to deliver a briefcase full of unmarked bills or invite her to have wild, passionate sex (or even un-wild, un-passionate sex). These things happen to lawyers only in John Grisham novels. The typical lawyer=s life is filled with the kind of things that drove John Grisham to write novels: dictating letters and talking on the phone and drafting memoranda and performing Adue diligence@ and proofreading contracts and negotiating settlements and filling out time sheets. Because a lawyer=s life is filled with the mundane, whether she practices law ethically depends not upon how she resolves the one or two dramatic ethical dilemmas that she will confront during her entire career, but upon the hundreds of little things that she does, almost unthinkingly, each and every day. When a lawyer is on the phone negotiating a deal or when she is at her computer drafting a brief or when she is filling out her time sheet at the end of the day, she is not going to have time to reflect on each of her actions. She is going to have to act almost instinctively.

What this means is that an attorney will not practice law ethically C cannot practice law ethically C unless acting ethically is habitual for her. She has to be in the habit of being honest. She has to be in the habit of being fair. She has to be in the habit of being compassionate. These qualities have to be deeply ingrained in her, so that she can=t turn them on and off C so that acting honorably is not something she has to decide to do C so that when she is at work, making the thousands of phone calls she will make and writing the thousands of letters she will write and dealing with the thousands of people with whom she will deal, she will automatically apply the same values in the workplace that she applies outside of work, when she is with family and friends.

Here=s the problem, though: A young person who begins practicing law today will find herself immersed in a culture that is hostile to the values with which she was raised (unless she was raised to be rapaciously greedy), for the defining feature of the legal profession today is obsession with money. Now, almost all lawyers work for money. The first person who became a lawyer likely did so to earn a living, and the last person to become a lawyer will likely do so for the same reason. But there seems to be widespread agreement that something has changed in the past decade or two.

Many commentators have lamented the increasing commercialization of the legal profession, but few have captured the extent of this affliction. Perhaps that is because it almost defies description. How can one explain why so many attorneys lead absolutely miserable lives so that they can earn very, very large salaries instead of just very large salaries? So that they can live in 4,000 square foot homes that they never see instead of in 3,000 square foot homes that they have time to enjoy? So that their children can spend two weeks a year with them on fabulously expensive vacations instead of having dinner with them every night? It is hardly surprising that, in a profession composed of so many people who would rather make $150,000 per year and be mostly unhappy than make $120,000 per year and be mostly happy, young lawyers find themselves under tremendous pressure to act in ways that make money for their firms, their clients, and themselves.

This pressure is usually not direct. No one takes a young lawyer aside and says, AJane, we here at Smith & Jones are obsessed with money. From this point forward the most important thing in your life has to be billing hours and generating business. Family and friends and honesty and fairness are okay in moderation, but don=t let them interfere with making money.@ No one tells a young attorney, as one lawyer told another in a Charles Addams cartoon, AI admire your honesty and integrity, Wilson, but I have no room for them in my firm.@ Instead, the culture pressures young lawyers in more subtle ways to replace their values with the system=s.

Here is an example of what I mean: During her first month working at a law firm, a young associate will be invited by some senior partner to a barbeque at his home. This Abarbeque@ will bear absolutely no relationship to what the associate=s father used to do on a Weber grill in their driveway. The associate will drive up to the senior partner=s home in her rusted Escort and park at the end of a long line of Mercedeses and BMWs and sports utility vehicles. She=ll walk up to the front door of the house. The house will be enormous. The lawn will look like a putting green; it will be bordered by perfectly manicured trees and flowers. Somebody wearing a white shirt and black bow tie will answer the door and direct her to the backyard. She will walk through one room after another, each of which will be decorated with expensive carpeting and expensive wallpaper and expensive antiques. Scattered throughout the home will be large professional photographs of beautiful children with tousled, sun-bleached hair.

