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Bar News - October 18, 2017

Opinion: No Circumstances Justify Deliberate Violation of Ethics Rules


NHBA Ethics Committee Responds to Bar News Opinion Piece

The Ethics Committee read with interest and concern a short opinion piece by attorney Philip Schreffler, published in the Aug. 16, 2017 issue of the Bar News and titled, “With Ethics Questions in Real Life, ‘It Depends.’” The article raises a question lawyers will face many times during their careers: whether “real life” circumstances can ever justify a deliberate violation of the Rules of Professional Conduct.

While the short article ends cryptically and without providing explicit guidance, it can be read as suggesting that lawyers can violate mandatory rules if the personal cost of compliance is too great. At the committee’s first meeting following the publication of the Bar News, members in attendance agreed unanimously that the opinion piece was flawed and potentially dangerous.

In the article, the author discusses the costs that mandatory rules frequently impose in the context of an extreme, sympathetic hypothetical: A young, married associate – dependent on his new law firm’s minimal salary and health insurance program as he and his wife prepare for the birth of their first child – is told by his supervising partner to conceal the financial assets of the firm’s client in responding to discovery. The client’s financial information is discoverable under court rules. The associate knows that his boss is telling him to violate an array of professional conduct rules, including NHRPC 3.4(a) (unlawful obstruction of access to material evidence); NHRPC 3.4(c) (knowing violation of court rules); NHRPC 8.4(c) (misconduct involving dishonesty and deceit); and potentially NHRPC 8.4(b) (criminal obstruction reflecting adversely on a lawyer’s honesty, trustworthiness and fitness). The associate seeks assistance from the firm’s senior partner to no avail. “Win the case at any cost,” she says, because “we don’t lose here.” The associate knows that if he refuses to obey firm management, he will be fired and he and his wife will suffer as a result.

Having set forth only grim choices for the young lawyer (losing a job or becoming an accomplice to serious professional misconduct), the author suggests that when difficult ethical challenges arise in a professional career, and the personal cost of ethical behavior is too “high,” lawyers are free to ignore the Rules. He states further that “any lawyer,” when faced with the “ethical snarl” of “what (to) do when the price of ethics is so high,” would respond with, “It depends.” The author is incorrect. He has, however, focused attention on an issue of importance for the bar generally.

We should make a couple of preliminary observations. Members of this Committee include several lawyers who concentrate in the field of legal ethics; lawyers of all experience levels practicing in small and large firms, government agencies, criminal defense firms, state and local prosecution offices, municipal departments and on the Professional Conduct Committee (PCC); and an esteemed law professor who over many years has taught professional responsibility to many of the active New Hampshire bar. The membership appointment process ensures a broad understanding of ethical practices in the bar generally. The author’s belief that “any” lawyer would adopt his approach to difficult ethical challenges is incorrect, and misjudges the bar as a whole.

Further, while professional misconduct sometimes occurs in secret, the article describes ethical misconduct that will almost certainly be disclosed by aggressive opposition discovery; that the client may balk at when faced with perjury in a deposition; and that the trial court will refer to disciplinary authorities without hesitation – and frequently in the form of a damning sanctions order. Even though committed on orders from firm management, this ethical misconduct will admit of no defense. And when misconduct is deliberate, involves dishonesty in any context, and threatens serious harm to third parties and the justice system, the disciplinary process overseen by the Supreme Court will always impose heavy sanctions. Some leniency may be available based on mitigating factors, such as inexperience and compelling personal circumstances. However, the sanction will always be severe and the professional scars will last throughout his career.

Additionally, the article’s focus on “real-life” ethical dilemmas can be read to suggest that today’s lawyers face a new array of ethical challenges that require more flexible compliance alternatives, including the option of disregarding mandatory ethical obligations when the personal cost of compliance is too great. The practice of law is obviously changing; the need for ethical conduct is not. (Editor’s note: Schreffler did not write the headline for his piece, which is where the phrase “in real life” appeared.)

