Do Our Ethical Rules Even Matter Any More?

There are days when I wonder if they do and today is one of those days. I just finished reading a court order where an attorney, who does more than his fair share of bragging by advertising about his aggressive tactics and is one of those attorneys whose weapon of choice is in using his motions practice as an automated document assembly line that just keeps churning garbage out day after day, ran into a little trouble. Well I just had to smile when reading that his client was ordered to pay the other side’s costs and attorney fees to the tune of almost $400,000. Can I have an Amen! But I digress. Let me turn the clock back just a bit and share another story.  

I had the privilege to moderate a daylong ethics and professionalism CLE some time ago that was mandatory for all newly admitted bar members in the jurisdiction where this program was being held. Always one to encourage vigorous debate and open discussion, I was both pleased and troubled by what happened that particular day. I do like working with new lawyers because they will often speak their mind and give voice to thoughts that more experienced lawyers might also have but would never dare say openly. So I was pleased in that risks were taken by some who had the courage to share their true feelings, yet troubled by where the discussion was going. 

Here is the gist of the position of one attendee. In his mind the Rules of Professional Conduct (Rules) were written to define someone else’s moral high ground in order to enable them to justify going after others who dare to disagree with that moral point of view. The perspective seemed to be that the very existence of the Rules was almost offensive to him and certainly an uncalled for restriction on one’s ability to practice as one sees fit. I do not believe that this individual was saying that anything should go, but he was willing to express a view that, in my experience, a number of other attorneys would agree with. In short, there are those among us who view the Rules as being written by disciplinarians who wish to force their worldview and moral beliefs upon the rest of us. Personally, I respectfully disagree.

As a risk manager, I am in somewhat of a unique position in that I am able to have private discussions with attorneys who are trying to work through ethical dilemmas and I am surprised at times to see how far some of our peers try to go in order to interpret the Rules in a way that will allow them to do whatever it is they are wanting to do. There is a desire to find that one comment or clause that will allow them to proceed which will be followed by real frustration, and at times even anger, if the “permission” they are looking for just isn’t there.

For example, there are going to be times when an attorney finds herself facing a conflict situation that appears to be non-waivable. The Rules simply would not permit the attorney to get involved, or remain involved if representation has already begun, under the circumstances in play. Yet, upset over the lost income opportunity of the potential new matter or fearing that she will be forced to withdraw after having “invested” significant time and money in the matter (all of which will become unrecoverable) results in her taking a position that having to say no or being forced to withdraw is not an option. At this point then, the Rules are liberally interpreted and/or rationalizations come into play as a certain clause or commentary to the Rules is twisted to justify the desired outcome. Others will go so far as to say, “Hey, there is nothing here that specifically says I can’t do this, so I’m going to do it until someone says I can’t.”

To make matters worse, these same folks will turn to the Rules if and when trouble follows and seek to use them to try to justify their decision. They will say that the Rules never directly said that what they did wasn’t permissible or they will present an expansive interpretation of some comment in defense of their decision. Here is my point. You don’t get it both ways. You can’t look to the Rules for justification for any and all actions you might want to take and then turn around and use the Rules as a shield against someone questioning the propriety of any action taken via a disciplinary complaint. Unfortunately, this is exactly what some members of our profession try to do.

In CLE presentations over the years I have had attorneys voice a belief that they view their practice as something they are entitled to have. After all, they paid their money, put in their time, got the degree,  passed the bar, and, by God, no one is now going to tell them what they can or can’t do as an attorney. Now, let’s deal with the reality that our profession is under attack and our reputation remains less than stellar and ask “Why is that?” Take a look at the legal news headlines any day of the week. How often do you see “Lawyer Indicted in Ponzi Scheme,” “Lawyer Charged in Mortgage Refinance Scam,” “Lawyer Disbarred for Theft of Client Funds,” “Lawyer Sanctioned for Inappropriate Conduct” or “Lawyer Loses License for Insider Trading.” Something is out of whack here and I am suggesting that part of the problem is the perspective of some who are in our ranks. The opportunity to practice law is not a right and the Rules were not written to be a self-serving tool that any attorney can try to use to justify any particular action taken.  

Ultimately, my thinking leads to this: As professionals we have been granted the incredible privilege of self regulation. With that comes responsibility and accountability. What we as professionals do with this privilege will dictate how long we continue to have the opportunity to self regulate and, for me, the Rules are essential. Our rules are not properly viewed as the shield we can use to protect us when trouble arises nor are they there to be twisted to justify any specific action an attorney might wish to take. Like it or not, there are going to be conflicts that are non-waivable. Sometimes the answer is simply no, that’s not allowed. The Rules are not an attempt by a select few to impose their morality on the rest of us. Our rules are our profession’s attempt to establish the guidelines by which we self regulate. Instead of viewing them as a shield or a sword, I suggest that we are better served if we view the Rules as the floor that we stand upon as professionals in order to exemplify what it means to be a true professional. These rules were not written with the intention of restricting an individual’s actions. No. The purpose behind them is to elevate our profession as a whole.

To answer my initial question, I do believe that our rules still matter; but when I read the legal news headlines and continue to come across court orders sanctioning lawyers and their clients for scorched earth tactics and the like, I begin to wonder just how long our privilege of self-regulation will last. As attorneys, all of us have been granted the privilege to practice in this honored profession. If more of us continue to lose sight of this and behave as if it is a right, then the problems of our profession will continue and there may come a time where self-regulation finally does become a relic of history.

With the hopes of preventing that outcome from ever coming to fruition, I encourage you to keep the Rules handy and turn to them for guidance when ethical dilemmas arise. Seek counsel from others when applying the Rules to a complex situation. Take pride in the fact that we have these rules and if you disagree with some aspect of them, participate in our rule making process in order to change them for the better. Finally, review them from time to time while always remembering that these are the rules that define who and what we are as professionals.

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