As she enters the partner=s immaculately landscaped backyard, someone wearing a white shirt and black bow tie carrying a silver platter will approach the young lawyer and offer her an appetizer. She will not be offered cocktail weenies in barbeque sauce, but rather pâté or miniature quiches or shrimp. A bar will be set up near the house; the bartender (who will be wearing a white shirt and black bow tie, of course) will pour her a drink of the most expensive brand of whatever liquor she likes. In the corner of the yard, a caterer will be grilling swordfish. In another corner will stand the senior partner, sipping a glass of white wine, holding court with a worshipful group of junior partners and senior associates.

The senior partner will be wearing designer sunglasses and designer clothes; the logo on his shirt will signal its exorbitant cost; his shorts will be pressed. He will have a tan C albeit a slightly orange, tanning salon enhanced tan C and the nicest haircut the young associate has ever seen. Eventually, the partner will introduce the associate to his wife. The partner=s wife will be beautiful, very thin and a lot younger than her husband. She, too, will have a great tan, and not nearly as orange as her husband=s. The young associate and the other lawyers will talk about golf. Or about tennis. After a couple hours, the associate will walk out the front door, slightly tipsy from the free liquor, and say to herself, AThis is the life.@

In this and a thousand other ways, young lawyers absorb big firm culture C a culture of long hours of toil inside the office and short hours of conspicuous consumption outside the office. They work among lawyers who talk about money constantly and who are intensely curious about how much money other lawyers are making. Any lawyer who wants to get some sense of this should leave his tax return on the photocopier glass sometime. (At least one hapless lawyer seems to do this every spring at most firms.) Every lawyer in the firm will know how much money the lawyer made last year in about 15 minutes, and every lawyer who joins the firm during the next quarter century will hear the story of the lawyer=s tax return.

Twenty or 30 years ago, talking about income and clients and fees just wasn=t done, even within the huge Wall Street law firms. Today, it sometimes seems that lawyers talk of little else. Just about every issue of the National Law Journal or the American Lawyer includes at least one article about how much money some lawyer somewhere is making. A couple times a year, these journals publish extensive surveys of lawyers= incomes C focusing in particular on the incomes of associates and partners in big firms. These surveys are pored over by lawyers with the intensity of kids poring over the statistics of their favorite baseball players.

Big firm culture also reflects the many ways in which lawyers who are winning the game broadcast their success. A first year male associate will buy his suits off the rack at a department store; a couple years later, he=ll be at Brooks Brothers; a few years after that, a salesperson will come to his office, with tape measures and fabric swatches in hand. Similar ostentatious progress will be demonstrated with regard to everything from watches to cell phones to running shoes to child care arrangements to private social clubs. When lawyers speak with envy or admiration about other lawyers, they do not mention a lawyer=s devotion to family or public service, or a lawyer=s innate sense of fairness, or even a lawyer=s skill at trying cases or closing deals, nearly as much as they mention a lawyer=s billable hours, or stable of clients, or annual income.

It is very difficult for a young lawyer immersed in this culture day after day to maintain the values she had as a law student. Slowly, almost imperceptibly, young lawyers change. They begin to admire things they did not admire before, be ashamed of things they were not ashamed of before, find it impossible to live without things they lived without before. Somewhere, somehow, a lawyer changes from a person who gets intense pleasure from being able to buy her first car stereo to a person disappointed with a $100,000 bonus.

As the values of an attorney change, so, too, does her ability to practice law ethically. The process that I have described will obviously push a lawyer away from practicing law ethically in the broadest sense C that is, in the sense of leading a balanced life and meeting nonwork-related responsibilities. When work becomes all consuming, it consumes all. If a lawyer is working all the time, she cannot meet any other responsibilities that require any appreciable commitment of time or energy. This much is obvious. However, absorbing the values of big firm culture will also push a lawyer away from practicing law ethically in the narrower sense of being honest and fair and compassionate. In the highly competitive, money-obsessed world of big firm practice, most of the incentives push lawyers to stretching ethical concerns to the limit.

