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Bar News - August 17, 2012


Opinion: Three Steps to An Ethical Path

By:

Remarks made at the swearing in of new admittees by US Magistrate Judge Landya McCafferty, of the US District Court, District of New Hampshire on June 5, 2012. A condensed version appeared in the August 17, 2012 issue of Bar News.


Landya McCafferty
On behalf of all the federal judges, the Clerk of the Federal Court, and his Chief Deputy Clerk, Daniel Lynch, who is here today, I offer congratulations to each of you. I am honored to be among the first to welcome you to the practice of law in New Hampshire.

Before becoming a judge, I practiced law in this state for almost 20 years. I love the job of being a judge, but I miss practicing law in this New Hampshire Bar. The New Hampshire Bar is small and, as a result, you will get to know your fellow members fairly quickly. Lawyers whom I did battle with in trial are some of my closest friends today. There is nothing quite like a hotly-contested, lengthy jury trial, where two adversaries duke it out, but treat each other with respect throughout, and end up as good friends when it is all over. I cherish those friendships.

This Bar is all about collegiality and professionalism. Whenever I encounter a lawyer lacking the air of collegiality that characterizes the New Hampshire Bar, I immediately assume he or she is from somewhere else. And I am usually correct.

I spent most of my career as a public defender. I left that wonderful job to serve as Disciplinary Counsel for the state of New Hampshire, where I spent almost seven years prosecuting attorneys who committed ethical misconduct. Although I spent a lot of time dealing with lawyers accused of misconduct, I gained a unique appreciation for this Bar. I traveled all over the state visiting accused attorneys -- and attorneys representing attorneys. I found that the lawyers I prosecuted were -- in large part -- good people who had made mistakes, sometimes major mistakes. In my experience, it was the extremely rare exception to find a lawyer in this Bar who was truly a bad person.

It is not easy, particularly in this culture, to remain ethical, to stare down the temptation, whatever its nature, and do the right thing. No lawyer envisions themselves doing anything unethical when they are sitting in your seats, taking the oath, and being sworn into the Bar. I am here to tell you it is not so easy -- even for the most ethical among us.

Ethics is about context. What is the situation? Is your client asking you to do something that does not feel right, and demanding to withhold payment unless you act accordingly? Are you in court? Is the judge asking you a direct question that calls for an answer that will incriminate your client? Is a senior partner in your firm, a person with the power to fire you on the spot, asking you to do something that does not feel right? How do you, in whatever context you find yourself, stare down the ethical challenge and do the right thing?

A few minutes ago, you swore an oath in which you promised to act uprightly. I am going to give you some practical advice -- three simple things -- that will help you to keep that promise.
1. Make a habit of acting ethically.
2. Look to your heroes for inspiration.
3. Turn apology into an art form.
Let me explain these three pieces of advice in more detail. First, make a habit of acting ethically.

Habituation

Aristotle used the word "habituation" to describe how a person becomes ethical. What he meant is that ethics is a matter of habit. A person is not born "ethical." A person learns how to be ethical. So, my advice is that you incorporate "habituation" into your daily routine. The practice of law must be synonymous with "the practice of ethics."

Simply stated, if you do the right thing when faced with small, routine temptations, then you will be more likely to do the right thing when confronted with the larger, more serious temptations. What are smaller temptations? Let me give you an example. As a public defender, I negotiated with many prosecutors. It is so easy, and tempting, to exaggerate a favorable fact -- and make your client's case, perhaps a witness's testimony, sound better than you know it to be. I am talking about situations where no one will ever know that you exaggerated.

Only you will know. And that is when you need to stop yourself, and force yourself to be completely accurate. Make it a habit. If you get in the habit of making yourself speak the truth, around the edges, and on the minor points, you will find it much easier to deal with a difficult ethical dilemma, and do the right thing.

Some lawyers call a hefty exaggeration "effective advocacy."

