Lawyer Ethics: An Ethics Post Revisited

The last two weeks have been about as hectic as any I have had in recent months. A good time to revisit the archives. Check out this post on Lawyer Ethics. The post started a buzz on several different blogs the week it was written dealing with lawyers and ethics.

An apt summary of the post is that sometimes the non-lawyer and lawyer worlds clash as to what constitutes the right ethical decision. The primary case cited in the post involves an attorney faced with whether to tell the grieving parents of two murdered children where the children's bodies were buried. The attorney knew because his client murdered the children and told the attorney where the bodies were located.

After reading the above facts, what would you do if you were the attorney? The answer likely depends on whether you have attended law school and, if so, how well you did in your Ethics 101 class.

Lawyer Lawyer, Pants On Fire

Have you heard the one about how you can tell if an attorney is lying? His lips are moving. Or how about the young lawyer wanting to impress the first client coming into his office, picked up the phone and said, "I'm sorry, but I have a tremendous case load and won't be able to look into this for at least a month." He then hung up, turned to the young man in his office and asked, "What can I do for you, sir?" "Nothing," replied the young man. "I'm just here to hook up your phone." These are just two of millions of lawyer jokes dealing with one issue: Lawyer ethics.

Before I went to law school I thought of law in the United States as a concrete, reliable source of rules derived from the Constitution and based on principles of right and wrong. To get at the law, all you had to do was blow back the atmospheric heavens and there it sat in all of its glory. Law school changed all of that; especially when it came to ethics.

Real Life Ethics Scenario
One real-life legal situation illustrates how the ethics I held prior to law school were at stark odds with those promoted by the American Bar Association. The case involved a defense attorney who represented a man accused (and eventually convicted) of the first degree murder of two five year old girls. The girls' bodies had not been found. At some point before the trial the accused told his attorney that he had committed the crime and described in detail the location of the bodies.

At trial, the defense attorney represented his client as best he could. He questioned the methods used by the investigating officers, provided alternative scenarios of what could have happened to the girls, pointed out that no bodies had been found and otherwise represented his client with zeal. He was required to do so under the applicable code of ethics. He watched the parents of the girls sit in the courtroom with tears in their eyes as the prosecution painted the picture of two brutal homicides.

Despite his best efforts his client was convicted of the crime. The parents were somewhat relieved by the verdict and requested that the murderer tell them where the bodies were buried. The parents sought closure. The murderer refused. The parents then turned to the defense attorney and asked whether he knew where the bodies were buried. It was apparent from the look on his face that he knew but the code of ethics required him to remain silent. You see, the code of ethics values the attorney/client relationship over the peace of mind and closure sought by the parents.

The defense attorney's conscience nagged him during the trial and continued to do so through several lengthy appeals. After the conclusion of the last appeal, the attorney's conscience got the best of him. Through an anonymous letter, he revealed to the parents the location of the bodies of their daughters. The murder weapon (a knife I believe) was found with the girls which served to vindicate the verdict of guilty. The attorney's conscience was free, but his legal troubles had just begun.

It was discovered that the anonymous letter had come from the attorney. He was brought before his state bar accused of violating the attorney/client privilege and eventually disbarred. When confronted with whether he sent the anonymous letter the attorney admitted he had. He did not lie about his involvement. My ethics before law school say that he did the right thing. The correct answer on the ethics exam is that he failed miserably. No wonder there are so many jokes about the ethics of lawyers.

Golf, Lightning and a Legal Duty of Care

I love to golf even though I'm not very good. My brother-in-law (a very good amateur golfer) got me started about three years ago. One thing I've learned about golf is one superb shot can make up for two really bad ones. I just haven't figured out how to hit a superb shot yet. I've also learned that whether you have had a good or bad day golfing very often depends on your perspective. In that regard, golf is a lot like practicing law.

A Lesson In Perspective
The other day I had a hearing before a judge in Miami on a Motion for Contempt. I represented a creditor who had obtained a judgment against a debtor for failing to pay for a boat he had purchased. I will call the debtor "Mr. Jones" to protect his identity.

Mr. Jones refused to provide my client information related to his finances even though the Judge had ordered him to do so. Check out my article on Collection Law and Post Judgment Discovery for more information on why he had to provide the information.

Mr. Jones was informed by the Judge that he was in Contempt of Court and would have to serve 5 days in jail. He began begging and pleading with the Judge not to send him to jail. He then turned to me and said "What will it take to pay this judgment off?" I gave him a figure, he wrote out a check and deposited it with the Court. The Court verified that the funds were good and recalled the Order of Contempt.

In a matter of seconds Mr. Jones' perspective on paying off the judgment changed. When he viewed paying the judgment as wasting hard earned money on a vehicle that he no longer possessed (it was repossessed and sold at auction) he resented the payment. When he viewed the payment as a way to keep himself out of jail he seemed almost happy about being able to write the check.

Another Lesson In Perspective
Similar to Mr. Jones, one Golf and Country Club in Kansas has recently experienced a change in perspective; at least when it comes to protecting its golfers from dangerous weather conditions. The facts of the case are these:

The weather forecast called for inclement weather. Two golfers decided to try to get in a round of golf before the storm hit and the weather became bad. At some point in their round the manager of the country club sounded a loud horn indicating the storm was approaching. The golfers finished the hole they were on and began walking back to the clubhouse. As the golfers walked back to the clubhouse a flash of lightning struck the two. One of the golfers was knocked unconscious but later recovered and the other suffered permanent lifelong injuries.

That is the "Golf" and "Lightning" part of the story.

A Legal Duty of Care
The next part of the story is somewhat technical because of the legalese involved. As it turns out, the manager of the country club had sounded the alarm because of a Club policy. It was the Club's policy that an alarm system be set up and used to warn its members of approaching storms. We know the manager sounded the alarm. What we don't know is whether the manager sounded the alarm in time to sufficiently warn the two golfers.

Now to the legalese. The Kansas Supreme Court ruled that the Club was not required to have a policy to protect its members from dangerous storms. Further, without a policy the Club would have been free from the burden of installing the alarm system equipment and using it correctly. However, since the Club did have a policy, the policy created a legal obligation (or duty of care) on the Club to ensure the alarm system equipment was set up properly and that it was used properly. As a result of trying to protect its golfers, the Club had opened itself up to lawsuits for failing to follow through with the protection.

The Club's perspective prior to the suit was that it would be nice to watch out for its golfers and warn them about inclement weather. That perspective has almost certainly changed. Lawsuits often have a way of changing people's perspectives.