Searching for Character in the Practice of Law
The demonization of attorneys in popular media continues unabated. This time, a New York Post article on Matter of Wiesner, about an individual who, 22 years after imprisonment for serious crimes, 17 years after passing the New York State Bar Exam and numerous failed applications, was finally admitted to legal practice by a New York State Appellate Division panel. “Crook Demoted to Lawyer: Ex-con makes NY Bar”, the headline trumpeted. 
The article detailed the applicant’s criminality -- attempted murder, burglary, unlawful imprisonment, weapons charges, and illegal drug distribution and drew its bleakly comical conclusion. He broke the law in serious fashion; he served jail time for breaking the law; he is now admitted to practice the very law he so egregiously broke. Crook and counselor, brother ducks, joined in the pond of the disreputable.
Largely ignored was the evidence of glowing character references from prominent judges, a former law school dean, and other distinguished attorneys; and prior admission to New Jersey practice, four federal district courts, two Courts of Appeal and the U.S. Tax Court. Totally ignored was the reasoning as to how and why and when all of these factors congealed to overcome the objections to his nine prior applications and led the Court to conclude that he “has sufficiently shown that he possesses the requisite character and fitness for admission to the bar”.
“Character”, “character and fitness”, “character and integrity”, “good character”-- or simply “character” – of the applicant was the critical issue in this case, and the Post made quick, disrespectful work of it with nary a peep from leaders of the bar. Unfortunate but not surprising, for while state bars across the nation may screen applicants for character aggressively at the gate of admission supported by the courts, even sometimes paradoxically in seeming contradiction of the admissions process itself as in Wiesner, they choose largely to ignore character post-admission as a desirable status, and attacks against it in the public square, whether single (or simple) minded, as unworthy of challenge.
The English word derives from the Greek “charakter” which identified a particular mark impressed on a coin, “ethikos” (ethical) the adjective cognate of the Greek “ethos” (character). Aristotle applied it to people beyond mere surface individuality to mean high ethical standing of an exalted kind, “ethikai aretai” or simply “moral excellence”—an un-conflicted state of grace with deeply-etched values continuously applied to countless situations, such as honor, justice, loyalty, conscientiousness, courage, perseverance, nobility, and civility.
In a clear, contemporary formulation ethicist and former attorney, Michael Josephson, defines character as the sum total of those moral qualities that establish an individual’s sense of right and wrong, how he or she deals with everyday normal and extraordinary pressures and temptations. He views it as conscientious adherence to “six pillars” of values that transcend cultural, religious, and socio-economic differences -- trustworthiness, respect, responsibility, caring, fairness, and citizenship. Yale’s Stephen Carter finds it overlapping the standard of “integrity” he identifies, in his book by that name, as “the sense of wholeness .. like a whole number, a person somehow undivided … confident in the knowledge that he or she is living rightly … a person we can trust to do the right thing, to play by the rules, to keep commitments”. Conceptually, character, integrity, and ethics by pedigree and definition are correlatives. They speak to who attorneys should “be” rather than what attorneys should “do”, moral values, rather than one-dimensional rules of right action.
In the late 19th and early 20th centuries character for the first time, formally, was endorsed as a qualification for admission and credential to be coveted, courted, and cultivated for the duration of a legal career. Beginning in 1880, states adopted new entry procedures such as publication of applicant names and probationary admissions; five decades later, two-thirds of all jurisdictions required mandatory interviews, character questionnaires, committee oversight, or related measures. In 1905 the American Bar Association published the 32 “Canons of Ethics”, the first set of ethical principles ever applied to, and promoting, the profession.
The Canons expected: “exact compliance with the strictest principles of moral law”, obedience to his or her own conscience rather than the client’s, candor and fairness, attention to the administration of justice, and maintenance of honor and propriety while avoiding “even the appearance of impropriety”. In a word, they expected character, reflecting the views of Pennsylvania Supreme Court Judge, Robert Sharswood, who wrote in his celebrated “Ethics”:
There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law… The things we hold dearest on earth – our fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself, we confide to the integrity of our legal counselors and advocates. Their character must be not only without a stain, but without suspicion. … Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man. (emphasis added)
The Canons served as a primer on morality for 62 consecutive years but without companion disciplinary rules, which ultimately proved their undoing. For, as rapid industrialization and ever more rampant capitalism gripped the nation, the profession saw an increasingly greater need for practical, rather than aspirational, statements regulating the practice of law, enforceable obligations establishing clear standards of professional decorum, rather than “sweet words full of intellectual pablum”, as one commentator described the Canons, echoing the sentiments of many commentators at the time.
