Overview of Ethics v. Morality
The Distinctive of Ethics
“Ethics is closer to wisdom than to reason, closer to understanding what is good than to correctly adjudicating particular situations.”[2]
A. Overview
The nature of morality and ethics makes claim to our lives and how we exist. As humans, we have basic duties and obligations.[3] That is, there are things we must do and things we must not do. Ethics fall into this category. Legal ethics are certain rules promulgated to enforce that which lawyers can and cannot do.
We experience life in a world of good and evil and understand actions in terms of right and wrong. In part, ethics often is a subset of morality and vice versa. The very structure of human existence dictates that we must make choices. Legal ethics provide instruction and direction in answering fundamental questions, which ask how we should live our lives, practice law, and how can we make right choices. [4]
C. Definitions
1. Ethics Generally
In common American language, we often confuse the words ethical and moral and use them interchangeably.
The word “ethics” comes from the Greek ethos, which means character. The word “morality” comes from the Latin word moralis, meaning customs or manners. Ethics generally pertains to the individual character of a person or persons, whereas morality seems to point to the relationships between humans.[5]
When we speak of people as being moral or ethical, we usually mean that they are “good people,” and when we speak of them as being immoral or unethical, we mean they are “bad people.” For simplicity, in the discussion herein, morality usually appears as a distinction made by a culture or in a community. Morality is also rooted in religious or theological origins in most instances. Ethics, however, tends to be used in conjunction with business, medicine, or law. Ethics in this subset serves as a code of conduct for working in these fields.
2. Legal Ethics
Legal ethics generally are a subset of ethics that sets for the standard and conduct expected of those in the legal profession. As defined specifically,
The professional obligations of a lawyer, including those codified by rule. Legal ethics is a body of rules and standards of conduct that the legal culture imposes on its members. Ethical standards arise, as does their authority over the attorney, from the oath of the attorney, the inherent power of the courts to discipline lawyers before the bench, the culture of the profession, and the standards of liability for fiduciaries and professionals. Moreover, each state has codified legal ethics into canons or rules, although these are not the extent of the ethics required of an attorney. Even so, under the rules, legal ethics usually require attorneys to avoid conflicts of interest; to practice with diligence; to avoid frivolous, false, fraudulent, or harassing behavior; to zealously represent their clients; and generally, to avoid the appearance of impropriety. A violation of legal ethics subjects the professional to sanctions from the professional bar and from the courts. The violation of a rule or canon of legal ethics does not, by itself, give rise to tort liability. Such a violation is, however, evidence of a breach of duty in an action for fiduciary liability or professional negligence.[6]
3. Integrity
The discussion for this presentation deals with integrity, which is defined by Merriam-Webster (last visited May 18, 2020) as:
- firm adherence to a code of especially moral or artistic values: INCORRUPTABILITY
- an unimpaired condition: SOUNDNESS
- the quality or state of being complete or undivided: COMPLETENESS.
In focusing on integrity and the definitions above the intention of these materials is to interweave integrity with ethics and reflect upon where lawyers have breakdowns, some serious enough for disciplinary actions, malpractice, adverse rulings, and so on. Without going into all of the weeds with respect to the philosophical construct getting to integrity and ethics, our discussion today relates to a consequentialist viewpoint (actions connected to consequences) versus a non-consequentialist viewpoint (actions not necessarily connected to consequences and other outside sources may result in the consequence). To be clear, we are all responsible for our actions and are always “cause in the matter” in creating the outcomes we want for ourselves, our clients, our careers, our families, and so on. I challenge each of you to take that on in your roles as attorneys.
Examples of Integrity Breakdowns with Ethical Consequences
In examining many of the bar opinions around the country where attorneys have been censured, disciplined, suspended, or disbarred, I contend that the breakdown is, first, with integrity, then with the subsequent consequences of that breakdown, which then coincide with an ethical rule. A snapshot of ethics issues and traps encountered by attorneys is encapsulated by the ABA on its website (last visited May 18, 2020). I also attach in the endnotes practice guidelines of the North Dakota Supreme Court, which effectively are integrity standards with a mike-drop.[7] Recently, I had the privilege of arguing a case before the North Dakota Supreme Court and these pointers are now in a frame in my office as a reminder of what integrity looks like.
Have you ever lied to your client/employer as to why you need an extension of time to file a complaint, when the real reason was your extension your vacation? Have you ever failed to place in your calendar court hearings, pleadings deadlines, or other events? Did you ever take on a matter that was beyond your skill set? Have you ever not returned a work-related phone call, email, or text because you just did not want to deal with it? Have you ever gone to court, even a status hearing, without being prepared?
