In
an overreach by academic lawyers that legal ethicists ought to have
anticipated, fifteen law professors have filed a complaint with the District of
Columbia Office of Disciplinary Counsel to sanction Trump-surrogate Kellyanne
Conway for dishonesty for her blatantly false statements. As ethicist Steve
Lubet immediately recognized,
this was a very bad idea. Impinging on the First Amendment, it would empower
the state bars to leverage disciplinary charges politically. What Lubet did not
address is, under the governing rule 8.4(c), why Conway should not be disbarred.
Rule 8.4(c) says, “It is professional misconduct to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” Conway has made statements to
hundreds of millions, such as the falsehood about a “Bowling Green Massacre,”
that would be broadly viewed as dishonest. The law-professors’ bar complaint provides a
fresh perspective on the rules governing moral turpitude, dishonesty, and moral
fitness, showing these standards are generally misguided.
Dishonesty
and moral turpitude are only partly interchangeable standards. Conway’s conduct
would be broadly viewed as dishonest, but whether it is morally turpitudinous
is less clear. Can lying be “honest hyperbole,” as Trump termed it in his deals
book? Closer to the point, is dishonesty always morally turpitudinous when
performed in the service of a higher ideal? Most people find lying justified
under some circumstances, and the D.C. bar expressly exempts agents of the intelligence
services from the ban on dishonesty. Cops, moreover, are allowed to become
lawyers despite their dishonesty with the public
being a virtual term in their job descriptions.
In
addition to the societal disagreement on what
is morally turpitudinous, there’s no consensus on the severity of ethical
disapprobation that should attach to noncriminal forms of dishonesty, especially
but hardly confined to politics. Are easily recognized blatant lies worse than
lies misleading voters on what policies a candidate intends to pursue, which
usually can’t be known if the politician dissembles? Conway is grossly
mendacious in the first way, but under the second standard, Hillary Clinton (to
take an example) was more mendacious than Trump or Conway. By her own
admission, Clinton stated, speaking to a closed audience of bankers, that views
she expressed publicly were systematically different from her real views. By
the second standard, separate views in public and private is, for a politician,
more mendacious than “alternative facts.”
Institution of an ethics specific to law expresses recognition that the ethics that should govern legal practice are not the ethics of general morality. David Luban’s error of judging legal ethics by ordinary morality has its counterpart in subjecting lawyers to legal ethics when they aren’t engaged in the practice of law.
Extending
legal ethics to cover areas where different ethical prescriptions do and should
reign, or where there’s no societal consensus on what kind of dishonesty
amounts to moral turpitude, promotes state-bar overreach. I’ve previously discussed
the overreach in the Arkansas bar disciplinary proceeding against former president Bill Clinton. A recent instance where some ethicists promoted
overreach was criticizing Sally Yates’s insubordination when she, as acting
Attorney General, refused to defend president Trump’s travel ban, justifying
her decision in part on ideological grounds. It is true that federal law
denominates the Attorney General as a “government lawyer,” and the legal ethics
pertaining to government lawyers requires that they follow orders or resign.
But then, if the ethicists are correct, why haven’t they formally complained
against Sally Yates? We may hope that they sense that legal ethics did not
govern whether Yates, in her political position as acting head of the Justice
Department—and not as a lawyer—was responsible to the rules of conduct
designed for lawyers while representing clients or practicing law before a
court.
Bar
and courts impede clarity about the proper domain for applying legal ethics by
insisting that lawyers are professionally answerable for “dishonesty” and “moral
turpitude” only for offenses that indicate lack of those characteristics
relevant to law practice. But the state bars and courts are disingenuous, as
shown by several observations. First, the state bars haven’t rewritten the
dishonesty or moral turpitude standards despite the judicial limitations on
their scope. Second, the supposed connections to legal practice are, without empirical
evidence, based on formal
similarities between types of unethical behavior. Third, neither the state
bars nor the academic ethicists have sponsored empirical studies on which forms
of dishonesty or moral turpitude predict unethical conduct in the practice of
law.
It
is not necessarily to be expected that Kellyanne Conway would perpetuate fraud
as a lawyer, in the absence of evidence that lying to the public to advance a
political agenda predicts committing fraud on clients or on the courts. Then
why are general dishonesty standards employed? It seems plain that they serve
to convey a public image of lawyers as honest and to counter the public image
that they are crooks. These criteria are not tailored for any screening
process, and legal ethicists should favor abolishing this public showmanship at
cross-purposes with the fair and effective regulation of the profession.
While dishonesty and moral-turpitude standards occasionally succeed in excluding psychopaths from the profession, they don’t accomplish this in a fair and objective fashion; and in fact, as in the Stephen R. Glass case, the state-bar apparatus has demonstrated its lack of skill in recognizing psychopaths. Psychopaths aside, as legal ethicist Brad Wendell has pointed out, the scientific evidence demonstrates the importance of situational as opposed to trait causes for ethical breaches.
General
dishonesty and moral-turpitude standards, as well as the whole practice of
moral- fitness evaluations, serve the maintenance of public illusions. The
notion that the state bars “protect the public" by screening the pool
of lawyers is part of this program. Instead of upholding general honesty
standards, legal ethicists should instead express their own intellectual
honesty by admitting that state bar discipline is punishment, justifiable only as a deterrent. The state bars should not presume to judge dishonesty outside
the practice of law – for the same reasons the D.C. bar should not hold
Kellyanne Conway in breach of legal ethics for her conduct as Trump publicist.