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Cade seeks readers’ responses to ethical dilemmas

By: dmc-admin//September 10, 2007//

Cade seeks readers’ responses to ethical dilemmas

By: dmc-admin//September 10, 2007//

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Cade
Nate Cade

With the Labor Day holidays behind us (and with my editor bugging me about a column), I’ve been thinking about what scandalous things I should write about for this month, and, on Monday it hit me like a ton of bricks. I think I’ll do a survey, actually two surveys. But first, some background.

There is an ethicist in New York named Randy Cohen who is a columnist for The New York Times. Cohen recently received an e-mail for which his ethical advice was sought. This e-mail reads:

“I am a lawyer. During a first date with another lawyer, we had sex, and I wore a condom. Days later, when I came down with a bad fever and couldn’t determine the cause, she revealed that she had genital herpes. A judgeship will soon open up in her county, and she’s a near lock for it. But if I report her lapse of sexual ethics, I doubt that the selection committee will pick her. Should I?”

In response, Cohen advised this lawyer to “keep his mouth shut.” And he also indicated that:

“She should have told you that she had herpes and let you decide whether you wish to accept that risk, however, the selection committee is not choosing a role model for the kids or someone to ride the express elevator to heaven; it seeks a person who will excel at a particular job. I do not believe that this sort of sexual misconduct correlates with an inability to be a good judge.”

The Wall Street Journal’s legal blog picked this little exchange up on Aug. 27 and did an informal survey of its readers as to what this lawyer should or should not do with this scandalous information. I won’t tell you how the votes are coming out, but I am interested in your opinion.

However, I also want to give you some additional legal arguments for you to noodle over before giving me your thoughts. Under Wisconsin’s Rules of Professional Responsibility, Supreme Court Rule 20:8.4 (Misconduct): “It is professional misconduct for a lawyer to see, engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The comments from the old Rules of Professional Responsibility (before the Ethics 2000 change) states:

“Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, distinction was drawn in terms of offenses involving ‘moral turpitude.’ That concept can be construed to include offenses concerning some matters of personal morality such as adultery and comparable offenses that have on specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, the lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”

So, the specific question that I would like for you gentle readers (Mom, my wife and this guy down the street who tells me he reads the column, but who is just playing me) to answer is this: If this fact scenario had occurred in Wisconsin as opposed to New York, what should this lawyer do with regard to reporting this soon to be judicial officer?

The second survey that I’d like to take of my three readers is this. Several months ago, an article circulated about a medical malpractice trial (from what I recall) in Boston. It turns out the doctor who was on trial also was an Internet blogger, who happened to blog about his trial. When it came time for this doctor to take the stand, one of the first questions plaintiff’s counsel asked him was whether, in fact, he was this particular blogger. (Interestingly, and as an aside, the blogger criticized the judge, criticized the jury, and even criticized opposing counsel). He admitted he was the blogger, and when the jury received the case, it quickly came back and concluded that he was guilty of malpractice.

So my survey question to the readers is: Assuming the doctor’s lawyer had personal knowledge that his client was in fact blogging about the malpractice trial while it was going on, do you believe the lawyer committed an ethical breach for allowing his client to blog? And note, I am not asking whether he was stupid to allow his client to do this, but whether you believe that allowing his client to exercise free speech in and of itself is a violation of the ethics rules.

Please send your responses to me at [email protected]. I will keep all responses anonymous, even those that accuse me of being an idiot (true), but I am interested in hearing your thoughts. And my early apologies for the salacious first survey, but in my defense, please recall that I did not write at all about Anna Nicole Smith, Lindsay Lohan or Britney Spears at all this summer.

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