“The Ethical Lawyer” has moved.
I now publish from my own site at www.tarullilaw.com/ethicallawyer. Please update your feedreaders and bookmarks – your readership is always appreciated.
Also, if your interests lie along the lines of insurance litigation, have a look at my (nascent) insurance law blog at www.tarullilaw.com/insurancelawyer.
See you there!
There is an excerpt from a video deposition that has been making the rounds on YouTube for about the last year or so, that a lot of people seem to find funny. I am not one of them.
I suppose the custom would be for me to link to it, but I am not going to do that. I am not doing it because typically, most jurisdictions have rules that say that evidence obtained in a lawsuit during the discovery process cannot be used for any collateral purpose. How the video made it onto the internet, assuming that rule is operative in the state from which it originates, raises a whole series of other troubling questions. In any event, my view is that it would be a violation of that rule for me to further distribute the video.
Nevertheless, the disturbing content is a good case for ethical analysis.
I have argued that one of the more vexing problems for the practicing lawyer, and for professionals generally, is the extent to which non-professional activities ought to be subject to discipline by their professional associations. This is of particular concern to the legal profession. There are a number of reasons for this. The role of the legal profession has a public dimension. Lawyers often act in cases of public notoriety. In any event, lawyers conduct much of their work in a public forum – the courts.
Even when a lawyer does not work in a public forum, all lawyers solicit the public’s trust. A lawyer’s client reposes in the lawyer, his or her most serious problems and the most private details of their lives.
The impact that a lawyer’s private actions have on the profession was made clear in the case of Andrew Speaker. It is alleged that Mr. Speaker boarded a flight from the United States to Europe, to travel to various points in the region for his wedding and honeymoon. The allegation is that he did so after having been diagnosed with tuberculosis in January 2007. Mr. Speaker maintains that he was told he was not a danger to anyone, and has denied that he had been warned by doctors not to travel in his condition; however, media reports indicate that the Fulton County, Ga., Department of Health and Wellness tried to prevent Mr. Speaker from traveling in May 2007 because of concerns his strain of tuberculosis would make him contagious to other passengers.
The authorities were apparently unable to prevent Mr. Speaker from traveling. While Mr. Speaker was in Italy, officials for the Center for Disease Control made contact with him and advised him that he had been diagnosed with extensive drug-resistant tuberculosis. The CDC apparently offered care and special transportation back to the United States, however Mr. Speaker declined. Mr. Speaker has said that the CDC advised him that he should check himself into an Italian hospital and await further instruction and treatment.
Mr. Speaker disputes this account, as seen in this Wikipedia entry.
Although Mr. Speaker was originally diagnosed with extensive drug resistant tuberculosis, that diagnosis was later revised to a diagnosis of multiple drug resistant tuberculosis. It must be remembered that both extensive drug resistant tuberculosis and multiple drug resistant tuberculosis are less contagious than ordinary tuberculosis, notwithstanding that they are much more difficult to treat.
Mr. Speaker has since apologized publicly for having traveled knowing that he had tuberculosis, and was placed under quarantine since his arrival in the United States. He later claimed he was tricked into isolation. The CDC has not used its quarantine power since 1963.
It is important to note that none of these allegations have been proven in court. Nor, to my knowledge, has any investigation into Mr. Speaker’s conduct been commenced by any disciplinary tribunal to which he may be subject.
Let’s assume for the moment that the CDC’s account is correct, and that Mr. Speaker had been advised not to travel. In making this assumption, I want to be clear that I am making no comment on whether or not those are the true facts.
Should a lawyer in this situation be subject to discipline? Recall, that we are assuming a lawyer who is traveling against the advice of doctors concerned about the likelihood and consequences of infecting an indeterminate number of unknown people with a life-threatening disease.
I have argued it isn’t enough that a lawyer merely adhere to the law. The lawyer must demonstrate integrity, a commitment to uphold the law, and that he or she must avoid questionable conduct.
I am not a lawyer licensed in Georgia or any other U.S. State. Therefore, I make no comment on whether Mr. Speaker violated any laws. In fact, for the purpose of this analysis, it is convenient to assume that he did not violate any laws.
A strict rule-based approach to professional ethics would simply require that a disciplinary authority refer to its professional code to see if there has been any violation. The Georgia Rules of Professional Conduct appear to be based upon the American Bar Association Model Rules, with some revisions.
