Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

The Party Line

At parties and social gatherings where I know few people, generally speaking I am reluctant to tell people I am an attorney.  I’m not ashamed of my profession – far from it.  But I am loath to hear another round of “Oh, a lawyer, huh?  Hey – what do you call 1,000 lawyers skydiving out of an airplane? Skeet! Ha ha ha!” 

Jokes like these are a dime a dozen.  The distaste for lawyers is nearly a societal instinct.  This reflexive thinking begs the question, though – why? After all, attorneys have codified rules of ethics and professional conduct that surely should function to stave off the belief that lawyers are dishonest and corrupt.

Rule 1-100(A) of the California Rules of Professional Conduct states that the purpose and function of the Rules is to regulate professional conduct of members of the State Bar through discipline.  The Rules are binding on members, and a willful breach of the rules may result in discipline.  Ibid.  California Legal Ethics are governed by the State Bar Act, which is codified in Business and Professions Code sections 6000 et seq.  Members are bound not only by the California Rules of Professional Conduct but also the opinions of California Courts.  Ibid.  Although not binding, opinions of ethics committees in California – such as the State Bar of California Committee on Professional Responsibility and Conduct [COPRAC] or our own San Diego County Bar Association Legal Ethics Committee – can provide guidance to members with questions on proper professional conduct.  Ibid.  With all of these proverbial arrows in the State Bar’s quivers – and, conversely, all of the resources available to attorneys – it seems that attorney misconduct should be viewed as aberrant; the exception, not the norm.

The Rules themselves may contribute to the disconnect here. When an attorney thinks of California Legal Ethics, he or she thinks of the codified rules and regulations, as set out above, that govern professional conduct.  And yet, the more general term ethics refers to moral principles that govern a person’s behavior or the conducting of an activity.  This is not something that can be taught, or codified.

Therein lies the rub, in my opinion.  Abiding by the Rules of Professional Conduct and the Business and Professions Code is not the same as acting in line with a moralistic principle.  Attorneys are required to be professional; to properly handle, safeguard, and distribute clients’ money; to not engage in any act involving moral turpitude, dishonesty, or corruption.  But the Rules and the Code also allow for – nay, reinforce – our ability to zealously advocate for our clients.  And sometimes this is done in a way that a “moralistic” individual would not understand.  This is not to say in a way that violates the Rules or the Code, but rather in a way that might not give everyone the best opinion of our behaviors.

Once, when I was a defense attorney, I got into a discovery dispute with Plaintiff’s counsel over a discovery request that referred to “the collision” in a car accident case.  This seems like a simple and straightforward term, right?  The problem was that the Plaintiff’s attorney in that particular circumstance had been inattentive to the facts of the case. My client’s vehicle had struck the Plaintiff’s vehicle after being side-swiped by a tractor-trailer that had run a red light and smashed into my client.  So, to which “collision” was the discovery request referring?  The collision involving my client and the tractor-trailer?  Or the collision involving my client and the Plaintiff?  Or both? When I brought these issues to the attention of Plaintiff’s counsel in an attempt to persuade him to revise his requests, he took the position that my client was being deliberately evasive and I was being obstreperous. 

As an attorney and advocate for my client, however, I did not want any discovery responses to be misconstrued as accepting fault (and therefore liability) for the collision.  The average non-attorney does not mince words like this, and would very likely say that it was obvious that the Plaintiff’s attorney meant the car accident as a whole.  My job, though, was to protect my client and parse the accident into two distinct events.  Ultimately, in the context of a discovery motion, the Court agreed that my client’s responses were complete.

To the average person, though, was I being slippery? Mincing words unnecessarily?  Looking for a shady loophole?  Acting “unethically,” although adhering to all of the Rules and the Code?  Worthy of that “skeet” joke?  Although I think not, I am going to stick with my usual line at parties: “Me?  I work at an office downtown.  How about you?”

—​ Jennifer Gilman is an attorney with Frantz Law Group APLC.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**