Attorneys and the Rule of Law: Navigating the Gaps between Ethics and Moral Conviction
By Joel A. Osman

Joel A. Osman, senior counsel at Parker Mills, concentrates his practice on litigation and trials. He is a member and former chair of the Los Angeles County Bar Association Professional Responsibility and Ethics Committee and a member of the State Bar Committee on Professional Responsibility and Conduct. The opinions expressed in this article are the author's own and are not expressed on behalf of any other person or organization.

Ours should be "a government of laws and not of men." —John Quincy Adams[1]

Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people. —Archibald Cox [2]

The United States is a nation of laws: badly written and randomly enforced. —Frank Zappa[3]

Regardless of the point of view of the person uttering these words, it is clear that the notion that our country's greatness derives, at least in part, from the fact that we are a nation in which the rule of law prevails. As a profession, attorneys are by definition, dedicated to and indeed the servants of the rule of law. Absent the rule of law there would be little or no need for our profession. Significant problems for lawyers arise whenever there is a perceived inconsistency in the laws by which we are ruled or, perhaps even worse, when there is an apparent dissonance between the dictates of law and the dictates of ethics or moral conviction.

To begin with, let's deal with certain basic definitions: In practical usage "moral conviction" usually applies to principles of right and wrong in personal behavior. Ethics, and more particularly legal ethics (as this is after all an article for lawyers), usually applies to a set of codified professional and/or business practices. In California, our legal ethics derive from three separate sources: First, the Rules of Professional Conduct promulgated by the State Bar and adopted by the Supreme Court. Second, the statutory laws of the state adopted by the legislature as part of the State Bar Act which is found at Business and Professions Code Section 6000 et seq. Last, but not least, appellate case law which addresses the issues.                 Notwithstanding this plethora of sources, the ethical rules by which our profession must operate are clearly defined and easily understood whereas questions of morality are the result of value judgments made at an individual level and therefore more vague.

When attorneys are confronted with laws which are inherently inconsistent there is a tendency to turn to legal ethics or morality for guidance as to how we as a profession should deal with these inconsistencies. In point of fact, if we are in fact truly dedicated to the rule of law it's appropriate to turn to the ethical rules of our profession to resolve these situations. It is not appropriate to rely on our individual moral conscience.

For example, there is currently an inconsistency between federal law and the laws of a number of states, including California, regarding the sale and usage of marijuana. Thus the question arises: Is it unethical for an attorney to provide legal advice and services to a client who wishes to engage in the cultivation, distribution and/or consumption of marijuana even though the attorney knows that engaging in any of those activities still constitutes a violation of federal law? The Los Angeles County Bar Association Professional Responsibility and Ethics Committee (PREC) answered this question in the negative in its Opinion No. 527 which was issued in August 2015[4]. PREC found that an attorney can advise a client on the subject so long as the attorney does not advise the client to violate federal law or assist the client in violating federal law in a manner that would enable the clients to evade arrest or prosecution for violation of the federal law. PREC's answer to this ethical question is equally unsatisfactory to those who have a moral conviction either for or against the use of marijuana. Nevertheless, from the point of view supporting the rule of law as it is found in our principles of legal ethics, it is the only possible conclusion. The only possible result that could flow from substituting one's moral conviction for strict adherence to those legal ethics is a diminution in our rule of law.

Likewise, there is currently much angst amongst immigration lawyers over the recent practice of immigration agents lurking in courthouse halls so that they may arrest allegedly illegal immigrants who they know to have scheduled court appearances on other matters. At a recent seminar on legal ethics presented to the Immigration Law Section of the Los Angeles County Bar Association, the panel of presenters was asked whether it was ethically permissible for immigration attorneys to advise their clients to not show up for scheduled appearances in court lest they be arrested by immigration authorities. It was obvious that this situation had, rightly so, evoked a good deal of moral outrage in the room. Moral outrage notwithstanding, the panelists concluded that since a lawyer may not advise his client to violate the law, and since an order to appear in court is akin to a law, lawyers could not advise their clients to skip court out of concern that the immigration authorities might arrest them there. Again, this answer, while ethically correct and therefore supportive of the rule of law, was morally distasteful to a considerable portion of the audience.

In each of the examples, the possibility exists that strict adherence to legal ethics might force an attorney to give advice to his or her clients that is contrary to the attorney's personal moral convictions. The question of whether adherence to the rule of law in the form of legal ethics trumps an individual lawyer's personal religious, political or moral conviction was addressed in Formal Opinion No. 2003-162[5] issued by of the State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC). This opinion examines whether ethical issues are raised when a California attorney publicly advocates civil disobedience, including violations of law, in furtherance of his or her personally held political moral or religious beliefs and simultaneously practices law. The opinion concludes that attorneys do not forfeit their personal rights under the First Amendment to express political moral and religious beliefs or to advocate civil disobedience but that attorneys must follow their professional responsibility when acting upon their beliefs and when advising clients. As such, attorneys may not let their personal political, moral, or religious beliefs adversely affect the performance of their duties to their clients.

The conclusion of the COPRAC opinion finds support in the legislative dictates of Business and Professions Code Section 6068(h) which states that it is the duty of an attorney "Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed." The language of the statute suggests the possibility that an attorney is ethically bound to represent the "defenseless or the oppressed" who espouse political, moral, or religious beliefs different from those of the attorney. Historically, this section has most often been discussed in the context of whether and in what manner private counsel who has been appointed to represent the indigent are entitled to compensation. The possibility of a broader interpretation of the duties imposed by this section exists.

Additional support for the proposition that an attorney's ethical obligations outweigh even an attorney's First Amendment rights is found in the California Supreme Court's decision in Oasis West Realty, LLC v. Goldman, (2011) 51 Cal.4th 811. In Oasis West, it was found that the attorney/respondent could be sued for legal malpractice based in part upon disclosure of confidential client communications notwithstanding his claim that such disclosure was protected by his First Amendment right to oppose a redevelopment project which had been proposed by his former client during his representation. The Supreme Court disagreed, citing with approval the following language in Justice O'Connor's concurring opinion in Gentile v. State Bar of Nevada, (1991) 501 U.S. 1030, 1081–1082, 111 S.Ct. 2720, 115 L.Ed.2d 888:  "Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech."

It seems clear that as a profession our duty to support the rule of law trumps our personal moral convictions, at least in so far as our professional activities go. Hopefully, our nation will always continue on a path that does not cause us to question this conclusion.

 



[1] Adams used those exact words initially in his seventh Novanglus letter published in the Boston Gazette in 1775, and then more famously by including it in the Massachusetts Constitution of 1780.

[2] Comment to the press on October 20, 1973 after President Richard Nixon ordered Attorney General Elliot Richardson to fire Cox from his special prosecutor position for zealously pursuing access to the then still-secret Watergate tapes.

[3] A famous quotation widely attributed to Zappa, though it is unclear if and when he said it.

[4] The opinions of the Professional Responsibility and Ethics Committee are advisory and nonbinding. They can be accessed through the Los Angeles County Bar Association website.

[5] The opinions of the Standing Committee on Professional Responsibility and Conduct are advisory and nonbinding. They can be accessed through the State Bar website.