Whose Moral Principles?

Post date September 13, 2015
Post categories In Assignment, Published

Let me start by saying this that this is the first time I’ve ever been anywhere near a blog, and that my relationship with technology is tumultuous at best. So please go easy on me.

My post is concerned with Rachel Rodgers’ 21^st Century Lawyer Manifesto. While Rodgers makes some entertaining statements, I found a real point of contention with her number 6 that reads: “we value moral principles over ethics rules”.

I don’t pretend to be an expert; I’ve never worked in a law firm or anything closely relating to a job in the legal profession. In fact, my previous vocations include fixing cars, digging trenches, fighting forest fires (see above), and tackling people. So take what I am about to say with a grain of salt, but aren’t ethics pretty integral to society’s trust in the legal profession?

The term ‘moral principles’ carries with it a level of subjectivity that I’m not really comfortable with endorsing. The thought of relying on an individual’s sense of morality, in a world where people’s (including lawyers’) moral compasses are pointed in a million different directions, is a pretty scary premise. Imagine a situation where a lawyer would circumvent ethical standards in favour of their own moral beliefs.

In British Columbia, lawyers’ ethics are governed by the Law Society’s Code of Professional Conduct. The Code is available to the public, and outlines the ethical expectations of those in the legal profession. Anyone seen to have contravened this Code is brought in front of the Law Society for a hearing. Punishments for unethical behaviour can include fines, suspensions and disbarment. All of the information surrounding these hearings is also available online.

Rodgers claims: “ethics rules represent an outdated way of doing business and have not fulfilled their purpose—to protect the public from bad lawyers and elevate our profession”. I respectfully disagree. The entire purpose of the Code is to protect the public by maintaining the standards expected of lawyers. Any deviations from those standards are met with harsh penalty, which are openly available for any and all to see.

I agree that life as a lawyer in the 21^st century will be different from decades past, I guess, I wasn’t there. But as prospective lawyers there’s a good chance we could one day have significant and consistent impact on people’s lives. I argue that we need to maintain the objective accountability that our legal ethics provide, and that they cannot be substituted or relinquished. Despite the fact the legal profession will need to make some changes in order to maintain relevancy, there are some areas that should be left alone.

8 Comments

Ryan,

I’m an infographic geek so I love this stuff!

I really don’t know where she was going with Number 6, either. It’s a rather unclear and even bizarre comment.

Do we need ethical standards? Yes.

Will they change over time? Yes. The best examples may be the rules about advertising and fee-sharing.

Bedrock stuff, such as avoiding conflicts and client confidentiality should never change.

Ryan, I love the photo of you and your crew in the field. Busy lawyers sometimes refer to coping with one crisis after another as “fighting fires” – metaphorically. Thanks for reminding us what fighting *real* fires looks like!

Your point about the importance of ethics is well taken. A companion piece to read along with Rodgers’ manifesto is Bruce Godfrey’s “respectful dissent,” which echoes your point: “is it proper for attorneys as a collective to rely merely on ‘morality ‘s instead to have a system of rules defining attorney conduct and misconduct? I’d say no, that we need not only a sense of morality (which may vary dramatically because, after all, we come in all shapes, sizes, T-Shirts and tattoos) but also bright-line rules, the transgression of which results in attorney discipline.”

Of course ethics are good. Who doesn’t love ethics? The prospect of replacing ethics regulation with personal morality makes me think of that lady who’s been in the news so much lately, Kim Davis, the Tennessee clerk who wouldn’t give marriage licenses to gay couples because it was against her personal moral beliefs. In your job, your professional role and responsibilities trump your subjective moral preferences.

But let me play devil’s advocate for a second and expand on what I think Rodgers might have been getting at – I mean, other than just to shake people up a bit, which obviously is part of it.

The professional ethics rules that govern lawyers can be frustrating if you come to them with an idealistic view of the role of the profession and look for a reflection of that view in the codes.

Like ethical codes in other jurisdictions, the BC Code sounds noble and rather splendid. “A lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession.” It makes you want to stand up a bit straighter, doesn’t it?

But when you start digging into how these rules work you may notice that … well, ethics rules have a lot to do with protecting lawyers. For example: “An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service” (Commentary to Rule 3.2-1). You have a duty to provide service that is competent, timely, conscientious, diligent, efficient and civil. Sounds great! But … it might be inadequate. And even if it is inadequate that’s ok, you’re protected! (Maybe.) The rule says you still may meet the standard even if the quality of service you provided was inadequate. That’s quite convenient but maybe not so wonderful from the point of view of a client who received inadequate service. (Not that any of our graduates would ever provide inadequate service, of course.)

What about the crisis in access to affordable legal services? If you look at our course materials on self-represented litigants, it is nothing short of heartbreaking what people go through when they are faced with legal proceedings that affect their livelihoods, their homes, the custody of their children – and they can’t afford a lawyer. This has to be an ethical concern for the profession on the ordinary meaning of the word “ethical.” But it’s not in the ethics codes. See this post by the brilliant Adam Dodek on the fact that fostering access to justice is NOT an “ethical” responsibility in the technical sense, under the regulations.

