Bar News - August 16, 2017
Opinion: With Ethics Questions in Real Life, ‘It Depends’
By: Philip Schreffler
Why do attorneys break the rules? In answering this question a common theme emerges in our ethics CLEs. A lawyer mismanages a trust account to make money a little faster. He makes a mistake and tries to cover it up to save face. Or maybe, he just gets careless and slips up. Our ethics CLEs assume that unethical lawyers act unethically because they are either selfish or incompetent.
I am sure we are all familiar with a hypothetical like the following:
Q: A junior partner asks you to do something questionable relating to disclosures. Who do you report it to?
Q: When you report it to the senior partner, and she orders you to proceed, do you report it out? Quit? Come close to the line and hope you don’t go over?
Regardless of the answer chosen, the message is always the same: Ethics must always come before self-interest. No exceptions.
This is excellent advice. We should all strive to uphold the ethics rules at all costs. But in practice, things aren’t always as clear, and the costs can be much higher, particularly when resources are limited. Try this hypothetical:
A small firm hires you six months out of law school for very little pay. Your spouse is out of work. You can barely pay the rent, but are hoping for a raise. There’s a baby on the way, but thankfully the firm’s insurance is covering your healthcare costs.
Now let’s say a partner orders you to hide a client’s assets, or distort discovery. You do what’s right. You tell the senior partner. She doesn’t care. “Win the case at any cost,” she says, because “we don’t lose here.” The partners are watching this case closely, determining if you’re right for the firm, but now you’ve put yourself on thin ice. What do you do?
Following the Rules will get you fired, and might put your family on the street. Is it best to follow orders and save your family, but perhaps destroy someone else’s life or livelihood? It’s not something our ethics classes are equipped to deal with or discuss. Our CLEs always assume we are wealthy enough to endure being fired. Sure, you could sue the firm for wrongful termination, but where are you getting income from in the meantime, especially in the current market with a termination on your record and little experience?
Just about everyone has principles they would sacrifice themselves for. That’s what the Rules and our CLEs train us to do. But how many of us are willing to sacrifice the well-being of our spouses or children for those ideals?
This is the real ethical snarl that needs to be discussed: “What do you do when the price of ethics is so high?” It’s an uncomfortable question.
Any lawyer will tell you the answer.
Philip Schreffler is a solo practitioner in business law, risk management, and litigation serving New Hampshire and Massachusetts from Haverhill, Massachusetts.