You pass the required ethics class in law school, graduate and pass the bar exam, and score high enough on the MPRE to be considered ethical in multiple states. But then you start practicing. As much as we may not want to admit it, and as ethical as we may try to be, we regularly encounter situations that make us pause and consider both the professional—and personal—consequences some ethical dilemmas pose.
Ponder the following questions:
Question 1: Do you believe you have an obligation to zealously advocate for your client?
Can you answer with confidence? Did the preamble to the Model Rules of Professional Conduct (MRPC) come to mind?
Question 2: Do you believe that obligation extends to situations that are not necessarily professionally unethical, but may violate your personal ethics?
Did this one make you squirm a little? For me, this one is really tough. We have an obligation to diligently represent our clients—to be their zealous advocates. But the same preamble instructs us to “conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.” See, MRPC Preamble & Scope. And MRPC Rule 8.4 states that it would be professional misconduct to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or to “engage in conduct that is prejudicial to the administration of justice.” Sometimes, our obligation under the preamble and our obligation under Rule 8.4 may seem to conflict. Other times, it is clear cut. And still others, we face a situation where the conduct we are seeing, or considering, is not necessarily dishonest, fraudulent, deceitful, or even prejudicial to the administration of justice—but may be a violation of our personal code of ethics. What do we do then?
Question 3: You just started working at a new firm and have been assigned your first case. The first thing you notice is that a friend of yours is opposing counsel. Your boss wants you to exploit your personal relationship to get the best outcome for your client. Do you agree to do so?
Did your answer to this question take a different turn than your answer to question number two? This is a scenario where the behavior you are being asked to engage in could be truthful and include no misrepresentation, but still make you question your personal ethics. In an anonymous survey posing these three questions to legal colleagues of various backgrounds, geographic locations, and areas of law, the responses were similarly diverse (except for the first question, which was answered in the affirmative across 100 percent of participants).
Of the 46 participants that responded to all three questions, it was a 50-50 split on responses to the second question. And to the third—21.74 percent responded yes, while 78.26 percent responded no. What was even more interesting was the dialogue this started. The survey included an optional comment box on the third question, where several participants distinguished their interpretation of the term “exploit.” To the extent that exploit meant using the friendship to their benefit in the litigation and for the advancement of their client’s interests, they saw no problem—many noting that having a friendship with opposing counsel often leads to better results for both parties. Other responses indicated it would depend on the particular friendship. Still others said that to the extent the meaning of exploit condoned blackmail, it would be a different story.
The biggest takeaway from the survey was that there is a fine line between personal and professional ethics. This makes sense given that personal ethics vary to such a great degree. The MRPC, on the other hand, draws the line for us in terms of ethics across our profession. But even with the MRPC, much is left to grey area and interpretation—hence the need for advisory opinions. And even beyond that, we may face situations where something makes us uncomfortable in terms of personal ethics, but is not technically unethical under the MRPC. We are then faced with the inevitable conflict of balancing our personal ethics with our desire and obligation to be zealous advocates for our clients. And what a delicate balance it is.
Kasey Mitchell Adams is an attorney in Jackson, Mississippi, with Butler Snow LLP. She currently serves as cochair of the Mass Tort Committee’s Young Lawyers Subcommittee.