82nd Installment. The Scope of Legal Ethics
The profession must rethink legal ethics' scope: which rules define moral character, which rules merely regulate conduct, and what significance differentiates the two. The vast scope of rules purporting to be ethical itself oppresses lawyers and the public when it moralizes administrative duties, bestowing on their enforcers morality's undeserved imprimatur.
Try to solve the following hypothetical by William Simon. (See W.H. Simon (1999) Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433.) Although not Simon's intent, the hypothetical shows how today's versions of legal ethics disparage some desirable but amoral administrative rules, while over-enforcing, as if rules of ethics, other amoral administrative rules. Here's the hypothetical, a true story:
Simon discovers that Government agency fakes supevisor's absence to excuse unjust delay of client's food stamps. He impersonates supervisor's boss, bringing "absent" supervisor to the phone. Simon reveals own identity and confronts supervisor, who offers expected excuses and immediately releases client's food stamps.
Simon violated the governing Model Rules of Professional Conduct, which prohibit all lying to third parties or opponents, and in class discussion, most of his students criticized his conduct as unethical. For his part, Simon rejects "quasi-categorical ethics" in favor of a contextualized analysis, where the virtues of such "moral activism" shine through. I can't fault Simon's specific conduct: his students' arguments, too formalistic, don't persuade. Simon prevaricated but harmed no one, but focusing the discussion on an indigent client's oppression by a powerful and indifferent institution distracts the reader from considering that our adversarial system enforces the law of lawyering reciprocally: consider if a government lawyer deceived the client to discover misstatements on the client's application. The public reasonably demands a certain respect for the dignity of opponent and third parties by lawyers, whom the state grants a monopoly in their trade.
The rule should have been enforced against Simon, but the main question is how, as Simon didn't act unethically in breaking the rule: in context, he even acted admirably. To discipline him professionally would unjustly threaten his right to practice, when his conduct, not morally turpitudinous, betrayed no lack of fitness for legal practice, instead showing ingenuity and zeal. While Simon's students and the bar-establishment responsible for their thinking would accuse Simon of unethical conduct, Simon favors reforming the rules to permit the conduct, but both mistakenly accept the ethical (that is, moral) character of any good rule specifically governing law practice. To the contrary, violating a rule benefiting the profession or the public does not necessarily mark the violator unsuited for practicing law. Different ethical theories imply different assessments of Simon's conduct, but disloyalty to a client, lying to the client, lying about the facts or law in court, reveal a flawed character because these acts transgress core moral principles pertaining to an attorney's agency.
A jurisdiction's "law of lawyering" is often split between a code of ethics and an ordinary legal code, in California, the Business and Professions Code, but the section of the law's corpus in which a provision falls barely affects its content or the consequences of violating it. The law should recognize a material distinction between administrative rules and ethical rules. Rules like the general prohibition against lying in the course of representation belong in the legal rather than the ethical code. Rules that create an orderly profession but don't define the moral core of the law of lawyering should be enforced by civil fines and penalties rather than professional discipline, to deter undesirable conduct without supplying a disciplinary yardstick. Including rules besides narrowly defined ethics in an ethical code disparages the real ethical commandments, centered on loyalty to client and specific forms of truth telling, by equating them with administrative requirements. Most importantly, using administrative rules as if they were ethical rules subjects excellent lawyers of sound character to professional discipline.
A rule's amoral, administrative character shouldn't preclude its enforcement because of its not being a proper rule of ethics, but genuinely ethical rules aren't purely systemic, and only rules of ethics, those rules whose violation directly and incontrovertibly reflects adversely on moral character, should form part of the recognized professional ethics.