Professional Ethics: Foundation Stones, and Mantels, and the College of Esquires
By David C. Nutter
Are we thinking and talking about professional ethics in the right way? Are we sure of the philosophical foundations of our Bar membership? Do we remember the primary purpose of the Bar? Are our professional ethics discussions producing a Bar as ethical and professional as 40 years ago?
Often when we engage in discussions of professionalism and legal ethics, we jump immediately to the tough cases and ethical dilemmas and skip over the basic principles and foundational philosophies, on which we all seem to agree. But foundation stones are important. The ultimate strength of a structure depends on the strength of the foundation. If all we do is talk about difficulties and technicalities, we may be at risk of forgetting core truths on which the whole house is built.
Our focus often tends to be client-centric instead of Bar-centric. Because we have vital duties to our clients, and they are the ones pressing on us, we act as if our primary duty lies there. But does it? Do all of our ethical duties flow from our representation of clients or do they flow from, in the first instance, our membership in the Bar? And, of course, we are all constantly bombarded with various pressures, professionally and personally, that can so easily draw us toward a self-centered viewpoint. Business and financial needs and client concerns can create an atmosphere where winning can become paramount.
For the past 26 years, we have had separate discussions regarding ethics on the one hand and professionalism on the other. This has been a useful and necessary change to refocus the Bar’s attention on the importance of professionalism separate and apart from ethics. But in actual practice the two cannot be separated. For one to present a professional appearance as cover for unethical practice is like a gold ring in a pig’s snout, a beautiful façade on a crumbling edifice, or a shiny red apple with a rotten core. You don’t have much. For one to keep all the ethical rules but act unprofessionally is like law without equity, marriage without love, or a body without the spirit. It is a dead letter with no life. Professional ethics in actual practice requires professionalism and ethics. In proper view the two are inextricably intertwined. In truth, many of the concepts in The Lawyer’s Creed and Aspirational Statement on Professionalism are actually already imbedded in the Georgia Rules of Professional Conduct. Words such as competence, diligence, fairness and candor are found in both.
So what are these foundation stones on which professional ethics is built? What is the primary purpose of the Bar? What is the proper focus–client-centric or Bar-centric? How do we deal with the centrifugal pressures that push us to be only self-focused. How are professionalism and ethics to be unified? I believe that in the first instance the whole structure depends on our philosophical identity as lawyers—understanding who we are as members of the Georgia Bar—our focus must be Bar-centric. How we think of ourselves, how we view our identity, has a huge impact on our behavior and our ultimate success in business and in life. “For as he thinks within himself, so he is,” says the proverb. If you view yourself as successful, most often you will be. If you view yourself as a failure, you likely will be. Every successful person has faced setbacks and difficulties. The person with the mindset of success gets up and gets moving again. We know this to be true in many areas of life. For example, it has been noted that certain baseball players when they have donned the Yankees’ Pinstripes suddenly have seen themselves differently and performed at a higher level. There’s something about that uniform and the storied tradition. It can change how a ballplayer thinks of himself and that can change his performance.
Taking Up the Mantel
But wait a minute. Aren’t we here talking about legal ethics? What does a Yankee uniform have to do with the Georgia Rules of Professional Conduct? Perhaps more than we first realize. If we view the Georgia Rules of Professional Conduct as a mantel that we wear, a code of honor that defines who we are both individually and collectively as members of the Georgia Bar, the effect can transform not only our practices but our very lives.
The concept of “taking up a mantel” has ancient roots. A mantel is an outer garment or robe worn particularly in ancient times. It connotes identity and power. The particular expression “take up the mantel” derives from 2 Kings 2 in the Hebrew Scriptures where the prophet Elisha, after seeing the prophet Elijah taken up alive to heaven by a whirlwind, “took up the mantel of Elijah that fell from him.” 2 Kings 2:13. Elisha then promptly took the mantel or robe of Elijah and struck the waters of the Jordan River with it, and just as they earlier had for Elijah, the waters also parted for Elisha. And so Elisha went in and ministered to Israel in a double portion of the prophetic authority and power of Elijah. Upon taking up the mantel, Elisha believed he was a prophet, and therefore began to act like one.
Now I’m not promising that the Chattahoochee will part for you if you don the mantel of a member of the Georgia Bar and slap down your blue blazer in the muddy waters, but I do believe there is a transformative power and authority that can accompany our Bar membership if we will accept it. It can transform our dealings with judges, with opposing attorneys, and with clients. In fact, most lawyers recognize this on some level even if they have not bothered to investigate its roots. The fact is that there is a big difference between a licensed attorney and a law student. There is a big difference between a licensed attorney and a manager or owner of a business. There is a big difference between a licensed attorney and a client. The licensed attorney is part of a special order, subject to a higher code of behavior, subject to special duties and entitled to special privileges—an Esquire (if we may reclaim the meaning of that word)—that is, a person of rank, an acknowledged leader in the community under a code of arms, a code of conduct. As such, the lawyer acts (or ought to act) on a higher plane. Indeed, as counselors and advocates and officers of the court, we lead and guide our society in the right way to handle and resolve legal matters. See Preamble Georgia Rules of Professional Conduct.
