Ethics and Professionalism: 45 Years and Still Learning

Posted on December 16, 2017 in Uncategorized

The hardest part of writing or speaking about legal ethics and professionalism is to be able to do so in a manner that sounds neither superior nor arrogant. Please trust that I feel neither.

I was raised in the practice of law at a very fortunate time, one in which a premium was placed on collegiality and mentorship and not bloodletting competition. It was a time when you could just call any other lawyer, even one you did not know, to ask for guidance on dealing with an ethical dilemma. Even an opposing lawyer would take the time to assist a younger lawyer in becoming a better and more professional advocate. And trust me, there were many times I felt humbled by those "learning moments."

And believe me, the conclusion to those inquiries would always be the same and it is the same overriding advice that I hope to pass on to you. There is nothing more important to your career and to your successful advocacy on behalf of your clients, than your professionalism and ethical conduct.

I still feel humbled by the complexity of the many issues we deal with and the discussions we have in our law firm on a weekly and sometimes daily basis about the ethical and professional manner with which to deal with the many situations that have neither an obvious nor simple answer.

Unfortunately, the practice has changed since I was learning the ropes in two critical ways. First, prosecutors are younger as are many judges and many, even those more experienced simply do not understand our ethical obligations to our clients. And in today's world, particularly with judges, many have never actually represented a real human being; they have spent their career as a prosecutor or other government attorney. They have no concept of the ethical challenge and dilemmas we often face.

Additionally, in today's world, competition in the market has caused some lawyers to "win at all costs" or to do just about anything to hook a case. I will save the "Ethics in Client Solicitation" rant for another day.

So why is the subject of ethics such a big deal? Why do we spend so many hours at seminars dealing with the subject? Quite frankly, in our view, apart from the obvious reason that acting in a professional and ethical manner is the right thing to do, there is nothing more important to your career than your reputation for professionalism and high ethical standards. Put another way, questions about your standards can be the death knell to your success as an advocate, and can end your career.

But it is also true that having an ethical reputation makes your job easier and benefits your client. Just think of the many times you have to make a representation, either as to the facts or the law, to a prosecutor or a judge. Think of how much easier your job becomes when your representations are accepted on their face simply because of your past conduct. But creating such a reputation only comes from repetition and consistency in the way you handle your day to day situations, and one must never forget that while it takes a

lifetime to build such a reputation, it takes only a matter of minutes, the time it takes to utter a single sentence, to ruin it.

Client control is critical to an ethical practice. Indeed, it is often the client who creates ethical dilemmas. Two examples that any DUI defense lawyer faces with disturbing frequency: First, the client who is prepared to misrepresent their prior history, either with reference to their criminal record or their prior substance abuse. Which defense lawyer hasn't endured a client acknowledging a prior arrest, or conviction, but dismissing it because it was in another state and "they'll never find out about it!" and then despite your instructions do not include the information during the alcohol assessment?

The other frequently encountered situation occurs when the client brings in witnesses for an interview and the witness starts out with "what do you want me to say?" The response, of course, must be, "Just tell me the truth."

When a client is in control of the case, bad things can happen, both to the client and to the client's lawyer. When the lawyer is in control, bad things can happen to the client, but only as a function of the law. Ethical mistakes are much less likely when the lawyer is in charge.

The reason why dealing with ethical issues is so difficult in the day to day practice is that, with great frequency, there is no "bright line rule" or clear answer. The deficiency in the Rules of Professional Conduct come from the fact, that other than a few obvious issues, trust funds, candor to the court, etc. the Rules typically do not provide a "bright line." Rather they serve to provide guidance and "food for thought." For that reason, ethics must be in the forefront of every tactical decision the lawyer makes. Moreover, ethics should be a focal point of many of the conversations that you have with colleagues. Simply put, the lawyer can NEVER spend too much time on the ethical and professional elements of our day to day practice.

Creating an ethical reputation does not come easily, and in the course of one's practice all of us face challenges and situations that provide some of the greatest challenges of our careers. Consistency in the way you handle day to day situations and your relationships with prosecutors and judges is the only way to develop the right reputation and to keep it.

Just always keep in mind that there will never be one case, no matter how long you practice, that will be worth destroying that reputation. Now go out there and represent your clients with all your might. But do so in a manner that reflects upon your and our profession with the highest of ethical and professional standards.

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