Of course, unethical lawyers do not start out being unethical; they start out just as my students do C as perfectly decent young men or women who have every intention of practicing law ethically. And unethical lawyers do not become unethical overnight; they become unethical just as my students will (if they become unethical) C a little bit at a time. And unethical lawyers do not become unethical by shredding incriminating documents or bribing jurors; they become unethical just as my students are likely to C by cutting a corner here, by stretching the truth a bit there.

For the typical young attorney, acting unethically starts with her time sheets. One day, not too long after she starts practicing law, she will sit down at the end of a long, tiring day, and she just won=t have much to show for her efforts in terms of billable hours. It will be near the end of the month. She will know that all of the partners will be looking at her monthly time report in a few days, so what she=ll do is pad her time sheet just a bit. Maybe she=ll bill a client for 90 minutes for a task that really took her only 60 minutes to perform. However, she will promise herself that she will repay the client at the first opportunity by doing 30 minutes of work for the client for Afree.@ In this way, she=ll be Aborrowing,@ not Astealing.@

And then what will happen is that it will become easier and easier for the young lawyer to take these little loans against future work. And then, after a while, she will stop paying back these little loans. She will convince herself that, although she billed for 90 minutes and spent only 60 minutes on the project, she did such good work that her client should pay a bit more for it. After all, her billing rate is awfully low, and her client is awfully rich.

And then she will pad more and more C every two minute telephone conversation will go down on her time sheet as 10 minutes, every three hour research project will go down with an extra quarter hour or so. She will continue to rationalize her dishonesty to herself in various ways until one day she stops doing even that. And, before long C it won=t take her much more than three or four years C she will be stealing from her clients almost every day, and she won=t even notice it.

The young lawyer will also become a liar C and just as easily. A deadline will come up one day, and, for reasons that are entirely her fault, she won=t be able to meet it. So she will call her senior partner or her client and make up a white lie for why she missed the deadline. And then she will get busy and a partner will ask whether she proofread a lengthy prospectus and she will say yes, even though she didn=t. And then she will be drafting a brief and she will quote language from a Supreme Court opinion even though she will know that, when read in context, the language does not remotely suggest what she is implying it suggests. And then, in preparing a client for a deposition, she will help the client to formulate an answer to a difficult question that will likely be asked C an answer that will be Alegally accurate@ but that will mislead her opponent. And then she will be reading through a big box of her client=s documents C a box that has not been opened in 20 years C and she will find a document that would hurt her client=s case, but that no one knows exists, and she will simply Aforget@ to produce it to her opponent.

After a couple years of this, the young lawyer won=t even notice that she is lying and cheating and stealing every day that she practices law. None of these things will seem like a big deal in itself C an extra 15 minutes added to a time sheet here, a little white lie to cover a missed deadline there. But, after a while, the young lawyer=s entire frame of reference will change. She will still be making dozens of quick, instinctive decisions every day, but those decisions, instead of reflecting the notions of right and wrong by which she conducts her personal life, will instead reflect the set of values by which she will conduct her professional life C a set of values that embodies not what=s right or wrong, but what is profitable, and what she can get away with. The system will have succeeded in replacing her values with the system=s values, and the system will be profiting as a result.

How can a young lawyer avoid this fate? The most important thing, I tell my students, is to avoid getting sucked into the game. Don=t let money become the most important thing in your life. Don=t fall into the trap of measuring your worth as an attorney C or as a human being C by how much money you make.

If a lawyer lets her law firm or clients define success for her, they will define it in a way that is in their interest, not hers. It is important for them that her primary motivation be making money and that, no matter how much money she makes, her primary motivation continue to be making money. If she ends up as an unhappy or unethical attorney, money will most likely be at the root of her problem.

Young lawyers need to understand that they cannot win the game. If a young lawyer falls into the trap of measuring her worth by money, she will always feel inadequate. There will always be a firm paying more to its associates than her firm. There will always be a firm with higher per-partner profits than her firm. There will always be a lawyer at her firm making more money than she does. No matter how hard she works, she will never be able to win the game. She will run faster and faster and faster, but there will always be a runner ahead of her, and the finish line will never quite come into view. That is why the game will make her clients and partners so rich and her so unhappy.

