January 1999

Ethics And The Law
The Preamble to the Rules of Professional Conduct
An Important Guide to Professionalism

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Most of us consult the Rules of Professional Conduct (RPCs) only when we recognize a specific ethical problem. Usually this is when we are uncertain whether we should or should not do something, and then we tend to read the RPCs to our advantage, hoping they will allow us to do what we want. Sometimes, after we have already done something, we consult them retrospectively, usually with a certain trepidation, to see whether what we have already done was ethically permissible. At those times, we tend to read the RPCs narrowly like a criminal statute, with all of the marvelous twists of thought and justifications we lawyers are capable of, to prove that we did not violate them.

In our haste to resolve a specific problem, we often leap into the RPCs to find a particular rule in the midst of the nearly 11,000 words of the RPCs. In doing so we usually skip over the Preamble to the RPCs. We often do this without thinking of what the RPCs are really all about. We forget that the RPCs are not to be consulted only in a moment of decision, action or crisis, but are also to be consulted as a guide to basic standards of behavior (even if only minimal ones) on how to become a more complete and more fulfilled professional.

The etymology of the word preamble, "to walk in front of," should help us understand the Preamble's central role in our ethics rules. The Preamble can be our ethical guide, walking before us, leading us on our quest to be the best professionals we can be. Too often we become en-meshed in our practices, in our problems of the moment, and forget this guide which will help show us the way through the ethical complexities of our profession.

The Preamble to the RPCs is only 334 words long. Yet without it, the remaining 11,000 words of the RPCs may be seen as merely a collection of do's and don'ts, with little unifying theme or underlying rationale, merely another unwanted regulatory intrusion into our lives. Without the Preamble, we might ask ourselves, for example: Why must we be competent and diligent? Why must we communicate with clients? Why must we be candid? Why must our fees be limited to "reasonable fees"? Why must we maintain our clients' confidences and secrets? Why must we avoid conflicts of interest? The answer is not just that the Supreme Court, by adopting the RPCs, has told us we must do so. So, why do we have these rules at all?

If we were selling furniture or cars or computer software, none of the standards of competence, diligence, communication, reasonableness, and so on, would be mandated by any regulatory body. Instead, the marketplace dictates who will prosper and who will fall by the wayside. If an individual violates all the voluntary standards of most unregulated trades or occupations, nothing (other than the marketplace) prevents the individual from continuing to ply his or her occupation. A salesperson or a software programmer, no matter how often or seriously he or she delays projects, is never prohibited by law from continuing as a salesperson or a software programmer. The marketplace, by possibly lowering the profitability of that person, may limit that person, but it does not exclude that person, nor does it prevent that person from moving elsewhere to start a new business without regard to how miserably in the past he or she has failed to meet the needs of his or her clients.

Being a lawyer is different. The marketplace may determine who among us will financially prosper. But financial prosperity is not the motivating goal of most satisfied lawyers. Further, if a prosperous lawyer is found to be unethical, then, even if the marketplace has "said," by making the lawyer prosperous, that it wants the lawyer to be in the "legal" marketplace, the lawyer may be excluded from that marketplace against both the will of the lawyer and of the marketplace.

For lawyers, there is something beyond the marketplace. It is not just the Supreme Court's rules. But, if we do not understand what that something is, if we do not understand why we have the RPCs, if we do not want to serve our clients far better than the minimal standards laid out in the RPCs, we are unlikely, in the long run, to want to remain lawyers.

Various surveys suggest that many lawyers are dissatisfied with the practice of law. Some lawyers undoubtedly became lawyers for the wrong reason, or for no reason. They discover that mistake only too late, they believe, ever to do anything about it. They then feel trapped in the law, hating it, hating their clients and fellow lawyers, and become bitter and cynical. Sometimes they became lawyers primarily to prosper financially, not realizing how hard the average lawyer works for very little compensation.

Satisfied and fulfilled lawyers usually give willingly, without regret, to their clients, to the profession, and to the public, without worrying about what, if anything, they may receive in return. They obviously need to make an income, but the income does not dictate their practices. They keep on giving even when they know there is no return. They continue giving simply because as professionals they want to and they know it is not only the right thing to do, but that without it they will lose far more than they gain by not giving away their services. They realize that the standards set out in the RPCs are not arbitrary, but are instead the best ideas that thoughtful and dedicated lawyers like themselves could come up with to resolve very difficult and competing interests.

Let's take a minute to reacquaint ourselves with the Preamble:

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.

Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which a lawyer may encounter can be foreseen, but fundamental ethical principles are always present as guidelines. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.

The Rules of Professional Conduct point the way to the aspiring and provide standards by which to judge the transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

The central message of the RPCs is in this short Preamble, not in the myriad details of the rules that follow. We each need to integrate the message of the Preamble into our everyday lives as lawyers. If we do not do so, we will forget why we are lawyers and lose our way as professionals. Our law practice will degenerate from a profession into a mere business. A client will become a mere customer, a source of income, not a person to serve.