Over a century ago, NH Supreme Court Chief Justice Charles Doe observed that a lawyer’s “honesty, probity and good demeanor” are ensured “by oath” and emphasized an attorney’s duty to avoid “any ill practice attended by fraud or corruption, and committed against the obvious rules of justice and honesty.” Ricker’s Petition (NH, 1890); cited in Kalil’s Case (NH, 2001). (The “oath” referenced in the Ricker decision exists today at RSA 311:6.) The values of the legal profession – and certainly the duties of honesty, trustworthiness, integrity and justice – are as important today as they were when our state was formed.

Compliance with Rules Often Exacts Personal and Professional Costs

While we disagree with the conclusions reached by the author, the article does seek to wrestle with an unavoidable part of law practice. Compliance with the Rules of Professional Conduct is going to exact costs. These costs may be financial, personal or professional. In extreme situations, they will cause major career disruptions. This is, however, by design… an intended result of rules that are enacted and enforced by state and federal courts.

By way of example only, these rules reduce the business that attorneys or their firms can pursue; prohibit deceptive or unfair strategies that a lawyer may wish to pursue on behalf of a client; mandate respect for the rights of an adverse party that the attorney’s client hopes to defeat; forbid promising business enterprises that lawyers wish to pursue with non-lawyers; and prohibit forms of marketing, advertisement and business solicitation that are used freely in other professions. More directly on point, the rules anticipate that in “real life” lawyers will face termination (from a job or from representation of a client) when they demand legal behavior by a client. Corporate or “in-house” lawyers are particularly vulnerable. See NHRPC 1.13(b) (requiring a lawyer to report illegal conduct “up the ladder” of an organization, and even to authorities “outside” of the organization, despite client instructions to contrary); NHRPC 1.13(e) (addressing lawyer’s continuing duties to the organization following termination from employment).

In short, situations occur regularly that create the conflict discussed by the author: clear ethical obligations on the one hand, and a heavy price extracted by compliance on the other. The issue is always whether we comply – and suffer the immediate adverse consequences – or ignore the rules because we determine, by some subjective standard, that the cost of ethical behavior is excessive. Under the rules, the decision is clear. We comply.

Risk Management and Basic Professional Satisfaction

The article suggests that lawyers can circumvent the rules if they believe that ethical conduct exacts an excessive price. There is no option that involves disregarding the rules; this is made clear by the rules and decisions of the NH Supreme Court. Such an option would abandon values that have been the underpinning of the legal profession for centuries; undermines a lawyer’s hope to practice law with self-esteem and satisfaction; and creates enormous potential for damage to a lawyer’s reputation and career.

Further, if the option the author has suggested is followed, injury to the legal system, the profession, clients and others protected by the rules will be substantial. Each of the mandatory ethics rules exists to protect clients, third parties, the legal profession or our system of justice. Ethical misconduct causes incremental damage to values, institutions and a justice system that we chose to honor when we became lawyers.

Finally, on a more personal level – even if a lawyer’s deliberate violation of the rules goes undiscovered, the lawyer will know. Except in the case of the most cynical and self-interested attorneys, this knowledge will make it impossible to derive self-esteem or professional fulfillment from practicing law.

Facing Difficult Ethical Challenges

So where does this leave us? What is the solution when – after making an enormous investment of money and time to become lawyers – we are confronted with circumstances such as those discussed in the article. The solution will never be to bend to pressure to engage in unethical conduct. Seek assistance – either within the firm from a trusted mentor or in-house ethics counsel, or from outside sources. Find an experienced lawyer who specializes in the defense of lawyers, the resolution of partnership disputes, and the various ethical dilemmas raised by our profession. Consultations outside the firm are encouraged and protected by the rules. NHRPC 1.6(b)(2).

More importantly, experienced lawyers practicing in this field have seen unethical behavior in a wide array of forms. They frequently will see solutions to a problem that may appear hopeless, and they will protect only your interests while the ethical issues are unraveled. It may be a disruptive time. Your career may take an unanticipated detour. In the end, however, you will preserve the potential for long-term, satisfying professional work.

The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for “Ethics Corner” commentaries by emailing Robin E. Knippers.

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