A Moral Code for Legal Ethics
05/05/2014 - 10:20
Social commentators of all stripes generally agree: there is no God in the public square, nor is there every likely to be any time soon. For the square is buffeted by a string of “isms”, pragmatism, utilitarianism, consumerism, and an ethical relativism spawning values constantly being renegotiated in the service of individual self-interest and less and less society at large.
The only limit is law itself -- statutes, cases, and court decisions, now the predominant arbiter of “right” and “wrong” and only shared system of general ethics in the square, which consigns conventional moral values to an ever-swelling bin of relative choice. If it is legal, it is right; if not, it is wrong. Sacred or profane no longer relevant.
It is in this rough neighborhood where attorneys locate clients and are obligated to ply their trade professionally and ethically – and amorally. Today the bar administers a system of ethics known as the Model Rules of Professional Conduct (Rules of Professional Conduct in New York), hard-edged standards of behavioral minimum akin to criminal law carrying stiff penalties for non-compliance, some imperative (“shall” and “shall not”), some permissive (“may”), and some prescriptive (“should”). Nothing normative or aspirational about them. No reference to transcendental mission. No appeal to an attorney’s “personal conscience” or his or her moral values at all. In fact under the Rules, they are decidedly unwelcome, if not prohibited, at most a matter for client choice and directives attorneys must follow.
According to Stanford scholar Charles P. Curtis, attorneys are no longer “dealing with the morals which govern a man acting for himself, but with the ethics of advocacy. We are talking about the special…code which governs a man who is acting for another. Lawyers in their practice – how they behave elsewhere does not concern us – put off more and more of our common morals the farther they go in a profession which treats right and wrong, vice and virtue on such equal terms.” Consider the following response to a hypothetical posed at a recent CLE session:
At the end of a deposition, an adversary attorney accidentally leaves behind a red well containing many of his case documents, including client communications, personal notes, and research materials. Do you alert the adversary and return the file unopened, let it lay undisturbed and walk away, or review it in whole or in part for competitive advantage before taking any other action? A member of the audience, some 100 strong, answers that he would defer to his client’s instructions whatever they may be. With no specific Rule or law directly applicable to the issue (to his knowledge), with his obligation to advocate for his client as zealously as possible within the law and Rules, and with final authority for major decision-making resting with the client, he reasons, it is for the client to decide. No dissenting views from other audience members. The modern ethics of advocacy.
From the early days of the Republic to the early 20th Century, there were no legal ethics as such, no rules of conduct to guide practice, only a widely shared, unwritten moral code and expectations. The code had its origins in so-called “natural law”, that universal rational source of ingrained, self-evident, inalienable truths dictating actions and answers to all questions known and knowable intuitively through man’s ability to reason (Aristotle, Cicero), and in later expositions as sacred, systematic norms ordained by God revealed in the Judeo-Christian Bible (Saint Paul, Aquinas, the Founding Fathers) .
The Declaration of Independence identified it as the “the Laws of Nature and of Nature’s God”, the U.S. Supreme Court as the foundation for fundamental legal rights. The legitimacy of any enacted human law was measured by its consonance with divine natural law principles of right and wrong. What was morally wrong on an individual basis could never be ethically right on a professional level, morals and ethics pre-supposing a common base, namely God. It was a clear, harmonious standard that rendered certain conduct inevitable and other conduct unthinkable.
The industrial revolution of the Gilded Age in the early 20th century disturbed this harmony dramatically. The moral code would wane as an obligatory point of reference in professional decision-making. To ensure its survival, the ABA in 1908 issued 32 “Canons of Ethics”, imploring from attorneys (a) “exact compliance with the strictest principles of moral law”, (b) obedience to his or her own conscience rather than the client’s, (c) candor and fairness, (d) attention to the administration of justice, and (e) maintenance of honor and propriety while avoiding “even the appearance of impropriety”. The Canons relied heavily on the work of Chief Justice George Sharswood of the Pennsylvania Supreme Court who viewed attorneys as engaged in a “ministry of the Temple of Justice”, and concluded in Aristotelian terms, “No man can ever be a truly great lawyer, who is not in every sense of the word, a good man.”.
