A few months ago, I was involved in a very ugly deposition while defending a lawyer in a discipline matter. The deponent was herself a lawyer, and while not technically the complainant, the moving force behind the State Bar complaint. Each of my questions were met with a string of silly objections by her counsel, a former law school buddy clearly appearing as a favor, followed by the two of them grinning at each other as if they had just done well on a law school examination. After a few hours of this, I thought I had enough to completely destroy her credibility at trial, so I ended the deposition. As we left, she hissed at me “How do you sleep at night, doing what you do?”. ”Just what is it that you think I do?” I asked. ”You get bad lawyers off!” she sneered. I shouldn’t have done it, but my professional thick skin had been worn thin by this point, so I replied “Your ignorance is showing.”
It’s a common perception. I have been told that my opinions and observations may be discounted because of the people I represent. It is certainly true that representing a certain type of client will influence your perception. That is one reason why every lawyer needs to have not only ethics but also an ethos.
What is the ethos of a discipline defense lawyer? Not getting bad lawyers off but:
- Insuring that the process is fair.
- Making sure the Respondent’s voice is heard.
- Achieving a result that is just.
- Helping the client to rehabilitate themselves from their misconduct, if they have committed it.
- Educating the profession and public about attorney misconduct and legal ethics.
- Working to change misguided law.
You can’t truly have ethics unless you have an ethos, even if you can’t always live up to it. Without it, you are just an animal in a cage of external regulation, responding to a fear of punishment. I once heard a fellow law student say that the purpose of our legal ethics class was to teach us how to get around the rules. With an ethos like that, I wonder where he is to today. Perhaps I will get a call from him tomorrow.
Complacency and ignorance about legal ethics are widespread. Ignorance is more easily remedied. Complacency is the tough nut to crack, in part of because legal ethics is often taught as that cage of external regulation rather than internalized principles to live your professional life by. No one likes being in a cage, so we resist.
So it turned out that the lawyer that I deposed informed the State Bar that she would not show up at trial despite my subpoena. We settled the case for what it was really worth. What sort of ethos do you suppose she has?