When I was in the state of Washington a few years ago, I took a tour of the Boeing plant. The tour guide kept reminding us of the stringent criteria to maintain the complete integrity of the aircraft. In fact, one can look to Boeing’s Ethics and Compliance online. https://www.boeing.com/principles/ethics-and-compliance.page.
Every bolt, part, piece, and element of the plane had to be in complete integrity; otherwise it will fall from the sky. In fact, all aircraft disasters are a breakdown in some area of integrity.
Interestingly enough, though, because of certain internal policies, in-fighting, and cost-cutting measures caused a breakdown in Boeing’s integrity in producing the 737 MAX. See, e.g., (one of the more disturbing emails was from an employee who stated: “[t]his airplane is designed by clowns, who in turn are supervised by monkeys…”). A program called “Partnering for Success” caused suppliers to cut corners to stay competitive, which, in part led to many of the issues related to the two planes that crashed.
In our lives we all miss appointments, forget about lunches, dinners, or events (anniversaries and birthdays, for example). It is common. While it is common, it is also common that while we do not see the impact of our breakdown in integrity, others do and that translates in how they see us in the world. As attorneys, much of our work is in situations involving more serious breakdowns in integrity — criminal actions, breaches of promises (contracts, fiduciary, and so on), fraud, deception, failure to follow through, and innumerable other breakdowns. Integrity is in our lives (both professionally and personal) as attorneys are, in fact, as critical as the integrity Boeing puts into aircraft. We are given the privilege to represent our constituencies and clients and we are responsible for the lives of those we are representing.
Attorney Inaction
One of the more frequent grounds for disciplinary actions against attorneys is for failure to act in a case. This falls under North Dakota Rule of Professional Conduct 1.1, which provides:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The Supreme Court of North Dakota, in Ward v. Ward, 2016 ND 113, held that, while the facts in the case did not demonstrate the attorney had a lack of “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”, the attorney failed to perform services for a client because he did not advise the client of how to respond to inquiries from the Chapter 7 trustee in the client’s bankruptcy case and he did not share with the trustee materials his clients provided to him. Attorneys are charged with the duty of acting timely in cases, including filing appropriate pleadings within the statute of limitations period. Disciplinary Bd. of the Supreme Court v. Ward (In re Ward), 2016 N.D. 115. Often attorney inaction results in a cascade of ethics violations. See, e.g. North Dakota Rules of Professional Conduct Rule 1.3 (failure to represent client diligently), 1.4 (failing to communicate with client and making false statement to a client about case status), 3.2 (failure to expedite/prosecute litigation), 4.1 and 4.2 (false statement), 8.4 (Misconduct).
“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.” Haile Selassie.
Attorney inaction includes, but is not limited to: failing to return phone calls, emails, and other communications; failing to calendar correctly; failing to listen to a client; not being prepared for court; not questioning a supervising attorney when appropriate; not filing a bar complaint when appropriate and necessary; not conducting discovery in a case when appropriate and necessary; and not meeting your client before trial. Inaction is often the “cause” for the effect of losing a case, being sanctioned by a court, client dissatisfaction, and, in the more serious cases, attorney discipline, and criminal conviction.
Competence
Collaboration and Inquiry: Many new attorneys are afraid of asking questions, and quite honestly, a lot of supervising attorneys are less than friendly when it comes to mentoring younger attorneys. The lack of supervision is, in and of itself, a failure in integrity. There is a myth in American culture of the “Self-Made Person.” We have been indoctrinated in a culture that sneers at people who do not know something. I often receive this treatment from our IT staff and feel humiliated when I have to reboot as the solution… I digress.
“The supreme quality for leadership is unquestionably integrity. Without it, no real success is possible, no matter whether it is on a section gang, a football field, in an army or an office.” Dwight D. Eisenhower.
Integrity is, by its very definition “being whole and complete.” Individually, we are not, together we can be. Integrity consists of reaching out to others with experience or knowledge. This may be in the form of an expert witness, a colleague, a legal specialist, or whatever else may be required. One of the first things I do during an intake with a client is ascertain what witnesses will be needed, what experts may we need to consult, and who else in my firm has handled this sort of case if it is not my area of focus.
“When I was a kid, there was no collaboration; it’s you with a camera bossing your friends around. But as an adult, filmmaking is all about appreciating the talents of the people you surround yourself with and knowing you could never have made any of these films by yourself.” Steven Spielberg.
Sometimes the natural instinct of an attorney is to hunker down and just work on the solution on his or her own. I tell folks in my firm if they are unwilling to collaborate and be open to inquiry when they have a question; they are not going to last long working with me. We all have areas of competence, that is, we know that we know. We also have areas of incompetence (sorry), that is, what we know we do not know. But there is a vast area of knowledge we do not even know we do not know. Working with others brings about awareness to our blind spots.