The Canons were applauded but also denounced both within and outside the profession. From within came the opposition of the so-called “positivist” school of law led by Oliver Wendell Holmes, which eschewed any connection between law and morality. Human conceptions of good and bad have no place in actual law and its practice, the school maintained. Attorneys are obligated to work professionally within that morally neutral framework. “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict,” Holmes declared in sharp rebuttal of Sharswood.
From outside the profession the Canons came under ever growing pressure on the Bar from business forces to reduce attorney moral standards in conformity with the retreat in the marketplace of conventional morality. In 1969 the ABA relented, and replaced them first with the Model Code of Professional Responsibility which contained a link to the aspirational Canons called Ethical Considerations, and 14 years later with the current Model Rules which excluded them altogether.
Binary in nature (i.e., they apply or not), the Rules multiply to cover new circumstances in ongoing refinements, but always one step behind the decision-making process as new events occur, like law itself (see Sarbanes-Oxley, e.g.). They are of little or no assistance, however, when issues arise needing immediate moral decisions for which this or any other Rule or law does not address – when they are sitting on the sidelines awaiting relevancy by the next amendment – or when clients simply cannot address such decisions responsibly from within the confines of their narrow self-interest. Balancing a client’s lawful interests against harm to opponents, for example, choosing strategies and tactics with problematic outcomes, making presentations to courts, clients, and adversaries that avoid fine lines of literal truth, distinguishing zealous advocacy from incivility, billing accurately and fairly, all the way down to “some little, unassuming, unobtrusive choice …/presenting/ itself before us slyly and craftily, glib and insinuating, in the modest garb of innocence” (in the words of Judge Cardozo), such as when it is appropriate (if ever) to tell little white lies about meeting or phone availability. Moral decisions galore, daily, endless, and enervating; with no assistance from the bar, and without access to conventional morality to serve as guidelines in rendering such decisions.
Should the bar consider rescuing conventional morality and personal conscience from their professional isolation and endorse their re-introduction in today’s legal ethics as a canon, creed, oath of office, or code to assist attorneys in this regard? Should it tap back into that extraordinary reservoir of values and principles rolled up over thousands of years – natural law reasoning, Biblical directives, the Greek model of character and fitness, etc. – which may still be of enormous value to the health and well-being of the legal system and profession, perhaps even the salvation of both, in the cyberspace world and beyond? Assuming that the answer to these two questions is affirmative, how could a vibrant, fresh new moral code be accomplished?
First it would need to meet certain qualifications. It would need to complement, in no manner contradict, the Model Rules and the law. It would need to be open to discipline by the Bar and framed in language the law can understand, the public square (and clients) can tolerate, and science and cyberspace can embrace comfortably. It might adopt the aspirational tone of the Canons, but not their religious and transcendental overtones. It would need to articulate values that could be continuously applied to countless situations in real time, never one step behind, after-the-fact like the Rules.
It might be based in whole or in part on the language of the secular natural law, i.e. pre-Paul and Aquinas, with edicts insisting on the steady exercise of “common sense and reason” in all decision-making (instead of values and morals); evaluations of all reasoning and decisions as “correct and incorrect” (instead of right and wrong); presentations of all facts and evidence as “accurate and precise” (instead of honest or dishonest); and conduct at all times evincing “enlightened self-interest” (instead of the Golden Rule and civility). It would reference the “wise man or woman” (instead of the “good” one); and between attorney and client a relationship based not on a contract, not an agreement, not an understanding -- but a “covenant”.
And finally, it would aim to re-establish the complete confidence and pride the Canons had in the character and integrity of attorneys-at-law by re-publishing the moral centerpiece of the Canons’ system of legal ethics, namely the injunction that attorneys at all times should “avoid even the appearance of impropriety”, the definition of which is always self-evident.
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