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GPSolo Magazine - April/May 2004

Product Review

Foundations of Law: The Law and Ethics of Lawyering
By George M. Cohen and Susan P. Koniak

Reviewed by Joan M. Burda

“ It is daunting to be a lawyer and that is, we believe, as it should be. Law is just too important and too powerful—too majestic and too potentially destructive—to expect the lives of its agents to be easy lives.”

Foundations of Law: The Law and Ethics of Lawyering is a collection of essays on the legal profession, legal ethics, and professional responsibility. Published by West Group in 2003 and priced at $29.50, the book presents the edited versions of law reviews dating from 1965 to 2003. The result is an interesting and, at times, entertaining snapshot of legal thought on ethics issues during the past 40 years.

The book raises questions about the conflicts faced by lawyers in their roles as advocate and officer of the court. Do advocates and counselors have a different relationship with the law? Are rarely enforced ethics rules really rules, or just suggestions? Do lawyers really think about ethics in the daily course of their practice? The book answers that question as “a pretty unlikely description of reality.”

One of the most fascinating articles is “Moral Character as a Professional Credential” by Deborah L. Rhode. The author writes, “As currently implemented, the moral fitness requirement both subverts and trivializes the professional ideals it purports to sustain.” Rhode refers to the subjectivity of the evaluation process. She writes about two Michigan candidates. One violated a fishing license statute ten years earlier and was denied certification. A convicted child molester, however, was admitted. She writes, the “inherent inadequacy in the certification process stems from the point at which oversight occurs. In essence, the current process is both too early and too late.”

How many law students know about the moral evaluation before coming to law school? Should the questions be asked before the students start their studies? Why wait until an individual has accumulated a massive amount of debt and only then raise the moral character test. Is there detrimental reliance? Because there is no set standard for determining a candidate’s moral character—even within any given state—is the examination a farce?

The book addresses issues that frequently come up, such as mandatory pro bono. Do lawyers have a greater obligation to provide free assistance than do other professions? Are organized attempts to curtail free legal assistance to indigents fair? Should everyone have the right to access the courts? If so, who pays for it? Do IOLTA accounts force people to violate the First Amendment freedom of speech and association?

Who is talking about these issues? Are these discussions limited to law students? Are practicing lawyers too busy to be bothered with ethics, moral character, and professional responsibility?

Foundations of Law: The Law and Ethics of Lawyering is a book that should be read and discussed. Certainly, law students should read this book. It may be that these new lawyers will bring a more enlightened approach to ethics, responsibility, and obligation when they assume their place in the profession.

Practicing lawyers also need to read this book. We need to sit down with our colleagues and talk about it. We may find there is a way to be moral, ethical, professional, and successful at the same time. We may realize that mandatory pro bono is an obligation we assumed when we were sworn into the bar. Maybe we will look upon our profession as a living, breathing being, and not just a hidebound, inanimate set of rules and precedent.

Joan M. Burda operates a solo practice in Lakewood, Ohio. She can be reached at jmburda@mac.com.

Note: West Group is a corporate sponsor of the General Practice, Solo and Small Law Firm Section; this article appears in connection with the Section's sponsorship agreement with West Group. Neither the ABA nor ABA Sections endorse non-ABA products or services, and this review should not be so construed.