The Conditions for Ethics Reform

In an upcoming book, The Rule of Law and Development, Michael Trebilcock and Ron Daniels divide developing countries into three groups (according to an article in last week’s Economist):

1. Those where politicians, lawyers, and the public all support legal reform (e.g., Central Europe after the end of communism);
2. Those where politicians support legal reform, but lawyers and the police do not (e.g., Chile); and
3. Those where lawyers support legal reform, but politicians do not (e.g., Pakistan)

Legal reform succeeds only in the first of these three groups.

With respect to ethics reform, the same is true in the United States. It is not enough for politicians or lawyers alone to support ethics reform.

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Except where there is a scandal, it is easy for politicians to argue that ethics reform is unnecessary. And even where politicians succeed in getting ethics reform (either because their hand is forced or because good government issues are important to the leadership), the city or town attorney can often undermine its application, either in the way the reforms are written into law or in the way the reforms are administered (usually through interpreting the new law so that it favors government officials).

Rarely do non-government lawyers get involved in ethics reform. First of all, most do not have much knowledge of government ethics, and even though the essential elements are the same, legal ethics is very different. The most important difference is that lawyers provide oversight over themselves. There are no independent bodies involved. The result is that most lawyer discipline is of criminal rather than ethical offenses, most frequently involving a client’s funds.

Second, few attorneys seem to feel a responsibility for getting involved with ethics laws and, when they do, they tend to be conservative rather than reform-minded, partly because many feel that legal ethics rules go too far. Also, they are concerned about due process considerations, seeing ethics laws as akin to criminal laws, even when the possible penalties are very minor and there are limited resources available to an ethics board. They therefore prefer an ethics board without teeth, or no independent body at all.

Attorneys also do not usually favor disclosure, since confidentiality is an important value for them and their clients.

Since an independent ethics body with teeth and reasonable disclosure are two of the most important requirements of an effective ethics code, it is no wonder that lawyers do not generally support ethics reform.

Robert Wechsler
Director of Research-Retired, City Ethics