When we were children, most of us were told by our parents or grandparents that money does not buy happiness. They were right. Even scientists now say they were right. In part, they were right because much of what determines whether we will be happy is outside our control. We cannot control our genetic makeup C upon which happiness seems in part to depend (according to recent studies) C nor can we control many of the events in life that, for better or worse, will affect our subjective well-being (for example, we can=t control whether we will be permanently injured in a car accident or whether our spouses will perish at a young age). But the main reason our parents or grandparents were right about money not buying happiness is because C well, because money does not buy happiness.

Research has shown that, with the exception of those living in poverty, people are almost always wrong in thinking that more money will make them happier. Once people are able to afford the necessities of life, material wealth matters surprisingly little. When people experience a rise in income, they quickly adjust their desires and expectations accordingly C and conclude, once again, that more money will bring them more happiness. (Psychologists Philip Brickman and Donald Campbell aptly refer to this process as the Ahedonic treadmill.@) Thus, when, as is true in law firms, more money almost always means more work, money not only fails to buy happiness, but it actually buys unhappiness.

Law students and young lawyers C particularly those who have enjoyed academic success at the best schools C have to get their priorities straight. It saddens me that the objects of envy and admiration of so many of my students today are not lawyers like Thurgood Marshall or Charles Hamilton Houston C lawyers who sacrificed much personal gain to do much public good C but rather the nameless, faceless attorneys who populate giant law firms, grinding out thousands upon thousands of billable hours, often toward no end other than getting rich and determining whether one huge corporation will have to write out a check to another huge corporation.

Law students and young lawyers have to stop seeing workaholism as a badge of honor. They have to stop talking with admiration about lawyers who bill 2,500 hours per year. Attorneys whose lives are consumed with work C who devote endless hours to making themselves and their clients wealthy, at the expense of just about everything else in their lives C are not heroes. And that is true whether the lawyers are workaholic because they truly enjoy their work or because they crave wealth or because they are terribly insecure. At best, these attorneys are people with questionable priorities. At worst, they are immoral. There are certainly better lawyers after which to pattern one=s professional life.

Law students and young lawyers must consider the costs, as well as the benefits, of private practice C and particularly of private practice in a large firm. The benefits of big firm life C the high salaries, the plush offices, the conspicuous consumption C are paraded before young lawyers and are easy to understand. Any law student can divide $90,000 by 12, subtract 40 percent for federal and state taxes, and fantasize about how she will spend $4500 a month. By contrast, the costs of big firm life are not paraded before young lawyers and are not fully appreciated until a lawyer actually works at a large firm. But the costs are just as real as the benefits.

I tell my Notre Dame Law School students that when they are at that barbeque at the senior partner=s house, instead of wistfully telling themselves, AThis is the life,@ they should ask the senior partner some questions. (I=m speaking figuratively here; my students probably shouldn=t actually ask these questions aloud.) Ask that senior partner, I tell my students, how often he sees the gigantic house in which he lives. If he=s honest, they will find out that he hasn=t seen his home during daylight for almost four weeks, and that the only reason he came home at a decent hour tonight is to host the barbeque. Or ask him how often he=s actually sat on that antique settee in that expensively decorated living room. They will find out that the room is only used for entertaining guests. Or ask him about his beautiful wife. They will find out that she is the third Mrs. Partner and that the lawyers for the first two Mrs. Partners are driving him crazy. Or ask him about those beautiful children whose photographs are everywhere. They will find out that the children live with their mothers, not with him; that he never sees one of them because she hates his guts; and that he sees the other two only on holidays C that is, when he is not working on the holidays, which isn=t often. And then ask him when is the last time he read a good book. Or watched television. Or took a walk. Or sat on his porch. Or cooked a meal. Or went fishing. Or did volunteer work. Or went to church. Or did anything that was not in some way related to work.

