Beware attorneys, there be monsters out there (Part 2)

In Part 1, I described how a series of decisions--each of which appeared justifiable in isolation--ultimately led to professional discipline and disbarment. What I did not fully appreciate at the time was how quickly ethical boundaries can blur when relationships, client development and financial incentives begin to overlap. Part 2 turns from that personal history to the broader professional responsibility issues it illustrates, and to the practical lessons lawyers should take from how easily judgment can be compromised in the day-to-day realities of practice.

Professional responsibility issues with my conduct--let's go over them. I think you will learn there is a dangerous minefield in the practice of law if you do not diligently adhere to ethical standards.

I. A Lawyer must have an Ethical Compass and Maintain the Integrity of the Profession (MRPC 1.1, 1.3, 8.4)

Looking back, I indulged in a lot of wishful thinking, such as rationalizing my continued donations because Kermit's foundation did in fact exist and supported the school in Africa. 

My conduct damaged the integrity of our profession because my conduct received national attention. It is well-known that attorneys do not have a good reputation among the general public. It is an undeserved reputation because the vast majority of attorneys are ethical and competent and play a very important role in our society where the law should be king.

While studying professional responsibility for the bar exam, I came across a case in which an attorney was receiving personal injury referrals from a doctor. The doctor held an annual dinner to raise money for a charity, and the attorney spent thousands of dollars each year to purchase a full table. The State Bar Court found that the attorney's purchase of the tables benefited the prestige of the doctor, and that benefit was akin to making a payment to a non-attorney for referrals.

So, there you have it: even my first $5,000 donation to Kermit's charitable foundation, given in all innocence, was a violation of state bar rules.

II. Conflicts of Interest and Independent Judgment (MRPC 1.7)

Once I realized the referrals were conditioned on donations, how did I weigh my personal and financial interests against my duty to uphold the integrity of my practice?

I considered my conduct that of a victimless crime. I was helping my clients and the charitable foundation. Another example of self-delusion.

III. Duties of Honesty and Integrity (MRPC 8.4 (C), 1.2 (d))

I lacked criminal intent to commit tax fraud; but I violated the Rules of Professional Responsibility and the California Capping Statute, both of which were violations of my duty of honesty and integrity.

For there to be misconduct, the rules require intentional or reckless conduct. Thus, inadvertent mistakes or negligence may not rise to that level. The first rule is be honest with yourself. How would you assess another person's similar conduct? I expect your assessment will be far more objective and judgmental than how you view your own conduct.

IV. Whether conduct was a pattern or isolated incident

There are a number of court decisions that comment on whether or not wrongful conduct is an isolated incident as opposed to a pattern of conduct.

Kwasnik v. State Bar (1990) 50 Cal.3d 1061. In this case, the California Supreme Court emphasized that when misconduct is an isolated incident rather than part of a pattern, it weighs in favor of the attorney in reinstatement proceedings.

Tardiff v. State Bar (1980) 27 Cal.3d 395. The Court reinstated an attorney after finding that his conduct was an isolated incident in an otherwise unblemished career.

The State Bar trial judge opined that my misconduct was aberrational and was generous in his kind and encouraging comments. The State Bar prosecuting attorney, Michael Glass, was guided by ethics, not by a desire to win at all costs and demonstrated his belief that I should be reinstated by not cross-examining me at trial nor giving a closing argument designed to oppose my reinstatement.

V. Advice to future lawyers (integrating across topics)

What practice steps do I recommend to students for navigating gray ethical areas--especially in long-term clients or business relationships?

Keep a copy of the Model Rules of Professional Responsibility and the California rules handy for consultation and, this is important, contact an attorney who specializes in professional conduct and consult with such an attorney whenever you have the slightest doubt about your behavior.

How can a young attorney guard against rationalizing ethically risky conduct?

Know your values. Identify and reflect on your core ethical beliefs. Regularly revisit what kind of person you want to be.

Name the rationalizations that could seduce you. Common ones include:

·         Everyone else does it

·         Just this once

·         No one will get hurt

·         I deserve this

Recognizing these phrases as warning signs can act like mental speed bumps.

Use ethical framing.

   Ask: "Would I be okay with this on the front page of a newspaper?"

   Ask: "If someone did this to me, would I think it was fair?" 

Seek honest feedback: Talk to a trusted friend or colleague or, like I suggested earlier, consult with an ethics attorney.

If I could give my younger self one rule of thumb to stay out of trouble, what would it be?

I can think of a couple of rules: (1) If it feels wrong, walk away; and (2) think about how this will look if explained in front of a judge.

The lesson that emerges from this experience is that ethical lapses in the practice of law rarely begin with a conscious decision to violate a rule, but instead arise from incremental steps that, at the time, appear reasonable or even justified. Conflicts of interest, financial incentives and professional relationships can gradually distort judgment, especially when they are not carefully examined against governing ethical standards. The rules of professional responsibility provide the framework, but they depend on the lawyer's willingness to apply them honestly in moments of ambiguity and self-interest. Ultimately, the greatest risk to lawyers is not ignorance of the rules, but the steady erosion of clarity when convenience, loyalty or ambition begins to override independent judgment.