Chapter 4. Ethics & Professionalism - Guides for Hard Choices
In law practice as in life, the hard choices are not between good and bad, but between good and good, and between bad and bad. There are at least three main sources of guidance to which a lawyer may look in making those hard choices.
First, there is individual character of a lawyer who aspires to virtue, however haltingly and imperfectly. Leaning upon the cumulative effect of what one has learned from parents, grandparents, teachers, clergy, scoutmasters, mentors, and professional colleagues over a lifetime, one's professional conduct should be enlightened by the full scope of philosophy, theology, culture and common sense, but may involve no sanction more direct than the preservation--or loss--of the lawyer's reputation and soul.
Among the character-based considerations are seven classic virtues worthy of the attention of practicing lawyers. These include prudence, fortitude, temperance, justice, faith, hope, and love.
Prudence has been called the quintessential lawyerly virtue, requiring one to view reality without delusions, to deal pragmatically with the good and bad in human nature, to look before leaping, and to manage one's practice and finances carefully.
Fortitude involves both the moral courage to battle evil, and less dramatically, the perseverance to deal with the daily grind, year after year, without self-destructive patterns of avoidance, evasion, and procrastination.
Justice always has been hard to define, but for the individual practicing lawyer it requires a commitment to fairness in the legal system.
Temperance requires reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal, and family life. Unfortunately, depression and alcohol abuse are all too common in the legal profession and are involved in a high percentage of lawyer discipline and malpractice cases.
Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law.
Hope includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may somehow emerge.
Finally, love in this context involves a commitment to the Golden Rule, to do unto others as you would have them do unto you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff, and adversaries, even and perhaps especially those who seem most unlovable. Often that must be “tough love,” but one should not give way to hatred.
Despite the effects of legal education and culture, lawyers are still humans with hearts and consciences. In the pressures of each day, our worst mistakes are mathematical, as we miscalculate the brevity of life and the length of eternity. In light of those habitual miscalculations and the imperfect nature of mankind, there is a high probability that any lawyer who, after years contending in the trenches of litigation, claims never to have violated a rule of ethics or professionalism has a poor memory, is a liar, or both. But all must aspire and strive to a high standard of ethical and professional conduct.
While all fall short in some way, those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue's gallery of lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious, and indifferent to justice, truth, and the public good. The lawyer with a heart and soul, however, may seek in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one's own daily practice. One might hope to be at least a little worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as all the blacks in the balcony stand, and the Reverend admonishes Jem, “Stand up--your father's passing.” 1 Of course, we are not burdened with knowledge of the fictional Finch's daily grind of law practice in mundane situations devoid of potential for heroic drama.
Another novelist wrote that “[a] profession is like a great snake that wraps itself around you. Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.” Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever. It separated him from his soul, and it didn't get him anything other than a living.” 2 Lawyers seeking to retain their souls and some remnant of the “lightness of youth” through decades of litigation must seek not just to avoid punishment by following the disciplinary rules of conduct, but to adhere to a higher standard of professional spirit and virtue.
The author once overheard two old codgers talking as they sat on a bench outside a courtroom in Haralson County, awaiting their probation revocation hearings. The first asked, “what you in fer?” The second replied, “my wife's been runnin’ down my character.” The mournful response of the first guy was “I ain't got no character to run down.” Every lawyer should take care to assure that he at least has a character worth running down.
Second, the Rules of Professional Conduct provide the objective “rules of the road,” violation of which may result in disbarment or lesser discipline imposed by the State Bar and Supreme Court. The Rules became effective in Georgia on January 1, 2001, succeeding the older Code of Professional Responsibility and Standards. While fear of punishment is a low form of moral reasoning, it is necessary to define boundaries of conduct that is permitted or not permitted, whether or not it is moral. It would be a good exercise for every lawyer to spend an evening re-reading the Rules once a year.
Third, substantive and procedural laws, combined with the inherent powers of the courts, provide a variety of incentives and disincentives regarding a lawyer's conduct.3 Courts may enforce these rules through the contempt power, imposition of formal sanctions such as awards of attorney fees to an opposite party, or by adverse rulings that impact the client and may result indirectly in malpractice claims or fee disputes against the lawyer.4
Fourth, in Georgia, the Chief Justice's Commission on Professionalism sought to enshrine a portion of such moral standards of practice in the Aspirational Statement on Professionalism, and the bench and bar of Macon expanded upon it with their Assurances of Professionalism. Both are set forth in full later in this chapter.
1 Harper Lee, To Kill A Mockingbird (1960).
2 Mark Halprin, A Soldier of the Great War (1991).
3 See State Bar of Georgia, Rules of Professional Conduct, Preamble &p;6.
4 This chapter focuses primarily on what is, rather than what was or ought to be. However, a survey of the evolution of concepts of American legal ethics can give the practitioner an invaluable historic perspective. See generally Lee Tarte Wallace, Ethical Considerations: To Whom Does the Lawyer Owe His Duty? (Oct. 25, 2002) (Seminar Presentation, ICLE in Ga.) (excellent brief overview of evolution of legal ethics); Andrew R. Herron, Collegiality, Justice, and the Public Image: Why One Lawyer's Pleasure is Another's Poison, 44 U. Miami L. Rev. 807, 812 (1990); L. Ray Patterson, Legal Ethics and The Lawyer's Duty of Loyalty, 29 Emory L. J. 909, 921 (1980); Jack L. Sammons, The Professionalism Movement: The Problem Defined, 7 Notre Dame J.L. Ethics & Pub. Pol'y 277, 283 (1993); Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 Law & Soc. Inquiry 677 (1989).
On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.