Without an overwhelming reason, surely no sane person would devote his or her life to solving the complex problems of others, or to fighting and arguing for them with others paid to prove they are wrong, especially when we each ourselves have more than enough of our own unsolved problems. Without an overwhelming reason, surely none of us would willingly spend our lives reading dense and tedious statutes, administrative regulations, legislative history, or judicial decisions when we could instead be reading Homer, Dante, Chaucer, Shakespeare, Voltaire, Melville, or even a good mystery, romance, or the sports pages of our local newspaper. Without an overwhelming reason, surely none of us would spend our lives looking after persons who sometimes resent our very existence as professionals, who if we prevail for them conclude it was because they were right or innocent, but if we lose conclude it is because we are incompetent, corrupt and merely "part of the system," and who in any case often will not pay us after we have served them well. Surely, without an overwhelming reason, none of us would do what we each do, day-in and day-out, in our everyday practices.

Behind the drudgery, behind the often thankless long hours, behind the public's recurrent revilement and resentment of lawyers, lies the overwhelming reason we are lawyers: we are fiercely dedicated to justice and to the rule of law, for both the rich and for the poor, for the defenseless, and for the oppressed.

We believe passionately in assuring that the dignity of the individual attains respect and protection under the law. We are outraged at the inadequacy of legal resources available to maintain that dignity, and we weep when we hear that a domestic violence victim is now routinely turned away without legal assistance because she has not been physically beaten within the last 24 hours. Is that all that our society really means when it promises "justice for all"?

We are the guardians of the law, and we play an integral role in building and preserving a society wherein the dignity of the individual is treasured. We continually test and challenge and goad and lead our society to live up to its stated goal of providing "justice for all." We try daily to assure that the dignity of the individual is not lost to the prejudices of the majority.¹ 

At a great price to ourselves, we make a difference in the everyday lives of our fellow citizens. We in the legal profession — whether as judges, or as lawyers in private or government practice, as prosecutors, defense counsel, or as in-house counsel — are the means whereby our fellow citizens can seek and find not only access to justice, but justice itself. We demonstrate by our lives and profession that justice is not merely a destination or a result. Rather, justice is also a life-long journey of due process, of trial and error, of testing and retesting.

We can bring justice to others only if we ourselves fervently believe in justice, only if we are committed to and work for justice, and ultimately only if we ourselves are just. The Preamble to the RPCs reminds of our role in society and outlines why we as lawyers should be concerned with RPCs. The RPCs themselves guide us towards being just with our clients by setting out standards to help us.

The Washington Supreme Court, in 1985, adopted the RPCs to replace the prior Code of Professional Responsibility (CPR), which the Court had adopted effective as of January 1, 1972. The RPCs as adopted are overwhelmingly based on the American Bar Association's Model Rules of Professional Conduct. Washington did not adopt, however, the preamble to the model rules, which Washington's drafters described as "directed to the media rather than to the lawyers affected." Instead, Washington carried over to our RPCs, without substantive change, the Preamble to the CPRs. Thus, the RPCs Preamble has been the preamble to our lawyers' ethical rules for nearly thirty years, and has served as the Preamble to both the CPRs and the RPCs. This versatility itself recognizes that the preamble enunciates some of our core ethical values.

The values expressed in the Preamble to the RPCs and the CPRs are not newly discovered values for lawyers. The Preamble perhaps better articulates, however, in Alexander Pope's words, "What oft was thought, but ne'er so well express'd."² The core values enunciated in the Preamble are values that generations of lawyers have lived by. In 1887 the Alabama Bar Association adopted one of the earliest codes of ethics. That code served as the primary basis for the first national ethics code, namely, the American Bar Association's Canons of Professional Ethics. Washington State was the birthplace of those Canons when the American Bar Association adopted them in Seattle on August 27, 1908. Washington first mandated the canons as the required ethics standard for Washington lawyers in Section 20 of Chapter 115 of the 1917 Sessions Laws.

The Preamble to the ABA Canons sets out the basic theme of justice and the necessity for lawyers to be just that is later more thoroughly expressed in our present preamble to the RPCs. The Preamble to the ABA Canons, as in effect at the time the Washington State Bar Association was formed in 1933, included the following:

In America, where the stability of Courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing Justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic, to a great extent, depends upon our maintenance of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men. [emphasis added]

The message is again simple but eloquent: our society is based on the concept of justice, we lawyers play a vital role in the maintenance of justice, and for justice to be both done and seen to be done we lawyers must conduct ourselves ethically. Our current Preamble has expanded this simple message and helped us better understand its implications.

If we as lawyers do not each live the message of the Preamble, basically, to eat, drink, breathe and live a life in pursuit and in service of justice, we will lose track of what lawyers are all about, and we will lose the respect not only of others, but, more importantly, of ourselves. In the concluding words of the Preamble, so long as we are guided by the principles enunciated in the Preamble, "the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise." Are we living this life, or are we compromising? If we are compromising, we are not likely to be satisfied or fulfilled in the law. If we want satisfaction and fulfillment in the law, the Preamble guides us to it.

Notes