Another possibility to consider: do ethics codes preserve the status quo (tradition) at the expense of mavericks, innovators, outsiders and squeaky wheels? Lawyers have an obligation to act with civility (in the BC Code, Rule 5.1-5, “A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings”). The also brilliant Alice Woolley has written about “civility” as a potential constraint on lawyers’ willingness to criticize others for professional misconduct (something to be taken very seriously by a self-regulating profession) and even to advocate zealously for our clients (which might involve doing things that are not nice, polite or friendly). Woolley also points out that civility is a culturally determined concept and “the historic collegiality with which civility is often associated is also connected to discrimination and intolerance for diversity.”

So, Rodgers’ pot-shot at ethics may not be all that eloquent or well supported (but maybe that’s the nature of a sound bite in an info graphic). On the other hand, perhaps the invitation she’s giving us to look critically at ethics codes and ask ourselves whether they measure up to the standards of “actual morality” (whatever they might be) is worth taking up.

I would have to wholeheartedly agree that ethical codes are still going to be relevant in the legal profession, but perhaps moral principles can play a different kind of role. I am thinking more along the lines of guiding lawyers in their personal online interactions. As we all know the internet can be a dark place and provides people with a sense of anonymity that allows them to be as mean and nasty as they want to be. However, this option to go online and be a jerk with no repercussions may be changing and this is where our moral principles as lawyers can play a predominate role.

In a recent class we heard a lecture from Brian Lamb who outlined some very illuminating but also very scary issues that are arising involving the online world and data gathering. For example, he discussed an article called “The Spy Who Fired Me”. This article written by Esther Kaplan described an online platform that allowed employers to analyze the online interactions of their employees. By doing this they could tell what you were doing online, how long you were doing it, and what you were saying.

So if previously you were breaking up the grind of being a lawyer by retreating behind a made up profile and trolling some poor person in an online forum, you may have to be careful of what you say. Your employer may be reading the things you say in those breaks and they may not like the sound of them. Therefore, moral principles can serve to step in and make that lawyer take the ten second test and ask themselves whether what they are saying is morally right, or more importantly would their employer think this is morally right.

In taking this ten second test we can ensure the moral principles of the legal profession are preventing lawyers from engaging in the dark debates of the internet, and instead maintaining the celebrated discourse our profession is known for.

Ryan,

Great post and interesting points. As noted by csykes, I think your post pairs nicely with Bruce Godfrey’s blistering critique of Rogers’ “The 21st Century Lawyer Manifesto” titled “A Respectful Dissent”.

What troubles me most about Rogers’ proposition is the ambiguity as to what “moral principles” actually are. Godfrey and cskyes have noted that “moral principles” will vary person to person, and often dramatically. Where such diversity is present, it seems naïve to suggest “moral principles” will provide any more protection than ethics rules.

In addition, Rogers goes on to mention that ethics rules have failed to “protect the public from bad lawyers and elevate our profession”. Rogers seems to suggest the inverse: that moral principles WILL protect the public from bad lawyers and elevate our profession. While a “morally principled” lawyer (whatever that means) may elevate the legal profession in some respects, it does not equate that they will have the necessary skills and abilities to be a good (let alone great) lawyer. Moral principles do not equal sound argument, or prudent advice. As such, ethics rules that require certain standards, such as legal competency, are fundamental to the regulation of the legal profession.

I am also in agreement that number 6 of Rachel Rodger’s 21st Century Lawyer Manifesto was a bit of a red flag. I believe that ethical standards are necessary for the legal profession to gain and maintain the trust of society.

The legal profession is already perceived as distrustful – granted, not by everyone – but there have been times when I’ve mentioned I’m in law school and have been on the receiving end of the “lawyers are dishonest” joke.

So, unlike Rogers, I believe that ethical standards set an important bar and are not out dated. Like Ryan said, if our profession is based on morals, this is far too subjective a standard. The Code, to me, is a mechanism that promotes transparency in the legal profession. As lawyers we carry a tremendous amount of responsibility. It is only fair that we be held accountable for our actions when we stray outside our ethical duty.

Excellent post Ryan and awesome comments! I’ve never blogged before, but I can see how this is going to become an addiction for me.

Although I agree to a certain extent, I would like to respectfully challenge this statement: “The Code, to me, is a mechanism that promotes transparency in the legal profession.”

One major issue I have with the exclusive control of ethics by the law society is that it is not an independent body. In other words, the people who regulate lawyers, are all lawyers, and some are still practicing.

This post is slightly due to the infusion of Administrative law in my brain for eternity, but how does that accord any impartiality?

Conversely, I think that transparency is negatively impacted by the Code because of who is in charge – I recall a case in Ethics, where an Ontario law student, applying for admission to the LSUC was initially denied because of a history of work place sexual harassment. The candidate did not meet the “good character” test initially, but was found to be of good character on an appeal. The candidate’s principal presented evidence and was likely the biggest driving force in changing the applicant’s circumstance.

I suppose the same could be said of other self-regulated professions, but I think my main point is that the Code and the Law Societies ought to be separate things.