Article
Code of Silence
Cardozo Law Review
(2019)
Abstract
To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This article takes a different approach; it listens to the taciturn.
This article draws insight from when the bar chooses to be silent in the face of widely known violations of the law of lawyering. Examples of such transgressions are varied. Criminal defense lawyers may barely glance at files before appearing for a client. Big-law firm attorneys routinely use delay, burden, and harassment as tactics against other private adversaries to pursue client goals. Public interest lawyering may prioritize the development of favorable case law and institutional goals over individual client-driven ends. These are not secrets—they are almost truisms.
In probing silence so described, this Article questions the profession’s commitments to a uniform code of conduct and adds to the debate on the “standard conception” of lawyering. This inquiry reveals that lawyers have a more nuanced sense of professionalism than what one finds in the rules of professional responsibility; it is one tempered by context, competing duties, alternative regulatory systems, economic realities, and an ongoing commitment to lawyers as stewards of justice.
Keywords
- professional responsibility,
- legal ethics,
- law of lawyering,
- code of conduct,
- professional regulation
Disciplines
Publication Date
June, 2019
Citation Information
Melissa D. Mortazavi. "Code of Silence" Cardozo Law Review Vol. 40 Iss. 5 (2019) p. 2171 - 2222 Available at: http://works.bepress.com/melissa_mortazavi/24/