Friday, July 10, 2009

Let's Get Ethical

Once in my Higher Ed. Law class, an attorney came in to talk about NCAA law. He pointed out all the funny prohibitions, such as forbidding universities from taking prospective athletes out to strip clubs. He noted that these rules are only in there because it has happened.

Sometimes I do find learning about laws interesting because of what it says about society or the specific community that the laws are regulating. Behind every law is policy. Moreover, what laws a jurisdiction emphasizes (or more relevant to my life: tests on the bar exam) seem to reflect values or remedying past incidents.

For a little case study, let's take California. The only subject that is guaranteed to be tested on the essay portion of our bar exam is professional responsibility (aka legal ethics). This is notwithstanding the fact that we are all required to take ethics in law school, we all had to take a multiple choice ethics exam, and California requires the highest score on said exam in the country.

So what does this say about California? Either we really, really like ethics or the public does not trust us and we have to keep proving ourselves to them. It is the latter. See, we have good ole Califorian Nixon to thank. They did not add the mandatory ethical requirement to the bar until Watergate.

Additionally, through studying for the bar, I have also learned the differences between California and the national model rules (ABA). Let's see what these rules say about us:
  • ABA states attorney fees must be reasonable; CA says that they can't be unconscionable. Meaning: whatever the difference is between reasonable and unconscionable, we can charge it.
  • ABA says that you cannot take contingency fees for domestic relations cases; CA says you can take contingency fees in divorce unless it encourages breakup of marriage. Meaning: everyone thinks we're the land of divorce, now at least the lawyers can get paid.
  • ABA says you can't literary obtain rights to a client's case until after it ends; CA allows it during the case. One word: Hollywood.
  • ABA requires lawyers to report other lawyer's ethical violations; CA only requires people to report their own ethical violations. Clearly we have a lot of faith in the honors system.
  • ABA states that there is a conflict of interest when your family is on the opposing side; CA adds that there is also a conflict when you are opposing someone you're intimate with.
  • ABA prohibits consensual sex with clients unless the relationship was preexisting; CA felt the need to elaborate that a lawyer cannot demand or coerce a client to have sex and must withdraw if the sexual relations renders the lawyer incompetent. Sad there needed to be an explanation.
So interesting, we require more ethical hoops to jump through, but our rules seem more relaxed and fiscally self-serving than the national model. And apparently we have more promiscuous lawyers. Oh California.

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