Introduction

Is lying every justified?

Is it sometimes the right thing for an honest person to do?

Before you answer that, ask yourself if you are honest? Do you know anyone who admits to being dishonest? Everyone thinks of themselves as ethical, and they define what they do as ethical because they think they are ethical people.

1. Would you lie to save a child’s life? Would you have lied to save Anne Frank from the Nazis?

2. Would you lie to someone torturing you in war time?

3. Would you lie to keep your law practice from bankruptcy?

4. Would you lie to keep your wife from serious embarrassment?

5. Would you lie to avoid hurting someone’s feelings?

6. Would you lie to help a child with self-esteem issues?

What do you say when someone asks “does this make me look fat?”

So, are you honest? On the other hand, is there anyone listening who hasn’t encountered someone who wasn’t honest or who was unethical?

Let me tell you a story.

I knew an attorney who didn’t want to talk to a client. When they called, he stepped out of his office, asked a secretary to pick up the telephone and tell the client “he isn’t in his office, but I’d be glad to take a message.” He said “it is the truth, I’m in your office, not my office, so you can talk to them and not have to lie.”

The secretary did exactly what he asked.

I’ll bet most of you have known something like that to happen. It is no surprise that Quinn McKay makes that story a significant point in his book on Integrity.

What does it take to avoid deception vs. what does it take to avoid technical lies (consider what the law considers in contracts cases and fraud cases):

? Not stating things that are not so – outright lying.

? Not overstating or exaggerating a situation or condition.

? No understating circumstances.

? Not withholding information.

Is any or all of that really possible?

What about when you are negotiating a settlement or a position?

Or do we need to acknowledge that many common practices really are dishonest or can be dishonest? That sometimes almost anyone will be dishonest.

If we do that, then we need to teach that sometimes these things are the right thing for an honest person to do and come up with a new definition of what is appropriate – one that fits the ethics codes, duties, and the law.

Otherwise our intuition and our basic approach will not be enough to help us avoid ethical problems and it will not provide a guide that works in legal practice.

Talent is Overrated

That is, intuition is not enough. We should not expect that “integrity” or something similar is enough. The “natural integrity” or “natural honesty” is just another word for ethical talent, and talent is over rated when compared to practice and learning.

Introduction

Talent is overrated and slogans are worse. Slogans and sayings stop thought. If you have stopped thinking, you are on the path to slippage.

There is no innate ethical talent that is worth more than practice and preparation. That is because:

1. Most people do not have a good working definition of honesty.

2. The first mis-steps are small steps.

3. Principles are often in conflict.

4. There is always pressure from clients or superior’s, that affects decisions

5. The pressure of self-interest affects decisions

If you rely on Talent alone, you will end up in trouble. Try to play a piano with just talent and no practice.

Ethics are not any easier than playing a piano. To succeed, you need to have definitions, context and understanding to make ethics work.

Let us look at the points, using the secretary story above:

1. Did she have a good definition of honesty? If her definition had been “convey a true impression” then her actions would not make the secretary’s statement honest even if they managed to skirt the facts. A good definition of honesty will remove any question about whether or not a particular behavior is honest. While law does have an ethics code, sometimes a good definition that is easy to apply doesn’t seem as easy (though that will be discussed more).

2. Being aware of the slippery slope that leads from false impressions to intended false impressions to unethical behavior helps. The first steps are always small steps. If you are aware of what the first steps are in any set of unethical behavior you are more likely to be aware of when you are walking the wrong direction. Dodging a client for an attorney who wants to talk with them later is a small step.

3. Be aware of conflicting principles. In the story there are the two principles that most often come into play: the principle of honesty and the principle of loyalty. With the secretary example, the conflict is between the secretary’s desire to be honest with the client and the desire to be loyal to the attorney.

4. Every time an associate or a secretary deals with a partner in a law firm, there is pressure to make that person happy. Employment, bonuses, sometimes even physical safety are brought into play.