In 1969 came the Model Code of Professional Responsibility, providing sample rules of conduct for lawyers (called the Disciplinary Rules), while maintaining certain aspirational Ethical Considerations. In 1983, the Model Rules of Professional Conduct followed, eliminating the Ethical Considerations entirely. By 2003, 47 states and the District of Columbia had adopted the ABA’s Model Rules. In April, 2009, with adoption of its Rules of Professional Conduct, New York followed suit. The Model Rules are criminal-like, ground rules of conduct to be obeyed -- like the rules that govern professional sports, the National Football League, for example - some imperative (“shall” and “shall not”), some permissive (“may”) , and some prescriptive (“should”) – but none didactic. Companion to the Rules in many states (an appendix in New York’s) are so-called “civility codes” which outline minimum standards of conduct detailing obligations to fellow counsel and the court, especially in litigation, such as acting respectfully, keeping commitments, and avoiding actions that delay or harass.
But except for oblique references in both, neither the Rules nor the codes provide ethical, i.e. moral, guidelines as such, for in the words of scholars Luban and Millemann, they have “demoralized legal ethics” and in essence destroyed them, morals and ethics being one and the same. Simply stated, for all intents and purposes legal ethics no longer exist. Nowadays, the empty shell of the words appear as a label for the arbitrary allotment of companion “ethics” credits for substantive CLE courses; they really serve no other purpose. What attempts to fill the ethical void to guide attorney decision-making – the ground “character” formerly occupied ? The law itself – codes, cases, and court decisions – now the fundamental determinants of “right” and “wrong” for lawyers and society at large, according to professors Thomas Callahan and Joseph Allegretti. Law – amoral, pragmatic, utilitarian, law, they point out, is now the only shared means of discourse in ethical matters.
The problem, so far as guidance is concerned, is that law and morals are distinctly different domains. As Oliver Wendall Holmes observed, law is : “full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do, unless we have the boundary constantly before our minds.” He continues, “Law/is/ a business with well-understood limits, a body of dogma enclosed within defined lines.” It is not equipped to make moral decisions or recognize moral obligations which stand in “back of, and above all laws”, in the words of Holmes contemporary, President Theodore Roosevelt.
No coincidence, therefore, that the so-called Law and Religion Movement, founded by Allegretti and Schaffer, should originate at the bend (or fork) in the profession’s history as a rebellion of sorts by attorneys seeking to integrate religious values and perspectives into the everyday practice of law to fill the gap between morals and laws. And no surprise that the Movement has attained a nation-wide following not only among this group but also those simply seeking to lead principled lives accountable to personal conscience, transcendent goals, and traditional notions of character and integrity, who receive no praise or plaudits for pursuing and achieving those goals, but rather who are held accountable to a minimal standard of right action required merely to avoid sanction.
As we progress into the Internet era of globalization and gadgetry, with its ever increasing business and moral complexity, the response to two age-old issues may be more urgent than ever before: what attorneys will be obligated to “do” in client service and assignment, and what they will be obligated to “be” in performance. That the Model Rules periodically amended should effectively guide and discipline the former, with the law as back-up, though in after-the-fact, reactive mode, is apparent. That the Rules will almost certainly need the compliment of normative guidelines reinstituted, whether by a revival of the Canons of Ethics in original or amended form, or in a fresh presentation, is also apparent. Clearly the profession will require both to function reciprocally and responsibly. And at all times it will need good men and women in its ranks, to borrow Robert Sharwood’s terminology, even on occasion rehabilitated, former crooks who bang on the gates of admission with proof of their character and integrity until the gates finally swing open.
February 20, 2015
F. Taddeo Jr.
Matter of Weisener, 94 A.D. 3d 167; 943 N.Y.S. 2d 410; 2012 N.Y.app.div. LEXIS 2063; 2012 N.Y. Slip Op 2069.
 Dareh, Gregorian. "Crook Demoted to Lawyer: Ex-con Makes NY Bar." New York Post [New York] 21 Apr. 2012: 10. Print.