Communication
Although I mention this above, it is worth repeating: COMMUNICATION IS CRITICAL TO INTEGRITY! Communication is essential to many constituencies: the client, the court, and the lawyer’s office-mates (staff and attorneys). Failure to communicate is a breakdown in integrity that it can result not only in disciplinary matters related to licensure, but it can have the consequence of malpractice liability.
“The art of communication is the language of leadership.” James Humes.
To be effective in communication, you must return communications timely (my outside limit is 24 hours, for example). Stated another way, how do you feel when your calls are ignored by your attorney, doctor, or cable company? By way of example, there may be a great settlement on the voicemail in a case, or, worse yet, the Judge presiding over the scheduling hearing where you are supposed to be advising the Court as to the status of the case and anticipated discovery deadlines.
“The single biggest problem in communication is the illusion that it has taken place.” George Bernard Shaw.
You need to provide status to those in your office (firm or governmental agency), status to the client, and to the court as necessary. Many attorneys get so absorbed in work; they do not tell those around them what is going on in a case. Why is this critical? What if the attorney has not status record and, sadly, the attorney dies? What happens to the file? Who can pick up where the attorney left off?
You cannot lie. This should be obvious, but how many times have you given an excuse why you were late. This is … a lie. In prior employment we had an attorney in the office that was always late – so much so that we gave him a nickname. Did we ever trust him with something urgent – never? Believe it or not, people are watching you.
“A single lie destroys a whole reputation of integrity.” Baltasar Gracian.
Do not blame others. Usually, … this is a lie. When I worked with a Judge in Denver, we used to have a “cattle call” docket and I do not know if it has to do with the roads in Colorado, but almost every docket had an attorney or a party phone the court (before or after) or file a pleading expressing how they had a flat tire on the way to court. It was an epidemic. The breakdown was not the flat tire. It was the failure to appear in court. I have seen in my career both in the office and in court, attorneys blaming staff for missed deadlines and so on. As the attorney, you are the one having the breakdown in integrity – and that is how the court is going to see it.
Integrity Leads to Great Ethics
Most jurisdictions, including North Dakota, require a certain number of ethics hours. I ask you, when was the last time you read court rules and ethics rules and guidelines. It is an obligation to know the ethics rules and court rules. While these may seem constraining (and pretty boring), these actually free you up to stay the course in litigation doing what we are all best at, being a great lawyer.
Per Rule 1.1, “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” At core, to navigate the complexities of litigation, evidentiary matters, and actually trying a case, it all comes back to integrity. Breakdowns in integrity, quite frankly, always appear in cases.
Attorneys must be proactive in understanding where breakdowns may occur, prepare for any breakdowns with care, communicate with the client about where these breakdowns may occur, and, if they occur, communicate with candor with the client and parties impacted, including, if necessary, opposing counsel and the court. Integrity includes the humility to acknowledge what you do not know and accepting that there are things you do not know that you do not know.
- Materials prepared for a continuing legal education course to the prosecutors in the State of North Dakota.
- Francisco J. Varela, Ethical Know-How: Action, Wisdom and Cognition (Stanford University Press 1991), at 3.
- Jacques P. Thiroux and Keith W. Krasemann, Ethics Theory and Practice (Prentice Hall 10th Ed. 2009), at 1. This book is an excellent resource and an important part of any business professional’s or lawyer’s resource library.
- Id., at 1.
- Id.
- Sheppard, Steve, Bouvier, Jon. The Wolters Kluwer Bouvier Law Dictionary Desk Edition (Legal Ethics).
- Below is an excerpt from the State of North Dakota Courts Appellate Practice Tips. My personal favorites are in bold. All of the Tips point to integrity as we discuss it in this paper.
- “To write clearly and to speak clearly, you first must think clearly.” —Elmer Lower, former president of ABC News.
- Clarity, not complexity, is the key to success.
- If the Court can’t understand your argument, you lose.
- Figure out what is important and then figure out how to explain it in plain English.
… - Read the Rules of Appellate Procedure.
… - When your client wants to appeal as a matter of principle, tell the client how much principal it will take.
- “The filing of an appeal should never be a conditioned reflex. About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” —Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir.1987).
- Remember, you probably know much more about the case than the Court. That can be dangerous if you don’t step back and provide context for your argument.
- Be respectful, but also be self-respectful.
- Seek to persuade, not to show how much you know.
- You serve your client by maintaining your own credibility.
- Omitting key facts destroys your credibility when the other side points them out.
- Acknowledge obvious weaknesses in your case and explain why you should win anyway.
- Tell the Court clearly why you think your position is correct.
… - Be a resource to the Court to help it understand the law and the facts.
- Drop the hyperbole!!!
- Cheap shots at the other side will only hurt your case.