5. Self-interest – the sale of sub-prime mortgage derivatives for high commissions – need I say more? Without some sort of self-interest most unethical behavior just does not happen.

Self-interest is the thing that pushes most attorneys.

Self-interest permeates everything in law. It is all persuasive. Everything a lawyer does brushes up against self-interest. That may be obvious in a contingent fee case, but it is the same when a client’s satisfaction (and future business) is on the line, or when it is a matter of making billing targets or just fitting in.

The pressure of self-interest is constant.

Self-interest is intense and compelling and often the source of the positive things in life. People work long hours for the pay it brings. The more financial self-interest is involved, the longer people will work, the harder they will think and plan. But it is also the time they are most likely to think, plan and work around ethical barriers.

All of these factors makes ethical behavior much more difficult than you would suspect at first blush – and makes the simple aphorisms that most lawyers have to support them inadequate to the task. Otherwise, the aphorisms would be more than enough.

Learning Ethical Behavior

To learn ethical behavior, and to be prepared when you face ethical dilemmas there are some steps that make a serious difference.

1. Recognize that pressure exists and what kinds of pressure exist.

2. Eliminate pressure where possible.

3. Frame activities in tangible, easily defined boundaries (e.g. a request to disclose all potential witnesses means …).

4. Establish clear definitions and standards. Framing, definitions and standards that are clear and tangible are ones that work. E.g. never tell a client you are not available when you are in the office unless you are working on something else and then tell the client “X is working on something else and will be available at --- o’clock” – that is a tangible guideline with specific standards.

5. Create a system to self-audit your behavior. Look at ways to check up on yourself.

6. Practice ethical behavior – be mindful of what you are doing and why. You learn by paying attention when you practice.

7. Create a metaphor that works to re-inforce ethical behavior.

First I’m going to start with the metaphor(s). Consider the difference between the ethics that apply in a classroom and the ethics that apply on the football field. If your metaphor is the football field (or basketball or another sport) you know that some things are fair, some things are accidental and some things are clearly wrong. You can misdirect the opponent but you can’t line up twelve players, for example.

Share your metaphor with others in whatever group you are a part of and talk about how the metaphor fits into common situations you encounter.

Second, you need to define reality as not having gray areas. Instead, a gray area is a place where there is an unpleasant reality and where you have to set priorities, in advance, so that you can accept the pain. You have to pick principles that come first. Every time you start to think “this is a gray area” you need to see that as a time to stop, ask yourself what the competing principles are, and what priority you want to set and why.

If you have a client you don’t wan to bother you but do not want to lie to? Rather than engaging in the secretary shuffle (where you go into her office instead of your own and she says “x is not in her office right now”) you can have a policy that whoever answers the phone tells the client “x is busy with something else but if you leave a message they will get it and will get back to you by ____” and you can follow that up with “x is working on something that is ahead of you in line right now” (a classroom metaphor) or something similar.

Third, decide that whenever you find yourself thinking, “that is a gray area” that you will stop and analyze it and audit your ethics. That is a good way to set yourself up for audits and reflection. It also allows you to work on your metaphor, think about which principle will come first for you and gives you something to talk to others about.

Application

Story —why you don’t invest in client’s businesses (conflicts of interest). How many of you are aware of someone who got in trouble because they had a conflict of interest with a client over the client’s business when the attorney had invested in the business? Those happen. It seems, of course, that the client and the attorney should both be 100% in line, both want the business to succeed.

However, perhaps the attorney wants to sell to make money, or needs cash now and the client wants to wait. Perhaps there is a disagreement among owners of the business and the attorney finds herself or himself siding with others than the client who brought them on board. The reason for trouble is that by the time the conflict actually occurs the attorney is invested in a position and has self-interest pushing very hard in one direction, the client is suddenly going the other way and the attorney has more than one role or part to play.

