Where to draw the ethical line?

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Published on 1/25/10

Lawyers are ethically bound to abide by the law and by the American Bar Association's Model Rules of Professional Conduct, which prohibit any “criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects” as well as “conduct involving dishonesty, fraud, deceit or misrepresentation.”

A good recent example of such conduct emerged in news stories about a St. Louis law firm that sued one of its former associates alleging that the attorney secretly signed up and hid clients from the firm, preventing it from collecting potential millions in fees.

But the commentary on Rule 8.4 about unethical conduct admits that there are “matters of personal morality … that have no specific connection to fitness for the practice of law.” And here's where a host of gray areas can be found.

Consider these examples, taken from items discussed by bloggers and other Internet users:

  • Florida's Board of Bar Examiners, through its Character and Fitness Commission, says it will examine applicants' Facebook and MySpace websites under certain circumstances, such as where previously there was substance abuse and the like. Presumably, the bar is looking for evidence of remorse and rehabilitation over a flippant reference about drug or alcohol use on a personal website.

  • In New York state, judges overruled the state bar's entrance committee and held that an applicant who passed the bar exam lacked the requisite character and fitness to be a lawyer and would not be granted a license to practice because of his more than $400,000 in student loans accumulated over 26 years of study. The applicant admits to not paying down the loans — but, of course, he needs a job to do so.

  • A law firm advised paid bloggers at a client to creatively spread the word in their blog posts that a particular birth control product was causing harm to young women — a perspective that is not only controversial but raises issues about whether the firm stands to benefit from product liability litigation.

Where is the ethics line drawn? What about the lawyer whose trust fund record—keeping is not clear and accurate, fears there may be errors, and decides to open and operate through a new account with scrupulously “clean” records while allowing depletion of the old account until only the few questionable items remain, hoping that no one makes an inquiry in the future? There is no intent to defraud, but harm is done.

In today's society, nobody, including lawyers, is exempt from scrutiny and questioning about his or her conduct. There's only one sure way to proceed: If concerns, even hypothetical ones, arise about professional conduct, secure without delay the opinion of counsel specializing in the defense of lawyers.

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