Cover Story: Finding and Using Your Moral Compass: An Attorney's Guide to Ethical Conduct
|by Gregory P. Miller
Fall 1999, Vol. 62, No. 3
A lawyer's reputation, in great measure, is established by results. Although a large verdict or a successful prosecution can launch an attorney's career, how often do we consider the propriety of the means by which these results are obtained? Is the victory as sweet if it is gained through legal tactics that violate the ethical rules or our own personal moral standards? As lawyers, are we willing to ignore our moral compass in an effort to survive in an extremely competitive marketplace?
It is easy to point fingers at those lawyers whom we believe engage in unprofessional, unethical and/or immoral conduct. In most cases, however, the personal lives of these lawyers are very much like our own. They may be good parents and spouses. They may be very religious. Often, they are considered pillars of the community. For some reason, however, the personal standards of these lawyers have become disconnected from their professional standards. In a sense, they have lost their moral compass. How did it happen and how can we avoid the same trap? You might begin by examining how far you are willing to go to win a case. How would you answer the following questions:
- As a civil litigator, would you, through the use of objections or hyper-technical interpretations of your opponent's discovery requests, provide responses that fail to disclose otherwise discoverable information about your client?
- As a civil litigator, would you prepare your client on ways to be evasive so that the opposing attorney is unable to elicit any useful and otherwise discoverable information?
- As a prosecutor, would you rely on a strict interpretation of the disclosure and discovery rules to withhold information relevant to a defendant's case?
- As a criminal defense lawyer, would you present your client's "airtight" alibi evidence, even if you question its validity?
Many may answer "yes" to one or all of these questions under the mistaken assumption that the Pennsylvania Rules of Professional Conduct (the Rules) give you no option but to represent your client vigorously, without consideration of your personal standards or the propriety of your conduct. To the contrary, the preamble to the Rules, appropriately named "A Lawyer's Responsibilities," clearly requires consideration of a lawyer's personal moral conscience. The preamble states:
"Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers."
The preamble also recognizes that conflicts may exist between a lawyer's responsibility to a client and the lawyer's own moral convictions:
"In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules."
The obligation to exercise one's moral judgment is particularly important where the conduct in question might constitute "misconduct" within the meaning of Rule 8.4. Under this Rule:
"It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice." 1
Each of the examples previously identified could arguably represent a form of misrepresentation in violation of Rule 8.4. A recent Pennsylvania Supreme Court decision, Office of Disciplinary Counsel v. Anonymous Attorney A
addressed the line between misrepresentation and appropriate advocacy. In Anonymous Attorney A
, a district attorney allegedly made misrepresentations in connection with discovery matters in a criminal prosecution. In the separate criminal appeal proceeding, the state Supreme Court held that the prosecutor's failure to disclose to the defense a confession allegedly made by the defendant to his fellow inmate violated Pennsylvania Rule of Criminal Procedure 305(B). The court also held that the prosecutor's failure to disclose an "understanding" between a prosecution witness and the Commonwealth, regarding the scheduling of that witness's sentencing, violated the holding in Brady v. Maryland
The district attorney's defense in this proceeding was that his failure to disclose was based on his reliance upon office policies and practices.
| You Know You Have Lost Your Moral Compass When:|
- You spend more time preparing your "CYA" memorandum than you do your assignment memorandum;
- You do not feel uncomfortable when your boss begins describing an assignment by saying, "Now, if this makes you uncomfortable...";
- You are comfortable with a "technically true" answer;
- You need to know what the definition of "is" is;
- You are willing to sign a pleading after another lawyer in your firm refuses;
- You are pleased that the judge and your opponent did not find the case that directly contradicts your legal position;
- You blame the court or the "system" for a result that was caused by your shortcomings;
- You are comfortable counseling your client on ways to avoid the clear meaning of the law;
- Money is your only motivation for practicing law; and
- Winning is your most important goal.
In delineating the standard for evaluation of the district attorney's conduct, the court held that a prima facie case is made where the record establishes that a misrepresentation was knowingly made or made with reckless ignorance of the truth or falsity of the statements. 4
Recklessness is "the deliberate closing of one's eyes to facts that one had a duty to see or stating as fact, things of which one was ignorant." 5
The Pennsylvania Supreme Court's opinion makes it clear that attorneys no longer will be able to claim ignorance as a defense when their conduct results in either misleading information being provided or pertinent material being withheld. Before representing any fact as true, lawyers must conduct a reasonable inquiry and disclose accurately and completely the facts discovered.
If lawyers are guided by their personal conscience rather than their pecuniary interest, they will avoid violating this Rule. They also will realize that the tactics previously described often make little difference in the outcome of their case. An attorney's cleverly drafted discovery responses are often immaterial. Juries recognize overly prepared and evasive witnesses and seldom find their testimony credible. A prosecutor wins convictions even when helpful information is presented by defendants. Further, contrived alibi evidence is routinely rejected by juries who understand human nature better than most lawyers.
The real consequence of failing to allow our personal conscience to guide our conduct is its effect on the soul of the lawyer and of our profession. This loss of direction may explain the general dissatisfaction within our profession. How can you feel good if you are not living up to your own moral standards?
Many lawyers are morally adrift, unable to find their bearings and lacking the courage to stand up for their convictions. Find your moral compass and begin practicing law the way it was intended, with honor and dignity. Remember, "No guilty man is ever acquitted at the bar of his own conscience." 6
- Rule 8.4 Misconduct, Pennsylvania Rules of Professional Conduct.
- 552 Pa. 223, 714 A.2d 402 (1998).
- 373 U.S. 83, 83 S. Ct. 1194 (1963).
- Anonymous Attorney A, 552 Pa. at 233, 714 A.2d at 407.
- Id.; See also Office of Disciplinary Counsel v. Price, No. 486 Disciplinary Docket No. 3, 1999, WL 418317, at *4 (Pa. June 24, 1999).
- Juvenal, Satires, c. 120.