Legal Ethics Heresy

 Posted on July 07, 2009 in Uncategorized


There are some who will tell you, "the disciplinary rules say X, so ethically you have no choice." That our lawyerly duties trump all others is a fiction thoughtlessly accepted by most lawyers and eagerly accepted by others who want to avoid the consequences of their actions. They are mistaken for three reasons.

First, you always can choose (from your own frame of reference, and presuming that you have enough awareness to question whether you have a choice and are physically able) to violate any law. Follow the law and avoid its penalty, or violate it and pay the price.Second, many disciplinary rules are not ethical rules at all. Ethics are principles, and as such don't change when you cross borders. The DRs, by contrast, vary from state to state-even, for example, in their definition of privileged client information: in Texas anything I learn from any source in the course of representing a client in a criminal case is privileged. I can't, according to the disciplinary rules, reveal it for the client's benefit without the client's permission. In most states (and in civil cases in Texas) what the lawyer learns in the course of representation from anyone but the client is confidential but unprivileged, and can be revealed without the client's explicit permission. (Are lawyers everywhere else "unethical" for following their rules instead of Texas's?)

Third, to the extent that they provide principled answers to actual ethical questions, disciplinary rules are not an alternative to human ethics, but an explication of how those ethics apply in the context of lawyering. In general, it's good to do the job you're hired to do; in the lawyering context, it's good not to accept employment beyond your competence. In general, it's good to let people own their own lives; it's good to abide by the client's decisions concerning the objectives of representation. It's good not to lie or cheat or steal; it's good not to lie to or steal from or cheat your clients. In general, it's good to keep the confidences of people who trust you to; in the lawyering context, this is of very high value because confidentiality encourages confidences, which are essential to competent representation not only in the individual case but also in the system at large.

Permit me to illustrate your ability to choose to violate the disciplinary rules:

Would you preserve inviolate your client's secrets if by revealing them (and only by revealing them) you could save your family from otherwise-certain annihilation? No? (If your answer is "yes", you're a liar or a pendejo, which is Mexican for "schmuck".) We're just haggling over the price.

Just as you didn't give up your right to keep your family safe when you became a lawyer, neither did you sell your soul or give up your right to live by your conscience. The deal you made when you became a lawyer was not that you would blindly follow the rules come what may, but that you would follow the rules or risk the consequences. The worst the State Bar can to you for violating the rules is disbar you. I can assure you that there are plenty of fates worse than that.

There's an oath, too, and as one Jacksonville lawyer pointed out in a comment to my earlier post, some lawyers swear to "maintain the confidence and preserve the secrets of their clients." Christianity (Matthew 5:33-37) and Islam (Surah 18 Verse 23) both discourage the swearing of oaths. The latter quite reasonably requires that any promise to do something include the caveat, "insh'allah" or "God willing"-explicit recognition that when we make a promise we can't anticipate all of the possible obstacles to keeping it. Non-muslims often append instead the words, "so help me God", to much the same effect. When you're a 24-year-old new lawyer, still wet behind the ears, there's no way for you to predict the situations that will test your word. Better that you shouldn't swear to more than you have to but, having done so, sometimes it is more unethical to keep an oath than to break it.

Aside from your family's survival and your ethics, what could conceivably trump the DRs? How about the Constitution? If there is a conflict between the DRs (for example, "don't talk to people represented by counsel") and the Constitution (for example, the Sixth Amendment), it is in no way clear that the DRs trump.

There is no disciplinary committee enforcing the Sixth Amendment; the courts should enforce it, but they do a crappy job at best. Does the fact that you're more likely to be punished for violating the DRs than for violating the Sixth Amendment mean the former take precedence? Of course not. Any good reason that the DRs, adopted by the State Bar, would be ascendant over the U.S. Constitution? Nope.

The DRs provide guidance for many of the situations we encounter in the practice of law-mostly the easy situations-but they don't cover everything. What happens when the rules conflict with what is ineluctably right?

I have no qualms about saying that at times it is appropriate for a lawyer to violate the DRs. In fact, when the rules are wrong for a given situation, lawyers have a duty-familial, ethical, constitutional, whatever-to violate them (and should be willing to pay the penalty: Bennett's Law of Rules). This is not a decision to be made lightly. The rules are well suited to their purpose-making the easy decisions easier. They are less well suited to making the difficult decisions easy. Deciding whether to violate a rule requires an understanding not only of the text of the rule, but also of its rationale and of the reverberating consequences of violating the rule. If you're not prepared to pay the full penalty for violating the DRs, then you're not violating them righteously.

You may never encounter a situation in which violating the DRs is justified. Perhaps it's even likely you will never encounter such a situation. If so, then why shouldn't you uncritically follow the DRs? Why bother doing any of the ethical heavy lifting necessary to make sure that the DR answer is the right answer?

Which would you rather be: the cog in the machine, doing the right thing because the rules compel it; or an ethical human being, doing the right thing because you've considered all of the options, and it's the right thing? For that matter, would you rather be the the cog doing the wrong thing because the rules compel it, or the human being doing the wrong thing because you've considered all of the options, and in your judgment it's the right thing?

I would, in all cases, prefer my decision to be based on my own judgment, which I trust, rather than the DRs. If I'm going to be right, I want it to be because I know I'm right, rather than because the State Bar (which does not necessarily have individuals' best interests at heart) says I'm right.

It might, I will grant, be better to be the cog doing the right thing than the human being doing the wrong thing. I don't think that's a likely outcome. A rigid system can never have the wisdom of a human being. This commenter argues that some people might feel themselves unable to make a tough ethical decision independently, and suggests that we should praise those who recognize their ethical shortcomings and cling to the DRs.

Ethics are like any other faculty: if you don't exercise them, they won't be available to you when you need them. In law, as in life, there are more fact patterns that are not covered by the explicit rules than fact patterns that are. Delegate your ethical decisions to the legislature (or the Supreme Court, or the State Bar, or anyone other than you), and your ethics will wither.

The critical thinking skills required to know when the rules are right and when they are wrong are the same as those required to help a client decide whether to plead guilty, whether to go to judge or jury, whether to testify or to decide whether to present a defense, whether to seek a lesser-included offense, how hard to cross-examine the child witness. In light of that, in lieu of praise for those who don't believe they have the ethical firepower to make tough decisions without instruction from the State Bar, I have a suggestion:

Whatever you do, stay out of the courtroom.

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