Then the LORD said to Cain, "Where is Abel, your brother?" And Cain said, "I do not know. Am I my brother's keeper?" Genesis 4:9
Several years ago, a good friend of mine published an article (Douglas R. Richmond, Law Firms as Their Brother’s Keepers, 96 Kentucky Law Journal 231, 2007-2008) that caused me to ask the question — if the rules of ethics and professionalism are so widely known and universally accepted, why do so many lawyers behave so badly? The article, exceeding 40 pages, single-spaced and heavily footnoted, provided several examples of then-current lawyer misconduct and fraud. During the four plus years following Mr. Richmond’s well-researched publication, lawyer misconduct has grown in frequency and severity. For example, several recent public filings report criminal insider trading allegations against lawyers from very well-known firms with wonderful reputations. Other reported cases involve belligerent and profane communications, taking advantage of “faceless” voicemail, email and social media outlets. Aiding and abetting client Ponzi schemes and fraudulent tax shelters are added to the list, and the discouraging litany marches on without any sign of letting up.
Since lawyers are often considered guardians of our system of justice, it is critically important to instill a strong and instinctive ethical compass, always set on true north, to govern daily conduct — in the routine business of life and practice and in extraordinary circumstances. How does one propose to make these fundamental precepts of ethical behavior and professionalism work in the marketplace?
Legal Ethics: A Traditional View
Traditionally, the subject of legal ethics is viewed as a code-based assortment of rules that govern a lawyer’s relationship with clients (current, former and prospective), opposing counsel, adverse parties, firms, supervisors, subordinates, and the profession as a whole. Rules, of course, are designed to protect and reinforce the mandates of competence, diligence, communication, confidentiality, civility, integrity, truthfulness. Equally, the codes provide a number of prohibitions: unconscionable billing practices and conflicts of interests — conflicts between one client and another; conflicts between the interests of a client and the lawyer’s own self-interest.
The “metes and bounds” of legal ethics are identified by sources such as the codes of professional responsibility applicable (and sometime vastly different) in each of our 50 states and the District of Columbia; the American Bar Association’s Model Code of Professional Responsibility; ethics opinions from various local and state bar associations, stare decisis developed in American jurisprudence (court decisions such as those relating to disqualification of counsel, liability for professional negligence and misconduct, and enforceability of arbitration clauses in fee agreement, fee-sharing and unfair billing practices), and the multi-volume Restatement 3d “Law Governing Lawyers.” A legal ethics library requires several bookshelves to house the authorities, and the authorities are not static — there are new developments, new opinions, publications, blogs and webcasts all designed to communicate, teach and train lawyers on the subject of legal ethics.
The vastness of legal ethics seems much like Jewish Law’s 613 mitzvot or commandments, compiled in the Third Century from the Mishneh Torah. Just as The Jewish Law reveals the deficiencies in our lives, and our need for a redeemer (Rom: 3,20; Gal. 3:13 ), does this vast body of legal ethics simply provide the plum line to expose deficiencies? Is there another view of legal ethics to define, encourage, and reinforce, proper conduct?
Legal Ethics: A Non-Traditional View
The Four Corner Rule
In contract law, the “four corner rule” expresses the concept that the written document is complete, clear and unambiguous. If the agreement is expressed within the “four corners,” there is no ambiguity and no extraneous evidence is relevant to the meaning. Similarly, a practical and effective view of legal ethics, beyond the codes, opinions, and rulings, can be expressed as having four corners, four fundamental and indispensable elements. If one element fails, bad choices inevitably follow — regardless of one's knowledge of the Rules. First, robust accountability; second, courageous character; third, uncompromised teamwork; fourth, selfless perspective. Once these precepts become a lifestyle, one can count on reliable instincts and an ethical compass always is trained North.
Accountability is the first guiding principle. Sadly, phrases such as “what’s good for you/what’s good for me” and “you do it your way/I’ll do it my way” have become commonplace in our thinking, and those thoughts have turned into actions, habits and lifestyles. It is important, instead, that we begin a new mindset that communicates, “if you see something/say something.”
Broadly speaking, accountability is defined as “who are you when everyone is watching.” Thomas Payne appropriately warned that “[a] body of men holding themselves accountable to nobody ought not to be trusted by anybody.” Visible, candid, cooperative, communicative, transparent, responsible — these are the traits of accountability.
In contrast to “accountability,” character is defined by “who you are when nobody is watching.” Bill Hybels’ writings observe that there are no discount stores in which to sell character. Character requires consistency and resists compromise to achieve a life marked by courage, discipline, vision, endurance, compassion and self-sacrifice. Character is under constant attack from a number of distorted world views:
Hedonism: What matters most is pleasure, and the goal in life is to be comfortable and have fun.
Individualism: What I want comes first, and this world view has evolved into a culture of narcissism.
Lawlessness: Ends justify the means, and expediency prevails over integrity.
· We do not ignore what is wrong or unsafe
· We keep our promises
· We support everyone for doing the right thing
It is natural to value independence and self-reliance, but these values can easily morph into rogue behavior and virtual silos of responsibility. The principle of teamwork draws upon combined strength of our individual talents, skills, and expertise. Teams share trust and decision making, balance workloads, and accept joint responsibility for actions and decisions. Triton strives to build lasting relationships based on mutual trust and respect. We are better together:
· combining our expertise
· creating excellent relationships
· acting as if we are part of a bigger picture
· adhering to a fundamental set of values throughout our organization
· caring about how our actions affect others and the wider environment
· encouraging everyone to achieve their maximum potential
· appreciating the skills and abilities of others.
In The Love Dare, Stephen Kendrick observed that “[a]lmost every sinful action ever committed can be traced back to a selfish motive [and that selfishness] is a trait we hate in other people but justify in ourselves.” It could also be said that every unethical decision or action can be traced back to a selfish motive and that we hate unethical actions in others but are tolerant of our own. An ethical decision often requires a cost to our own self-interest. When tension exists between client service and firm profit, or between self-aggrandizement and the organization’s legitimate core values and mission statement, a choice must be made: “turn loose/let go” or “hang on/take hold.” That choice will drive an ethics based decision and affect an ethics-based lifestyle.
The true value of a human being is determined primarily by the measure and the sense in which he has attained to liberation from the self. Albert Einstein, “On Good & Evil”
William Rosen’s often cited 2010 book, The Most Powerful Idea in the World, recognized the importance of precise measurement. Without precise measurement, progress is “doomed to be rare and erratic.” But, with precise measurement, progress becomes “commonplace.” Bill Gates, discussing Rosen’s book, applied the measurement principle to the human condition and opined that incredible progress is achieved by “[setting] a clear goal and [finding] a measure that will drive progress toward that goal.” (WSJ 01/26-27, 2013)
To move toward instinctive ethical behavior, perform a self-audit, measuring “A.C.T.S.” in every context:
· To clients and customers: quality, cost-effective solutions, and long- term customer satisfaction.
How are you doing? How do you measure up?
Michael Kuhn is a partner and General Counsel at Bracewell & Giuliani, advising the firm on matters relating to legal ethics, compliance, risk management and professionalism. A graduate of The University of Texas and the University of Houston Law Center, he has served as an Assistant District Attorney under Carol Vance and John B. Holmes. He can be reached at Michael.Kuhn@bgllp.com