Tuesday, June 5, 2012

95th Installment. The Stephen R. Glass Matter and the Core Values of Legal Ethics

Even status-quo ethicists universally reject the California State Bar Court’s decision to admit compulsive liar Stephen R. Glass, who wrote scores of fabricated stories for the New Republic news magazine while he financed his law education from the booty. Many of these ethicists are guarded in their conclusions, but attorney Brian Ketterer, who is not an ethicist, deals with the problem directly to advocate a per se rule against the admission of serious repeat transgressors. The Bar Court’s incompetence warrants taking the proposal seriously, although the official ethicists are too insular even to comment. Whereas the proposal expresses the near-universal distrust of State Bar discretion, blameworthiness for character-and-fitness purposes must be measured by standards relevant to the practice of law; some misdeeds—such as drug offenses—may even be entirely irrelevant.

A few core values and moral capacities are indispensable for the ethical practice of law. Prefiguring the all-important loyalty to client, the central value for law practice is loyalty to those in whose interest the profession properly functions, and the expression of loyalty most relevant to law practice is honesty within the essential professional commitment. Loyalty and honesty together add up to more than the sum of the two parts. Neither loyalty nor honesty alone is an unconditional virtue for attorneys, who aren’t completely forthright with opponents or even judges and who inevitably have conflicting commitments—attorneys’ commitments to family, for example, will conflict with devoting their whole time for client benefit. What distinguishes the ethical requirements befitting attorneys’ exercise of agency on clients’ behalf is the duty to be completely honest in the context of the agency, telling their clients the whole truth and honoring the promises accompanying the representation.

Prior conduct expressing disloyal dishonesty should be the lynchpin of character-and-fitness screening. Glass’s twofold dishonesty illustrates how different forms of dishonesty should bear different weights in character-and-fitness hearings: Glass lied to his editors and he lied to his readers, but deceiving readers is by far the more important dereliction, a distinction going far to clarify the crux of the ethics fundamental to practicable legal representation. Glass’s relationship with his editor was just another business relationship, but his relationship with his readers goes to the heart of the ethics proper to journalism—the ethics required for practicable journalism. The chart below (click to expand) depicts the parallels between journalists and attorneys.
Glass was forced to admit performing acts of disloyal dishonesty impugning fundamental journalistic ideals. A journalist doesn’t lie to his readers for the reason an attorney doesn’t lie to his clients. That conduct is doubly disloyal: disloyal to readers (or clients) and disloyal to the profession’s essential ideals.