My discussion of that sad case of the two elderly Connecticut sisters who are embroiled in a lawsuit over lottery winnings did not focus on their lawyers, and that was intentional. Though I spend most of my time teaching legal ethics, I only venture there on Ethics Alarms rarely, because 1) to do it right usually requires being technical, and technical is not conducive to 700-1000 word essays, and 2) most lawyers are bored by legal ethics, so non-lawyers figure to be bored even more.  A new reason became crystal clear this week, when I foolishly steered an issue involving blog ethics into legal ethics because the blogger happened to be a lawyer, was reckless with my terms, and ended up unfairly implying something I did not mean to imply. My apology for that fiasco is here.

Nevertheless, I should have discussed the role of lawyers in the Connecticut case. I am not privy to their advice to their respective clients, and for all I know, they may well have attempted what I suggest here. Whether they did or not, this case is an excellent one to reflect on what lawyers do, and ought to do.

Many readers have written to comment that this lawsuit is a perfect example of greedy lawyers goading clients into ruinous lawsuits so they can collect big fees. There is nothing to indicate that. All of us should have access to the law, and be able to use it fairly to accomplish our own objectives. The law is now far too complex, voluminous, and technical for most non-lawyers to do that, risking the creation of an illusory democracy in which citizens are supposedly making the laws but actually are slaves to them. One of the roles of a lawyer is to solve that problem, by being the means whereby citizens can have the same mastery over their own laws that they would have if they were skilled and trained lawyers themselves. It is the client’s objectives that a lawyer is bound to seek, not the lawyer’s; indeed, a section of A.B.A Model Rule 1.2 ( a section that is not a true rule at all but a statement of core principles) reads,

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

The lawyer’s opinion of whether a law suit is a good idea, or has worthy goals, does not have to enter into the decision to represent a client at all as long as the lawyer doesn’t regard the goals as illegal or unjust. The worthy goal the lawyer must consider is that citizens have a right to be able to use the law when a law can, or might, help them. If a lawyer thinks a lawsuit is a bad idea, he or she is required by other rules to let the client know why that may be, but once the client wants to do something, like get half of a state lottery prize (or to stop one’s sister from taking half of a state lottery prize), the lawyer’s job—a completely ethical one—is to use his skills to allow the client to do it.

Non-lawyers often ask me why a lawyer can’t just help the two sides  compromise and work things out without all the strife. It is usually unethical for a lawyer to do that, because a lawyer in an adversary role can only have one master: it is the adversary’s lawyer’s job to look out for the interests of the other party, and to compromise the interests of one’s own client to assist the interests of the opposing party is a breach of loyalty, and probably a conflict of interest. (Note: Sometimes this structure threatens to foil valuable innovations in the law. For example, a growing process in family law called Collaborative Law allows divorcing spouses and their lawyers to work out an amicable settlement out of court, with the attorneys motivated by  an agreement that requires them to withdraw from the representation if negotiation fails and the divorce end up in litigation. Strictly going by the ethics rules, this very useful device creates a conflict of interest.)

In some disputes, however, an attorney is in a unique position to help a client by applying exemplary ethics, which is conduct not required by any Rules or ethical principles, but which exceeds minimal ethical standards. In these cases a lawyer can act as the so-called “lawyer for the situation,“ a term coined by Supreme Court Justice Louis Brandeis, in which the attorney’s objective is to resolve a dispute rather than merely “win” for his client. Doing this without sliding into a conflict of interest is always difficult, but in the lottery suit, either or both lawyers would be serving the interests of their own client, and the other sister, by arguing to their client, sensitively, persuasively, that repairing the broken sibling relationship should be the main objective now, not the money. The lawyers might be the only individuals objective enough, persuasive enough and trusted enough to allow the sisters to avert a family tragedy and restore what has been lost.

The layers don’t have to do it, they are not obligated to do it, and  it is far from certain that they could succeed. Because lawyers are supposed to help clients solve their problems, however, it would be the most ethical course. Sometimes, the best advice a lawyer can offer is to settle a dispute without using the law.