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Bar News - April 4, 2003 Honesty - A Higher Standard Than the Rules From the Professionalism Committee By: Alan L. Reische Professionalism WE ARE SUBMERGED in the imperatives of honesty from our first days in law school. They permeate the Rules of Professional Conduct. Most of us are certain that we abide by those standards. After all, how difficult is it to understand that Rules 1.2, 3.3 and 4.1 require that you not mislead the court or your client, or make misrepresentations to opposing counsel or others as to a material fact? This is not – as John Cleese would say – a proposition out of Wittgenstein. But "material," like "appropriate," is one of those words that lawyers love. It intimates clarity and certainty, while remaining open to a variety of interpretations. And it leads us into that no-man’s land between ethical mandates – the bright lines set by others that we cannot cross – and professionalism – the norms of behavior we set for ourselves. Take a seemingly simple case: Attorney Smith’s clients are negotiating to sell their company to attorney Jones’ clients. Smith tells Jones that his client hasn’t agreed to sell the business to a third party even though Smith knows they have – Smith in fact prepared the letter of intent his clients signed. It’s highly likely that the misstatement will be material. It certainly will be if Jones and her client invest more time pursuing the purchase in reliance on these representations. This isn’t a professionalism concern, it’s an ethical one. So, doesn’t that resolve matters? Well, not really. There are patterns of behavior that raise significant considerations of professionalism even if they fall outside the scope of the rules. Let’s look at an example. You’re negotiating with another lawyer over a commercial agreement. His client wants the right to engage in certain activities; your client is reluctant to agree to that. You propose a middle ground to opposing counsel that permits his client to do what he wants, with specific limitations. You repeatedly discuss the proposal with counsel as you prepare to close. He agrees to it. When you get to closing, however, the other lawyer belligerently denies he ever agreed to the limitation and claims that you’ve tried to slip a last-minute change into the documents – a statement that is clearly at variance with the facts. He knows it, and his client knows it. It’s strictly a tactic to generate turmoil and extract last-minute concessions. Is this a violation of our rules? It’s a long shot; it would be difficult to say that it meets the materiality standard of Rule 4.1, and his statement has not been made either to the court (Rule 3.3) or to his client (Rule 1.2). A binding agreement entered into by counsel? Perhaps, depending on context, but in the business world, a client will authorize litigation to compel settlement only where the abuse is flagrant and material. For the most part, she just wants matters concluded, and she’s not all that concerned with your outrage. However, it’s not very difficult to tag that kind of behavior in the broader context of professionalism. As Justice Stewart said: "I know it when I see it." A misrepresentation is a misrepresentation, material or immaterial. Whether or not this is an ethical concern, it clearly is one of professionalism. Unfortunately, this behavior is far from unique. Some members of the Bar believe that it is sanctioned by the mandate to represent a client zealously. Others engage in it to avoid embarrassment for commitments improvidently made or for failure to follow up on important issues. A few practice it cynically, just to stay in fighting trim for when it really may count. But in the final analysis, motives don’t matter and we all pay the price. For with the passage of time, what clients on both sides are likely to remember is this: "Lawyers don’t tell the truth, and they don’t keep their word." The West Virginia Supreme Court of Appeals succinctly summarized these considerations in Lawyer Disciplinary Board Complainant vs. John E. Artimez, A Member of the West Virginia State Bar, Respondent, a disciplinary opinion released on Oct. 27, 2000: "The disciplinary rules regulating the practice of law in this state have been implemented to ensure that clients are represented by competent attorneys who practice their profession with fairness, honesty, and integrity. …A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice…Lawyers’ conduct should be characterized at all times by personal courtesy and professional integrity. In fulfilling their duty as lawyers to represent a client vigorously, they should be mindful of their obligations to the administration of justice. Lawyers owe to opposing counsel, the parties, the courts and the court’s staff a duty of courtesy, candor, honesty, diligence, fairness and cooperation…." [citations omitted] Our Rules of Professional Conduct don’t take us quite that far. However, our principles of professionalism can, and should. The rules establish minimum standards of behavior, not aspirational goals. Our credibility is a non-renewable resource. We should treat it accordingly. Alan L. Reische is an attorney with Sheehan Phinney Bass + Green and a member of the NHBA’s Professionalism Committee. Members of the Professionalism Committee regularly write on topics of professionalism for Bar News. Member dialogue on promoting professionalism in the practice of law in New Hampshire is encouraged. Share your thoughts on professionalism by writing to Professionalism Committee Chair Russell Hilliard at rhilliard@upton-hatfield.com or respond to Attorney Reische at areische@sheehan.com.
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