How to Protect Our Profession from Regulation
By Bion Gregory

Tim Aspinwall's article in this edition of the Sacramento Lawyer presents an interesting discussion of some ethical dilemmas.

Lawyers need to understand that our profession presents more difficult ethical questions than any other learned profession. Our profession provides more abundant opportunity than any other to stretch one's self and grow ethically. Our profession indeed offers endless personal challenges that test our moral mettle.

Both individuals and organizations tend towards mission drift, responding to external forces, unless they maintain clarity of purpose and check from time to time whether actions are in line with a noble purpose. A lawyer must have a strong sense of personal purpose and ethics or the other ethical systems that must be navigated will exercise gravitational force.

The tradition of a learned profession is that self-interest is restrained to some degree in the service of the ideals of the profession, which, in our case, is justice. The culture and ethics of the profession are also important. What role does justice play in the definition of its mission? What is the current role of money with respect to the mission?

Recent corporate wrongdoing has resulted in the loss of trillions of dollars from retirement funds and investments. Lawyers, accountants, and auditors allowed the pursuit of profit to trump long-standing professional values. The consequences of this corporate fraud for the accounting profession provide strong lessons for our profession. In the tradition of a learned profession, society and members of a profession form an unwritten social compact, whereby the members of the profession agree to restrain self-interest, and to promote ideals of public service and maintain high standards of performance in the area of the profession's responsibility. In return, society allows the profession substantial autonomy to regulate itself through peer review. The accounting profession lost sight of the social compact in its excessive emphasis on profit, and the public, recognizing the breach of the social compact, called on Congress to end the profession's autonomy and federalize the regulation of the profession. We must not travel the same path.

The relationship with the client in our profession is more complex than that of any other learned profession. For example, physicians serve physical health and the clergy, spiritual health. These are accepted social goals. As a representative of a client, the lawyer takes on the goals of the client, becoming the alter ego of the client and speaking for the client in all of the forums in our society where decisions are made. In many cases, the morality of the client's goals is vastly more controversial than the physical or spiritual health of a person.

The profession has historically emphasized the skills necessary to represent the client in adversarial proceedings. We are trained to prevail over hostile adversaries using the coercive power of the courts and government or the economic, social, media or political power of the client. We are the only one of the learned professions that seeks best another person on behalf of the client.

Clients bring to us a wide range of personal moral development and moral reasoning skills, and we must find a way to help them think through the issues from their perspective. Since we undertake, in behalf of our clients, goals vastly more morally controversial than the goals of the other learned professions, the moral engagement is more complex. In addition, moral discourse, even clothed in a language the client can hear and understand, like analysis of risk or reputation, is a sensitive subject for some clients, and moral courage is required to undertake it.

We are the only one of the learned professions that deals on a day-to-day basis with the ethical dilemma of hostile adversaries who provide a frequent invitation to join them in improper motives and conduct. What should we do when the adversary uses unethical strategies and tactics, particularly when the client is urging us to join in them? The lawyer must ensure that the client understands why a lawyer should not and cannot joint in unethical conduct.

Finding a path to a good and worthy life through these dilemmas is a challenge that stretches the soul. The most critical ethical system is the lawyer's own personal ethics. A lawyer must attend to the development of his or her own moral compass to find an ethical path and stay on it. Most lawyers have made a good living and have lived true to their moral compass. That is the best protection for our profession from those who would seek to impose governmental regulation.