12,000 Days Later – What I Have Learned About Legal Ethics

It has been said that every problem looks like a nail if the only tool you have is a hammer. The point of that jape is that we are all prisoners of our own experience. Experience is the tool we use to understand the world, and its limits naturally define how we understand it. 

So you understand where I am coming from when I say that ethics is the most important part of your practice as a lawyer.

I did not always think so. I went to a good law school. I studied all the things that I was told were important, the familiar list of subjects you need to know to pass the bar examination. The Big Ones – contracts, torts, civil procedure, criminal law, constitutional law, evidence. What I did not know (because no one told me) was knowledge of these things was not particularly important for the practice of law. Important for passing the bar examination, yes, and valuable, but not particularly important for the actual practice of law.

The really important things were crammed into a single two-unit course that I took toward the end of my first year, titled Ethics, Counseling, and Negotiation. It seems strange to me now that 90% of what I do as a lawyer was covered in a two-unit course.

A two-unit course that no one, not even the instructor, seemed to treat as particularly urgent but rather as more annoying but necessary information. Many of my fellow law students understood the purpose of the ethics component of the course as a checklist of things to avoid getting into trouble. A negative approach, not an explanation of what it means to be a lawyer. That was state of the art in 1983.

And so I never even read the California Rules of Professional Conduct until the day I went to work for the State Bar of California, a little over 12,000 days ago. I had never given legal ethics much thought until then, not even when I prepared for the Multistate Professional Responsibility Examination required for admission. And when I say prepared, I mean that I did not prepare at all. Just pick the “goody two-shoes answer,” I was told. And I passed.

Like most of my peers, I had gone to law school to make a good living while doing interesting work, certainly not to change the world. I had experience before law school in commercial finance, so that was an obvious path to my first goal as a lawyer, to be a business trial lawyer.

But a funny thing happened on the way there. Working in the high-pressure world of business litigation, I began to see that there was something wrong with the environment I was working in. Something wrong with the win at any cost mentality I was expected to embrace. Something wrong with using the law as a cudgel to beat business competitors into submission. Something wrong in being expected to work seven days a week, 12 hours a day. I was, admittedly, a slow learner. It wasn’t until a bench officer called me into his chambers to blast me and my firm for filing multiple ex-parte applications intended for no other purpose than to drive up the cost of litigation for the other side, that I really knew I was on the wrong path.

On a cold rainy Saturday night spent in the law firm library on an impossible research assignment, I picked up the California Lawyer magazine and saw an ad for a job at the State Bar of California. Maybe I can do this for a couple of years while I figure out what I want to do, I thought.

Now, here I am, having spent more than 12,000 days laboring in the field of legal ethics, passing through a State Bar career as a staff lawyer, discipline prosecutor, and a manager, passing through a career as a private practitioner, defending lawyers in discipline proceedings and advising lawyers on the law of legal ethics.  

What I have learned is that legal ethics is not an afterthought, not a checklist of potential trouble to avoid but the vital organizing principle central to what our profession is all about. All the other stuff is important, but it isn’t coherent without legal ethics, which is at the core of our daily work. As the Court of Appeal said in McClure v. Donovan, (1947) 82 Cal. App. 2d 664 “An attorney has a constant and perpetual rendezvous with ethics.”

The Preamble to the American Bar Association Model Rules of Professional Conduct is the best statement of what lawyering is all about. I recommend reading the entire Preamble, but here are some of the highlights:

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.”

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.”

Neither the Preamble nor the Model Rules are the law in California. But our California Rules of Professional Conduct, which are binding law in California, refer to them, as well as other persuasive authorities, as important for interpreting the California rules (Rule 1.0 [comment 4] “In addition to the authorities identified in paragraph (b)(2), opinions of ethics committees in California, although not binding, should be consulted for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

Knowledge of the California Rules of Professional Conduct is a must for California lawyers, as is knowledge of the statutory duties binding on lawyers in the State Bar Act, principally, but not exclusively, in Business and Professions Code section 6068. Like any other body of law, it is presumed that a lawyer knows the Rules of Professional Conduct and the State Bar Act.  Ignorance is not a defense. The Rules are enforced through professional discipline, which can include suspension of license and, if the violations are serious, disbarment.

 Keeping up with the volume of binding, black letter law of legal ethics is challenging for lawyers because it is constantly growing. The new California Rules of Professional Conduct adopted in 2018, incorporating many of the Model Rules, is about three times longer than the prior Rules. But it is a challenge that can be met through self-study and MCLE.  

Legal ethics is not something that only affects “bad” lawyers. It truly is a constant and perpetual rendezvous for every lawyer that needs to be at the forefront of every lawyer’s consciousness. What I have learned about legal ethics after 12,000 days is that the most formidable legal ethics challenge is to break through the complacency and lack of focus that busy lawyers so often succumb to.

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