That is why the rule that attorneys should not invest in client businesses without clear lines of demarcation – e.g. stock deals where the law firm does the deal and gets paid in stock that they will sell immediately after the IPO. That is a framing that keeps the client and the attorney aligned and provides for the attorney to sell out of the interest at a point before the interests might diverge (and, by defining when the sell off occurs also pre-terminates any potential conflict where the client might want to support stock values by not having the attorneys fee stock come on the market).

If you look at every “investment” that is accepted as ethical you will notice that what they have in common is predetermined short range termination points and deal creation aspects (e.g. putting together a shopping mall – the attorney is being paid with an interest or points as a part of creating the deal and is cashed out at the end when the deal is sold).

Story—why attorneys for parties need to be careful about becoming attorneys for the party’s entity as well. Pretty simple. Someone is Jane’s attorney. Jane brings them on board as the attorney for Jane’s partnership. Partners have a conflict with Jane, who does the attorney side with or does the attorney step aside? If it was a divorce, everyone would see the problem coming (and have the solution in writing, in advance).

Rule/Approach: treat every matter where you are an attorney for an individual and you become the attorney for an entity the individual is involved with (or you are the attorney for an entity and an individual who is also a client becomes involved with your entity) as you would if you took on an uncontested divorce that might become contested. Preparation trumps “ethical sense” in this situation.

In fact, preparation is the only ethical sense in this situation.

Story—why you never, ever write a check on a trust account (comingling money). How many people get disbarred every year for comingling funds and then having client’s checks bounce? If you never start, even in small ways (e.g. you forgot your checkbook but your wife wants you to pick up some milk on the way home) you don’t run afoul in big ways.

Story—why you always disclose what you aren’t disclosing (witness statement vs. report). Sometimes an adverse party may have a right to all witness statements in your possession. You may also have a report that some might consider a witness statement, but you do not. Gray area? Not even a gray area? Safe ethics situation? The clear response is to provide an answer that states “attached are the five witness statements. However, two reports are not provided as they are not witness statements.” That discloses what you are not disclosing.

The underlying rule is to disclose enough that the other side is aware of what is being done. That is the difference between “you can’t have the cell phone records, they aren’t relevant” and “no relevant records” in response to a request for cell phone records. One will cause you a lot less trouble than the other when a security camera photograph comes up showing the client talking on his or her cell phone at the time of the incident.

Questions (respond)

Take ethics in practice questions.

Time for audience participation and questions.

More Application

The Twelve Principles

Review twelve principles of ethics.

A general approach

As time permits, review the general approach to ethical behavior and learning ethics.

A. Obtain context and a framework. Which means ethics CLE and paying attention to the CLE. Just having the right framework for understanding can make an incredible difference for the way you learn and what you learn and how much you learn.

a. There is real value to advance preparation.

b. There is also real value to follow-up context reinforcement.

c. Coaching or ethics discussions from time to time helps re-enforce context.

B. Practice by:

a. Learning study or information acquisition in the following ways.

i. Readings on ethics.

ii. Treat law as a foreign language, learn the words and the new grammar

iii. Get knowledge from the right sources (e.g. pay attention to your state’s ethics rules rather than general codes).

b. Work on hypothetical situations.

C. Budget time to actually think about and focus on ethics. Reflecting on ethical issues will help you think of ethics as an issue to pay attention to.

D. Acculturation to legal ethics by thinking about ethics with other lawyers (e.g. talk about ethics issues with other lawyers).

E. Each person should answer the question for themselves: are there natural born ethical geniuses who don’t merely have acculturation and advance practice under their belts or is that just silly?

a. The true answer means that means anyone can learn ethics.

b. It also means that practice and attention are better than intuition and “natural” ethical talent (whatever that is).

Very truly yours,

Stephen R. Marsh

Attorney

Susan Cartwright & Associates

1301 E. Collins Blvd., Ste. 490

Richardson, Texas 75081

Direct (214) 570-6292

Telephone (214) 570-6300

Facsimile (214) 570-6262

Email: smarsh@travelers.com