Interestingly, the Georgia Rules’ Preamble has omitted the sentence “A lawyer’s conduct should conform to the requirements of law, both in professional service to the clients and in the lawyer’s business and personal affairs. …” It does, however, retain the admonition that “…A lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. …”
Cold comfort indeed.
Rule 8.4 of both the ABA Model Rules and the Georgia Rules deal with “Misconduct”, however the Georgia Rules are even more permissive than the ABA version. In any event, neither contains any rule that appears to apply, since we have assumed that there has not been a breach of any law. On this analysis, our hypothetical lawyer escapes professional sanction disciplinary authorities.
Is this what we want as a profession? More importantly, would the public want this? The general public’s approval or approbation should not be the ultimate yardstick against which professional conduct is measured. It is, however, something that the profession must bear in mind. The essence of the lawyer’s function depends upon the public’s trust. If the profession does not sanction a lawyer’s private conduct which suggests that the lawyer would not place the public’s safety ahead of his or her private desires, then the public ought rightly to question whether the profession as a whole is worthy of trust.
Rightly or wrongly, the public has been quick to assume the worst case against Mr. Speaker. Even the cursory review of a simple Google search on the matter suggests that the public would be extremely dissatisfied in allowing a lawyer found to have engaged in the conduct that I have assumed for this analysis, to escape all sanction from his or her disciplinary authorities.
In this particular case, what ought to be the guide is whether a fair-minded member of the public, fully apprised of all the facts, would be satisfied with the result.
In the end, the legal profession is not well served by rules that ignore the impact of a lawyer’s private actions on the public’s respect both for the profession and the rule of law.
I suggest that model rules of professional conduct should articulate broad principles that acknowledge the public holds lawyers (and indeed all professions) to a higher standard of behavior even in private life. The heart of these principles for the private actions of professionals lies in the principle of uberrimae fidei, and the concept that the profession is accountable to the fair-minded, properly informed member of the public.
In future entries, I will explore the question of whether the disciplinary result would be different in Canada, together with an examination of what would be the disciplinary result of an analysis based on the concepts I have outlined.
The CBC reported today that Benazir Bhutto was killed this morning in an apparent suicide attack.
I can do no better than Slaw.ca’s post on the subject, which contains a number of links detailing the various ways in which the Musharraf administration has abused the bar and judiciary in Pakistan.
Benazir Bhutto represented that nation’s best hope for real democracy, and in turn, the development of a legal culture which respects the judiciary’s role in safeguarding the constitution, and the bar’s role in advancing arguments before the judiciary.
One can only hope that her loss will not deter the other from realizing the vision for which she advocated.
One thing I find disheartening – upsetting, actually – is the number of sites on the internet dedicated to denigrating lawyers.
Maybe it’s because as a lawyer, I don’t have the luxury of ignoring the central place in democracy that an independent bar and an independent judiciary must occupy. It is my constant obsession. That knowledge is with me each time I draft a pleading. Each time I sit down to negotiate and agreement for a client. Each time I stand up in court.
It’s there, because even the perception that a lawyer lacks integrity undermines the only guarantee we have in society that when we deal with each other – and when we deal with our governments – that we will be treated fairly.
That said, the standard mantras lawyers use to explain to themselves why the public takes such a dim view of the profession go only so far. When the jokes don’t stop; when the public clamours for the end of professional self-government; when the internet is rife with sites that decry the proliferation of absurd litigation (often for very good reason), and suggest lawyers are barely above criminality; and when people seriously purport to advise the public on how to deal with the profession (as if dealing with lawyers other than in an open and candid way is somehow misguided), then the profession must do some painful self-examination.
There must be a place, open to anyone who wants to contribute, where lawyers and others can go to examine and analyze ethical questions as they relate to lawyers, judges, the legal system and the judiciary.
Legal and ethical rules should be explained and applied in a clear-eyed, rational way, but it isn’t enough that a closed readership made up mainly of lawyers can understand the analysis. It must be a place where everyone’s input is welcome, and the analysis is understood by everyone – particularly non-lawyers.
When lawyers act in ways that exemplify and illustrate the noblest traditions of our profession, they should be commended. And when they don’t, the shortfall should be explained.
And that is what I hope to accomplish here. This is not a place for the apologist, but nor will it be a place where fuzzy-minded vitriol rules the day.
It is, however, a place for the high-minded. The idealists. The true believers in the once and future noble profession that safeguards our freedom and democracy.