This is the best advice I can give my students: Right now, while they are still in law school, they need to make the commitment C not just in their heads, but in their hearts C that, although they are willing to work hard and they would like to make a comfortable living, they are not going to let money dominate their lives to the exclusion of all else. And they must not simply structure their lives around this negative; they should embrace a positive. They must believe in something C care about something C so that when the culture of greed presses in on them from all sides, there will be something inside of them pushing back. They must make the decision now that they will be the ones who define success for themselves C not their classmates, not big law firms, not clients of big law firms, not the National Law Journal. They will be a happier, healthier and more ethical attorneys as a result.

I know of what I speak. I had my pick of high paying, big city, big firm jobs in 1987, as I was completing a clerkship with Supreme Court Justice Antonin Scalia. In fact, many big firms were supplementing their usual astronomical salaries with special bonuses for Supreme Court clerks. I decided to turn down the big money and return home to Minnesota, where I joined a large firm with a reputation for treating people well. Within a couple years, I was married, and our first child was on the way.

I had every intention of leading a balanced life. And, by New York or Washington standards, I suppose I did. By anyone else=s standards, I did not. I worked three or four nights and one or two weekend days every week. When I was preparing for a trial or arbitration or appellate argument, I worked almost around the clock. I put hundreds of hours into business development, and, within three years or so, had created a self-sustaining practice. I traveled constantly. What I remember about the times my children first talked or walked or went to the potty was the hotel room in which I was sitting when my wife told me about the event over the phone. I was in Seattle when my grandmother died. I was in Pittsburgh when the worst snowstorm of the century trapped my family in our house for two days. I was in Williamsburg when my wife learned that our third child, with whom she was four months pregnant, had Down Syndrome. I failed miserably in my resolve to lead a balanced life, and neither my family nor I will ever be able to get back what we lost as a result.

My students may be able to do better than I did, but I wouldn=t count on it. No matter how pure a young lawyer=s intentions C no matter how firm her resolve C when she goes to work at a big firm, the culture will seep in. I grew up in a lower middle class neighborhood. I literally never met anyone who could be characterized as wealthy. I almost never talked about money or thought about money. That all changed when I started practicing law, despite my best intentions. Slowly, imperceptibly, the things that I cared about and the way that I thought about others and the way that I thought about myself changed. I got sucked into playing the game, and even today, four years after leaving the big firm, I still find myself playing the game at times.

Fortunately, though, I have learned that it is never too late to change C even when you=ve failed as much as I have. My firm was lead counsel for the plaintiffs in the Exxon Valdez oil spill litigation. In 1994, while I was still a partner, we won a judgment of more than $5 billion. We partners all knew that, if and when we collected that judgment, even the smallest partner=s share would be a few hundred thousand dollars. Most of the partners would become millionaires. Because my wife and I would both be partners, we would enjoy two slices of this enormous pie.

At about the time of the Exxon Valdez verdict, my wife and I were beginning to feel that, somewhere along the line, we had lost our way. We were working constantly. We were under constant pressure. We were constantly feeling guilty about the hardships we were imposing on each other and on our children. The life we were leading was not the life we had envisioned. We had strayed from the values with which we were raised.

In early 1995, we decided to leave big firm practice and to leave the Exxon money behind, so that we could accept appointments to the Notre Dame faculty. We decided to give up a ton of money in return for work that was more enjoyable and less stressful, and for more time with each other and our children. All of this, we decided, was more important than money C even lots and lots of money.

I don=t claim that we made an enormous sacrifice. We did give up a lot of money, but we still get paid well, and we have great jobs. Nor do I claim that we have stopped playing the game C that we have no regrets, that we never look back, that we don=t care about money any more. None of that would be true. Living a balanced life and defining success for yourself are lifelong struggles, and they don=t end once you leave a big law firm. The one thing I can promise my students is that, as we rediscover every day, they are struggles well worth undertaking.

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