The Connection between Ethical Advocacy and a Lawyer’s Integrity
LACBA Update, November

By Ellen A. Pansky, member, LACBA Professional Responsibility and Ethics Committee. Pansky, of Pansky & Markle, limits her practice to legal ethics, professional responsibility, legal malpractice, and disciplinary defense. She consults and testifies as a legal ethics expert. The opinions expressed are her own. epansky@panskymarkle.com

There has been much hand-wringing lately in the legal ethics community regarding so-called “Rambo” litigation practices. The organized bar has decried the presence of sharp practices, underhanded tactics, and outright dishonest and unethical conduct by lawyers. Particularly shocking to many was the Duke University lacrosse case in which North Carolina criminal prosecutor Mike Nifong was accused of withholding critical DNA test results from defense attorneys, misleading the court and State Bar investigators, and making improper and inflammatory public statements in the press. Nifong, who had served as a prosecutor since 1979, was running for re-election as Durham County District Attorney when the criminal rape case began. After the North Carolina State Bar’s Disciplinary Hearing Commissioner determined that Nifong had violated 27 rules of professional conduct, it was announced that he should be disbarred. Nifong tendered his resignation during his testimony in the disciplinary case, conceding that “much of the criticism directed against [him] is justified,” but denying that he was “a liar.”

In another case, in Fall 2007, the seven-year investigation of the Milberg Weiss law firm is reaching its climax. William S. Lerach has agreed to plead guilty to one count of conspiracy to obstruct justice and making false statements under oath, and an indictment was handed down against founding partner Melvyn I. Weiss for alleged involvement in a multimillion dollar kick-back scheme with named plaintiffs in cases handled by Milberg Weiss.

These recent developments have caused many lawyers to cringe, fearful that these high profile matters will bring even greater opprobrium upon the legal profession than had already existed.

Against this backdrop, the California State Bar Board of Governors adopted voluntary California Attorney Guidelines of Civility and Professionalism. The introduction to the guidelines states that their purpose is to promote the highest standards of attorney behavior to enhance the fair administration of justice and conflict resolution. Although the guidelines are expressly described as not constituting mandatory rules of professional conduct, rules of practice, standards of care, or disciplinary rules, boisterous objections were raised to their adoption. Among other things, opponents of the guidelines complained that they were too long, too vague, and confusing. Additionally, there are already pre-existing civility codes adopted by voluntary bar organizations, including the Los Angeles County Bar Association. Notwithstanding the objections raised, the State Bar Board of Governors adopted the Guidelines of Civility and Professionalism in July 2007.

In light of the recent renewed interest in the effect that the negative actions of a few high profile attorneys have on the reputation of the legal profession in general, it seems appropriate to remind ourselves of the basic tenets that form the basis of legal ethics. To this end, let us turn to the work of the late Roderick W. Leonard, a nationally recognized specialist in prosecutorial ethics and legal ethics in general, a 31-year Los Angeles district attorney, a named Lecturer of Merit of the National College of District Attorneys, and longtime member of LACBA’s Professional Responsibility and Ethics Committee. Leonard was a contributing author of two chapters in the 2007 publication of the National District Attorneys Association’s Doing Justice: A Prosecutor’s Guide to Ethics and Civil Liability. In the first chapter, “A Respected and Effective Prosecutor,” Leonard provided a primer for effective and ethical criminal prosecutions. Although the guidelines he set forth in the chapter are specific to criminal prosecutors, they are also universally meaningful and worthwhile to lawyers practicing in virtually all areas of law.

The following excerpt from his discourse on the connection between ethical prosecution and an attorney’s reputation and effectiveness reflects the exceptional leadership and academic standards Rod Leonard consistently promoted:

Reputation. An attorney’s reputation and legal ethics are intertwined. Think of any attorney who has the reputation of being untrustworthy. Does not the lack of trust result from a perception of that attorney’s prior ethical violations? Consider any attorney who has the reputation for questionable ethical conduct. Dealings with that attorney must, of necessity, be formal and will be either in writing or will be in court and on the record. Once an attorney has gained a reputation for unethical legal conduct, can that unsavory reputation ever be unwoven?

A prosecutor’s most valuable asset is not trial advocacy skills; it is the prosecutor’s reputation for outstanding legal integrity. A reputation for outstanding legal integrity, or a reputation for lacking legal integrity, extends not only throughout the prosecution office and to the criminal defense bar but also to judicial officers of the trial and appellate courts. To acquire and preserve a reputation for outstanding legal integrity, a prosecutor must follow the requirements of legal ethics in the focus of doing justice.

More than 70 years ago, the U.S. Supreme Court recognized that the calling of a prosecutor is not merely to win but rather to do justice. The language in Berger v. United States [295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L.Ed. 1314,1321 (1935)], which has been quoted innumerable times by courts in all jurisdictions, sets the prosecutor apart from attorneys of every other practice of law.

The [prosecutor] is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. As such, he is in a peculiar and definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

In doing justice, a prosecutor who adopts and applies the jurisdictional rules of professional conduct and legal ethics authorities will build a reputation for personal ethical integrity.

Regardless of whether one practices criminal or civil law, honesty and integrity are not optional traits. Perhaps civility guidelines would be unnecessary if more lawyers followed the admonition to “do justice.”