Steroids and Legal Ethics Codes: Are Lawyers Rational Actors?
Zacharias, Fred C., Notre Dame Law Review
A TRIBUTE TO FRED ZACHARIAS ([dagger])
During the editing of this Article, on the afternoon of November 11, 2009, Professor Fred Zacharias died at the age of 56.
Professor Zacharias devoted his entire adult life to professional responsibility issues, both as an attorney and as a scholar. During the past two decades, he wrote over sixty leading law review articles in this field. Professor Zacharias 's influence on the development and exploration of legal ethics issues was immense and multifaceted.
Wholly beyond his academic contributions to the field, as an individual, Professor Zacharias was a person of consummate integrity. That quality defined him. Fred not only valued the search for truth and the improvement of justice, but unerringly sought these ends. Moreover, he did so not only when these goals were convenient and popular, but even when they were not.
Fred was his own man. He did not follow trends. He did not vote with the crowd. He thought deeply and came to his own conclusions. And was not afraid to voice them.
What follows is the last law review article Professor Zacharias wrote. In September, Fred came to the conclusion that his battle with cancer would likely be over by year's end, and that he would accordingly be unable to complete the editing process of this piece, and asked us if we were willing to complete his final work. It is a testament to, and typical of Professor Zacharias that even in the final days of his life, he wanted to complete his academic work and fulfill what he felt were his obligations to the law review students who had accepted his piece.
There are few individuals who share the commitment and integrity of Professor Zacharias. He will be sorely missed.
Over time, legal ethics codes have become increasingly specific and enforceable. (1) Yet at root, they remain a mixture of hortatory and concrete mandates, some never enforced, most rarely enforced, and none universally enforced. (2) Law and economics scholars--and other observers who internalize a "bad man" theory of human behavior (3)-assume that ethics provisions that do not result in discipline have little, or perhaps even counterproductive, effects; (4) hortatory or generalized codes allegedly do not create incentives producing appropriate lawyer conduct. (5)
Despite these perspectives, the American Bar Association (ABA) and state code drafters continue to rely upon mixed rulemaking. One explanation might be self-interest; by maintaining the illusion of self-regulation through provisions that sound high-minded, the bar sometimes avoids external regulation that might have bite. (6) Another is the inability of code drafters to achieve consensus on the substance of rules, resulting in compromised provisions that allow lawyers to acknowledge ideals but to engage in a range of conduct. (7)
This Article suggests a third explanation. Although underenforced ethics provisions have costs, (8) they can also serve a valuable function. They address and guide the conduct of a segment of the bar that does not act entirely upon financial and reputational incentives in ordering its affairs. Some lawyers, for a variety of reasons, simply are willing to follow the rules even if doing so may be economically disadvantageous.
The law and economics response would likely take one of two forms. First, true economists would suggest that any reason for obeying a rule, including psychic benefits, can be characterized as "economic" and therefore fit into the economic analyses of legal ethics rules. (9) Second, some observers assuming a "bad man" vision might simply deny that people (including lawyers) ever act, or should act, on non-financial or non-quantifiably economic incentives. (10)
This Article calls these perspectives into question by drawing from the recent history of steroid use in baseball a series of character traits that prompted baseball players to use or avoid performing-enhancing drugs. …