Old-School Ethical Heresies

 Posted on April 08, 2017 in Uncategorized

JBD asked for an outline of my TMSL talk on avoiding old-school ethical heresies.

"Ethics" training for lawyers usually focus on the disciplinary rules. But the disciplinary rules are law, not ethics. Sometimes the rules have nothing to do with ethics. Sometimes the rules provide no ethical guidance (so that what the rules allow is unethical). And sometimes what the rules require may be unethical.

For example:

1. Depositing client money into your operating account, while keeping meticulous track of it. This violates the rules (client funds cannot be commingled with lawyer funds), but is not unethical. (The rule is required because of the "keeping meticulous track" part - despite best efforts, lawyers screw this up and client money disappears.)

2. Revealing client confidences, to the client's detriment. The rules allow it in some instances, but it may not be ethical.

3. Suppose that your client, before going to prison for life, confessed to you in writing that he committed another murder. An innocent person is being prosecuted for that murder. Reveal the confession? The rules do not allow it, but ethics might require it.

Old-school ethical heresies are misconceptions about the disciplinary rules and ethics. They are generally passed down orally, as ethical folklore: The last generation teaches the next generation bad ethical habits. These heresies are what everyone knows to be true that isn't.

Three ethical rules will answer the vast majority of ethical issues that will ever arise in a lawyer's practice:

1. It's not about the lawyer, it's about the client.

2. Keep secrets.

3. Don't lie.

Bennett's Law of Rules:

For when the Disciplinary Rules command a course of conduct that just doesn't feel right, there is Bennett's Law of Rules.

If you are not prepared to proudly accept the consequences, you are not justified in breaking the rule. (If you are prepared to proudly accept the consequences, you may still not be justified in breaking the rule.)

Here are some examples of the differences between old-school ethical heresies and the simple rules that should instead govern lawyers:

Former client wants his file.

Old-school ethical heresy: Lawyer resists providing the file. There are parts of the file that he doesn't want the client to have for some reason, or he just can't be bothered. He argues "work product" or demands money for copies.

Simple rule: It's not about the lawyer, it's about the client. The lawyer made the file for the client. The file is the client's property.

Disciplinary Rules' answer: The file is the client's property. The lawyer can make a copy for her own records at her own expense.

Former client alleges ineffective assistance.

Old-school ethical heresy: The lawyer treats a claim of ineffective assistance of counsel (made by the client to get relief from a conviction) as a personal affront. She resists with all her might. She cooperates with the State to beat the client. She tells all, even if not ordered to, at the client's expense.

Simple rule: Even after representation ends, it's not about the lawyer, it's about the client. Keep the client's secrets. If you can help, then do so, but don't lie.

DR answer: In Texas, the Special Rule of Privilege in Criminal Cases (Texas Rule of Evidence 503(b)(2)) makes everything the lawyer learns "by reason of the attorney-client relationship" privileged. With few exceptions (none of which apply to the ineffective-assistance writ) the lawyer may not reveal anything privileged without the client's consent.

Not that the State Bar would necessarily provide that answer. But that's what the rules say.

Client refuses to plead guilty against lawyer's better advice.

Old-school ethical heresy: To cover his ass, the lawyer puts the client on the witness stand to "make a record" that the lawyer did his duty and informed the client of the plea offer.

Simple rules: It's not about the lawyer; keep the client's secrets.

DR answer: If the lawyer is covering his ass, there is a conflict of interest between him and the client, and he needs to resolve that conflict in the client's favor or withdraw. The fact that the lawyer told the client about the plea offer was learned "by reason of the attorney-client relationship" and is a privileged lawyer-client communication, nobody's business but the lawyer's and the clients. If the lawyer feels compelled to make a record of the good advice that the client has refused to follow, he should do it in a memo to his file.

Someone else's client calls seeking representation.

Old-school ethical heresy: The lawyer believes he must refuse to talk to the potential client, and calls up the current lawyer to tell him that the client called.

Simple rules: It's not about the lawyer; keep the client's secrets. Even before becoming a client, the potential client seeking representation is entitled to have her secrets kept, even from her current lawyer, even despite the relationship between the current lawyer and the new lawyer. The new lawyer can refuse to talk to the potential client, but he can also talk to the potential client.

DR answer: "When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer."

This rule - communications with one represented by counsel - is widely misunderstood by the bar. It does not forbid a lawyer from talking with one represented by counsel:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject....

The privilege attaches when the person seeks legal help.

Ethical Red flags:

If you hear a voice in your head saying things like these, you have an ethical issue:

1. The client wouldn't want me to do what I want to do."

2. "What's right for the client is wrong for me."

3. "That would hurt the client."

4. "That seems dishonest."

5. "Something feels wrong about this."

6. "Maybe I should ask someone."

If the three simple rules don't provide a single clear course of action ("Because of the simple rules, I must..."), and especially if you think Bennett's Law might authorize your breaking the rules, consult with a trusted counselor.

(Not this guy.)