Commentary: Questions of personal morality

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Lawyers are ethically bound to abide by the law and by the 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 and prevented it from collecting possibly millions in attorney fees.

But the commentary on Rule 8.4 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.

In a relatively short amount of time society as a whole seems to have become accustomed to conduct that seems to be taken for granted for everyone but lawyers. Consider these examples, taken from items discussed by legal bloggers and others on the Internet:

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

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 he had more $400,000 in student loans accumulated over 26 years of study.

The applicant admits to not paying down the loans — but of course needs a job to do so.

A law firm advised paid bloggers 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 ethical 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 a new account with scrupulously “clean” records, while allowing depletion of the old account until only the few questionable items remain, hoping and praying that no one makes inquiry in the future? There is no intent to defraud, but harm is done.

In today’s society, no one, including lawyers, is exempt from scrutiny and questioning about their 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.

Ed Poll J.D., M.B.A., CMC is the principal of LawBiz® Management, a national law firm practice management consultancy based in Venice, California. For more information, visit his Web site www.LawBiz.com or email him at [email protected].