Those are the same lawyers who are able to blur what should be a clear distinction between speaking a falsehood and speaking the truth. I urge you to be habitually accurate, and your practice of ethics will be hand-in-glove with your practice of law.

Heroes

My next piece of advice is somewhat personal; it has been helpful to me throughout my legal career. I share it with you and hope that you will find it helpful.

Who are your heroes? Who are the people who have had the most profound influence on you? Find photographs of these people, and put them in your office.

Why? Because they will be constant reminders of who you are and who you want to be, why you are a lawyer, and what is important to you.

I decided in the eighth grade that I wanted to be Atticus Finch, after reading the book, To Kill A Mockingbird. I found a photo of Atticus Finch (played by Gregory Peck in the movie version of the book). The photo was of Atticus addressing the jury during the trial of his client, Tom Robinson. That photograph has had a prominent place on the wall of my office since the day I was sworn in to the New Hampshire Bar.

I clerked for Judge Norman Stahl right out of law school. He is both a hero and a confidante. I have not made a single career decision without first consulting him about it. His photograph hangs right next to my Michael Jordan poster, a different sort of inspiration.

I have always had a photograph of my father very near my computer. I care about what he thinks of me.

These are just some examples of the photographs in my office. Whenever I have had to make a difficult decision, I think about how these people would react if they knew what I had done.

My moral compass was always more responsive to real life influences than to ethical rules and regulations. I suggest that this will be true for most of you as well.

Apologize

The third, and final, piece of advice is to learn -- how -- to -- apologize. As a lawyer, you will have much responsibility and power. You will have many cases and clients. It is inevitable that you will make mistakes. Unfortunately, law schools do not teach a course on the art of apology, but it should be made an integral part of your law practice.

As Disciplinary Counsel, I saw so many cases of lawyers making mistakes, even mundane mistakes, that they would then turn into disbarment/suspension level offenses by lying about the mistake. The lawyers were -- for any number of reasons -- too afraid to admit the mistake, and then they compounded it by covering it up.

I have so many examples of this -- one lawyer failed to file a timely discovery motion and rather than tell the client, he went to court and filed a document which he back-dated to look like it had been filed it on time. He could have simply apologized to the client for his mistake and then asked the court for permission to file a late motion. Instead, he was too embarrassed to admit error, decided to cover up this minor mistake, and was disbarred.

Another lawyer exaggerated a fact about her client and thereby misled the court and prosecutor. She was urged by a young associate to ‘fess up and correct the mistake. She refused to admit she had made a mistake, and the young associate -- who was horrified to have to do it -- reported it to the judge and corrected the misstatement. The judge reported it to the Attorney Discipline Office, and I prosecuted the case. I learned later that the judge would not have reported it had the lawyer admitted that the statement was misleading and simply apologized to the court. This particular lawyer came to her apology, but very late in the game. She was ultimately suspended from the practice of law. I have many, many more stories like these.

As Disciplinary Counsel, when I addressed groups of lawyers, they always wanted to know what I would consider the single best piece of advice to help them stay out of ethical trouble. My #1 piece of advice was that lawyers should learn how to apologize. A huge percentage of complaints are filed by angry clients who feel wronged by their lawyer. Had the lawyer simply acknowledged the wrong and apologized, those complaints might never have been filed. Disciplinary counsel would be out of a job.

Conclusion

My practical advice, then, can be summarized in three words: habit; heroes; and apology. Make ethics a habit, practice not cutting corners on the minor details, and when faced with a major dilemma, you will be better able to handle it -- whatever the context. Surround your workspace with photos of your heroes. Use them as a constant source of inspiration. And finally, accept that you will make mistakes. When you do, admit error and then apologize.

Welcome to this noble profession. It is a vocation, a calling. We are each called to be honest servants and good human-beings.

On behalf of my judicial colleagues, and the entire staff at the federal court, I offer you congratulations, and I look forward to seeing you in federal court.

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