Friday, March 10, 2017

112th Installment. The Lesson for Ethicists from the Kellyanne Conway Complaint: General “Moral Fitness” is a Misguided Standard

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.