Do not Trick, Hide or Cheat: Ethical Duties in our Industry
“We make a living by what we get. We make a life by what we give.”
Please recognize that the topic of ethics is as broad as space and this in no way is an attempt to provide cliff notes to that entire universe. However, in the context of ethics and our industry, I find it interesting that we all tend to behave with a heightened sense of professional respect and integrity which is not necessarily required of us.
I was standing at a recent industry event with a colleague of mine from another law firm. We were talking about our busy year and some of the new case law that may affect our respective practices. While they are a competitor, they are also someone I trust. I feel lucky that our industry allows us to develop relationships with our competitors. This is not required of us, but it is something we do because it not only makes us stronger advocates but it also ensures our business community’s future success.
Beyond our duties to our clients we all have a duty to respect our community and those who participate in it. Even if rules didn’t exist to govern these relationships I believe our industry is unique in so far as competitors, vendors and clients all respect one another and work together to build a strong community.
Like most professionals, lawyers in California are governed by a series of ethical rules outlined within the California Rules of Professional Conduct. The State Bar of California believes these rules are so important that a violation of these rules by a lawyer can lead to sanctions and in some instances disbarment.
In addition to this, the most frequently tested subject on the California Bar Exam is Professional Responsibility. Since 2006 it has been tested on every exam. One could venture to guess the Board of Bar Examiners and the State Bar view this as the most important topic for future lawyers to be acquainted with.
In addition, every lawyer must pass a nationally administered ethics exam before they are admitted to practice law. This exam is called the MPRE and is administered by the National Conference of Bar Examiners. This is further evidence of the significance the legal profession puts on ethics. This does not, however, mean that one cannot expand these duties or behaviors.
I want to focus on two major categories of these rules that have an impact on our industry and the way in which we handle ourselves. They are: (1) Duties to the Client and (2) Duties to Others:
Duties to Client
Under the California Rules a lawyer owes a strict set of duties to their clients. In a general way a lawyer must zealously advocate for their client. For example, lawyers owe a duty of confidentiality to their clients, they must also be competent and they must vet conflicts. As you can imagine there are many more, but these examples provide some insight.
Client confidentiality in California is interesting in that a lawyer can, but is not required to, reveal confidential information. The rule states that a lawyer may reveal: “confidential information relating to the representation of a client to the extent necessary … to prevent a criminal act that the [lawyer] reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” By way of this example, it is clear that in California a lawyer is held to always err on the side of helping their client. And unlike some other jurisdictions, the disclosure of such information is permissive and not mandatory, thus providing evidence of the emphasis California has put on lawyers to protect their client’s interests.
While the duties to clients seem obvious and self-apparent it is their relationship to another set of duties that makes them significant in light of this discussion.
Duties to Others
When lawyers are sworn into the State Bar in California they must take the following oath:
“I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”
Notice that the oath does not limit itself to just the client, but rather it is much broader. In fact, under the rules an attorney has a duty to the world outside their client. In the context of zealously representing their client, a lawyer may not advise a client to break the law or bring a frivolous lawsuit. A lawyer cannot delay a case for the sake of delay or conceal or suppress evidence. In general, a lawyer must treat all with a sense of decorum and respect, regardless of whether they represent them. I have heard it simply put that a lawyer must not trick, hide or cheat.
While rules of professional conduct outline the outer edges of an attorney’s behavior, what we see in our industry is an expansion of these duties evidenced by our behavior when we gather as a group. As I mentioned above, the unique situation we professionals all find ourselves in is that we are all working to make our industry better and ensuring its future success.
We have our duties to our clients and our duties to one another, but we also have an expanded duty to grow the integrity and strength of our own community.
We do this by complimenting our peers on their work. By recognizing our own communities’ accomplishments. And by treating each other with respect even in the context of competition.
While we do not have a prescribed duty to behave this way we all choose to do so. So, remember, do not trick, hide or cheat. But more importantly you can always expand your ethical boundaries to include supporting your community.
Dylan D. Grimes ESQ.
ANGIUS & TERRY LLP