Not every wrong act violates a black-letter ethics rule

Among the cardinal virtues promoted in Greek antiquity and classical Christianity are fortitude, prudence, temperance and justice. Prudence (originally, providentia, contracted to prudentia) is the wisdom and discipline to apply principles appropriately, reasonably and in proportion. Latin Christianity derived these terms from Plato through Cicero and the early Fathers of the Church; the English terms are Latin in origin but the cardinal virtues are not unique to the Church of Rome or indeed even to Western Civilization.

Part of prudence is knowing not only the content of a principle or rule but understanding that content its logical purpose. Sometimes rules are designed to provide for maximum liberty or economy of restraint; the common law jurisprudential principle that things not prohibited are permitted is such an example. On a football (American/gridiron) field, a player inside the field of play may, with some explicit exceptions for some plays and positions, use the entire field and may not use or take direct advantage of the field outside the sidelines. The purpose of the sideline rule is two-fold: to designate a field of full competition and a boundary beyond which competition may not play. Similarly, the boundary between pass interference and a legitimate contest for the pass by a defensive player represents a desire to promote some competition (tight coverage, threat of an interception) while prohibiting other competition (cheap no-skill brutality to kill a pass reception.)

Other sets of rules are designed to provide specific but non-exclusive prohibitions towards the support of more general goals. Rules of professional conduct for attorneys, including the modern Model Rules published by the ABA and their local incorporations in various US jurisdictions, constitute such an example. Ethics as a rule set are not intended to express the totality of the ethical duties owed by an attorney to a client; while disciplinary proceedings may require a black-letter violation of a given code, ethics includes but does not terminate at the boundaries of black-letter rules for several theoretical and practical reasons.

Under the Model Rules, from which most states’ codes are derived, Rule 8.4(d) constitutes a “junk drawer” for bad attorney behavior that, in some way, is “prejudicial to the administration of justice.” When in doubt, call it an 8.4(d) violation and see if it sticks. While novel applications of Rule 8.4(d) might be in some ways unfair to attorneys from the perspective of parsimony and construction against the enforcer code-enforcement standpoint, it gives the attorney implicit notice that some behavior just damages the administration of justice – by making the Bar look bad, by lowering public confidence in the legal profession, by somehow damaging justice through bad acts.

An example I have used in the past is a legal services agreement that prohibits the client from seeking the advice of other attorneys. I cannot find, in the Model Rules or in any clause of Maryland’s dialect of them, a black-letter rule prohibiting such a clause. Other clauses are prohibited (e.g. contingent fees in criminal cases) or mandatory (explicit statement of how costs are to be allocated against attorney or client in unsuccessful contingent fee cases) but I cannot find such a rule. Yet every attorney should step back and be aghast at hearing that an attorney attempted, under pain of breach of contract, to keep a client from getting a second opinion. Why? Well, it’s not the act of a fiduciary, and it smells vaguely like a contract of adhesion. It’s also brick stupid for the attorney; if the client takes the case to another attorney, and that attorney spots a fixable mistake or oversight, the first attorney can be spared a malpractice claim. An attorney should simply realize – not because some committee thought ahead to prohibit it, but by exercising prudence – that the safety valve of a permissible second opinion is more important than keeping a profitable client locked in a services agreement.

You shouldn’t have to be told that you shouldn’t steal other lawyers’ website content and incorporate that into your own website, especially without attribution. A “rules lawyer” can argue that this is an 8.4(b) (criminal act, i.e. copyright infringement, reflecting poorly on fitness) or 8.4(c) (dishonesty), but this isn’t the point. You DEFINITELY shouldn’t do so regarding specific promises to be made to a client regarding the quality of your representation, and you shouldn’t plead ignorance that “the law student I hired back when stuck it there, it ain’t my fault” (my paraphrase.) Go read Scott Greenfield’s commentary; I often regard him as overly severe on young fools but on this one young attorney in Texas he actually seems restrained and temperate (another cardinal virtue.)  I hope that Carl Ceder, Esquire, sues me too if he decides to “sue the internet”, to use a phrase invented by Mr. Greenfield in another context.

I have a Client Bill of Rights on this site. I wrote it, along with every other non-attributed keystroke on this site (including every typo, which I blame on me, Godfrey.) I was inspired to write this Client Bill of Rights through the general example of Fred “Chip” Coover, Esquire of Columbia, Maryland, for whom I worked briefly about a decade ago. His Client Bill of Rights doesn’t read like mine; his style is different, his focus is different and he doesn’t do what I do and vice versa, for the most part. I do recommend Chip strongly for land use litigation and real estate transactional work in Howard County, Maryland and neighboring counties. Interestingly, my internet searches led me to conclude that Chip’s Client Bill of Rights and his firm’s declaration of philosophy have at least one set of very ardent, faithful admirers in South Carolina. Another firm in Denver admires Chip’s work too.  Draw your own logical conclusions.

As for my Bill of Rights, around the time when I published it, I contacted Chip informally to let him know that his prior work inspired my Bill of Rights, and he expressed no objection at the time (or since.)  I didn’t have a technical black-letter ethical duty to do so, but it’s what a decent human being and professional simply does.


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