- “Civility is not too much to expect in a civilized society’s alternative to brute force, stealth, and deception.” See Jacobson v. Garaas, 2002 ND 181, ¶ 37, 652 N.W.2d 918.
- Not every lawyer excess is justified by the mantra of zealous representation. See Jacobson v. Garaas, 2002 ND 181, ¶ 23, 652 N.W.2d 918.
- A lawyer is not always protected by following the client’s specific directions. See Jacobson v. Garaas, 2002 ND 181, ¶ 23, 652 N.W.2d 918.
- Summary judgment can’t be reversed on appeal based on what you wish you had presented in the trial court, only on what was presented as competent evidence in the trial court.
- “Judges are not ferrets.” Linrud v. Linrud, 552 N.W.2d 342 (N.D. 1996).
- Justices don’t like to have to look for the pony.
- When you discover you are riding a dead horse, the best strategy is to dismount.
… - Comply with deadlines set by the Supreme Court Clerk’s Office.
- Do not ignore correspondence from the Supreme Court Clerk’s Office requesting case information or directing specific action.
… - Before writing your brief, master the record and the law.
- Oral argument is no substitute for a good brief.
- Know where your brief is going before you start writing it.
- Raise only important issues. Trivial issues detract from important ones.
… - Don’t make your brief a mystery. Tell the reader what the case is about right up front. The Statement of the Case should clearly and concisely tell what the case is about in the opening sentence.
… - Avoid acronyms.
- Generally, shortened names are better than acronyms.
… - Present the facts in an accurate, fair, persuasive manner.
- If you disagree with the facts, point them out up front (not that you will point it out in the argument).
- Don’t ignore unfavorable facts. Refer to them in a way that does the least harm.
… - The word “clearly” is no substitute for authority or logic.
- Arguing in favor of the position taken in a recent dissent is almost never successful
… - Don’t talk in jargon, whether legal or technical.
- Define medical terms in your brief the first time you use them.
- Never use many words when a few will do. A longer brief is not necessarily a better brief.
- Cite only cases you have actually read.
- Long quotations usually are not effective.
- Make sure cases and statutes are cited correctly. Make sure cases cited are still good law.
- Read the cases cited by your opponent.
- Avoid “legalese.” Don’t use “pursuant to,” “hereinafter,” “herein.” Never use “said” as an adjective or an article. Clear language—not pompous or ponderous language—is most effective.
- The possessive “its” has no apostrophe, just as there is no apostrophe in “his,” “hers,” “theirs,” “yours,” and “ours.” “It’s,” with the apostrophe, means “it is.” “It’s” can be used only when “it is” could be substituted.
- “Good legal writing should not differ, without good reason, from ordinary well-written English.”—Richard Wydick, Plain English for Lawyers.
- Pretentious words can’t hide the lack of substance.
- Avoid “Latinisms.”
- If a one-syllable word means the same thing, use the one-syllable word.
- Delete adjectives and adverbs.
… - Omit needless words.
- Long sentences are confusing.
- Use short sentences.
- Limit yourself to one idea per sentence.
- Avoid repetitious arguments.
- “Always use your computer’s spell check, and never trust it.” —Steve Wilbers, Minneapolis Star Tribune
- “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
- Although there are specific rules about the format of the brief, ease of reading is always the goal…
- Briefs should have a binding allowing them to lie open without having to be held down. Justices often have more documents open than they have hands.
… - Proofread. Then proofread again.
… - Only material actually in the trial court record may be included in the appendix. See N.D.R.App.P 30.
… - A defective appendix hurts credibility.
… - Prepare, prepare, prepare. Review the record and your cases and your opponent’s cases before oral argument.
- Check this website for opinions issued since you filed your brief. If you didn’t handle the case in the trial court, you are still expected to be familiar with the record.
- Be prepared to discuss each case you cite and each case your opponent cites.
- Listen carefully to the question and understand it before answering.
- Answer the question when it is asked.
- Don’t evade.
- Don’t answer a question with a question.
- If you don’t know the answer to a question, say so.
… - If a Justice throws you a life preserver, don’t bat it away.
… - Oral argument is not the time to present a list of cases that could have and should have been in your brief.
- Don’t talk faster than the Justices can listen.
- Speak up, but don’t shout.
- When your time is up, your time is up. Stop.
… - Petitions for Rehearing are rarely granted.
- Don’t file a petition for rehearing if the real audience is the client.
- Petition for rehearing only when the appellate court has made a glaring error.
- A Petition for Rehearing will not succeed by simply parroting the dissent.
- A Petition for Rehearing merely repeating the argument previously made is pointless. See N.D.R.App.P. 40.
https://www.ndcourts.gov/supreme-court/filing/appellate-practice-tips (last visited May 18, 2020) (emphasis in bold added).