Academic journal article Defense Counsel Journal

Client vs. Self

Academic journal article Defense Counsel Journal

Client vs. Self

Article excerpt

If there is a common theme in lawyer jokes, it probably centers on a stereotype of the heartless lawyer, concerned only with self. Yet the canons of ethics, to which all lawyers must subscribe, provide that a lawyer cannot represent a client where the lawyer's own interest may materially limit that representation. A lawyer is called on to put the client's interest first and foremost. A lawyer frequently must ask whether his actions are for the benefit of client or of self.

Professional organizations should ask the same question. Should an organization of legal professionals serve its members, the clients of its members, the legal profession, or the legal system? Different organizations might reach different conclusions, yet all could be correct in that there is room, and indeed a need, for organizations to serve each of those constituencies.

A recent letter from the President of the American Bar Association asked Congress to enact legislation overruling the Supreme Court's decision in Riegel v. Medtronic, a decision that upheld the concept of federal pre-emption. The letter purported to speak on behalf of the more than 400,000 members of the ABA, which I found curious since it did not speak for me.

The intent of the ABA, as I gleaned from the letter, was to express its view on federalism and state's rights. Cynics, however, might conclude that the ABA was taking a position that would promote litigation; that is, would increase business for its members. If its members agree, the ABA has every right to take such a position, either for the more noble or the more cynical reason. Virtually every profession has its advocacy group, intended to promote the interests of its members, and the legal profession need hot be an exception. The ABA has done much to promote the interests of its members, and for that I am grateful.

But a large number of ABA members represent manufacturers whose interests are not served by allowing each state to set its own rules governing the products manufactured. Those clients benefit and rely on the uniformity of standards provided by federal pre-emption, where it exists. To the extent lawyers are taking positions adverse to pre-emption, they are taking positions adverse to these clients. Can those lawyers now represent manufacturers in cases where pre-emption is at issue?

The fact that the question is even raised fuels the stereotype at the center of the lawyer jokes. …

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