A College of Esquires: Lincoln and the Circuit Riders
Perhaps the word “college” in its ancient usage (community, society or guild) best captures what the Bar should be striving for: a learned order of law experts who handle legal matters and law cases for the promotion of civilization; a College of Esquires operating under a fixed code of behavior for the overall good of the community. Inherent in the concept of a “college” of attorneys is collegiality among the attorneys and judges that make up the “college.” Collegiality is difficult in the modern world: difficult for families, difficult for neighborhoods and cities, definitely difficult for attorneys. Maybe we need to revisit our roots. Listen to Lincoln’s experience riding the circuit:
“Most Springfield attorneys who were not independently wealthy felt obliged to travel with the judge of the circuit court when he made, twice every year, his pilgrimage from one county seat to another in his district. . . . At night they stopped wherever they could find lodgings. Sometimes, Herndon remembered, they slept ‘with 20 men in the same room—some on old ropes—some on quilts—some on sheets—a straw or two under them.’ When they arose the next morning, a pitcher of cold water outside and a single towel served for their ablutions …. Arriving on a Saturday or a Sunday, the lawyers resorted to a favorite hotel or tavern near the courthouse, where, again, they slept two or three to a bed. . . . The next morning the lawyers would be approached by litigants . . . .There was little time to study cases closely, much less to look up precedents; lawyers on the circuit had to rely mostly on general knowledge and common sense. . . . After supper the judge and the lawyers . . . would sit before the fire and swap tall tales and anecdotes. When that happened, Lincoln, of course, was a center of attention, and, as Herndon remembered, ‘Judges—Jurors—Witnesses—Lawyers—merchants—etc etc have laughed at these jokes . . . till every muscle—nerve and cell of the body in the morning was sore at the whooping and hurrahing exercise.’ By the end of the week the session was ended, and the judge and the attendant lawyers moved on to the next county seat.” David Herbert Donald, Lincoln, pp. 104-06 (1995).
Now that’s collegiality! While the modern world neither requires nor permits such close quarters among lawyers and judges, there is a vital principle at play here that is within our grasp. In the age of Lincoln, the Bar was collectively a legal system that came to town for a week to allow folks to resolve their disputes in a peaceful way without reference to revenge or retribution. There was a certain loyalty within the college of circuit riders, judge and lawyers alike, that transcended the attorney-client relationships in the various towns. The lasting relationships were among the circuit riders themselves. These men were not far removed from frontier justice, which often amounted to “might makes right.” So the Bar, to the circuit riders, was not just a means of making a living; it was a vital civilizing force in which they were all actors. Yes, they had duties to their individual clients within this system, but their first duty was to the system of justice, itself, represented in the Bar. It was that system in which they all played a vital role that allowed civilization to flourish in the fledgling nation.
The Civilizing Function and Force of the Bar
This is where professional ethics actually begins in my view. We have now been so long at this that we forget sometimes that the Bar is such a great civilizing influence—but it is. We by our practices, ideally, are constantly leading and teaching our society how to resolve disputes in a civilized way. That’s what all colleges do: lead, teach, train. It is telling that with the fall of the Western Roman Empire in 476 A.D., that the legal profession as we know it collapsed and did not reappear for hundreds of years. Civilized dispute resolution was not a hallmark of the Dark Ages.
While our society is far more complex than in Lincoln’s day and an attorney’s ethical obligations can be equally complex, the foundation is the same as it always was. The outworking of certain ethical obligations develops naturally from a foundation of collegiality. Yes, it is very important to be diligent in our representation of clients. Rule 1.3. Yes, we must keep client confidences (Rule 1.6) and provide competent and zealous representation as an advocate (Preamble: A Lawyer’s Responsibilities ; Rule 1.1). But these duties flow from our membership in the Bar—the College of Esquires—not the other way round.
Am I saying that American civilization hinges on your handling of the next soft tissue neck injury? Well, yes, actually. It has been our stable and reliable legal system and our collective devotion to truth and the rule of law that has allowed our society to prosper. John Donne said, “If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were.” John Donne, For Whom the Bell Tolls. When a single lawyer ignores the duties and obligations of the Bar, justice is the less. To retain the civilizing influence of our court system, attorneys are called upon to treat every case in just that sense. That is the special order to which we belong. If we don’t know our true identity in the College of Esquires, the practice of law is diminished and our system of justice is at risk. Look around the world if you want to see a few hundred examples of what the alternative looks like.
If we put ourselves for a moment back into the circuit riders college, certain of our core principles become quite simple and clear. You can’t travel around for several months in very close quarters with the judge and fellow attorneys and be found to be a liar, or one who files frivolous claims, or asserts frivolous defenses, or fabricates evidence, or suborns perjury or steals client funds, or misrepresents the law, or engages in harassing behavior. You can’t be a win-at-all-costs sort. It just can’t happen. The rest will rise up. And, anyway, why would you want to? These are your friends, your colleagues with whom, after court hours, you share stories and laughter and camaraderie–life. Each new town brings new clients, but the lasting relationships are in the Bar. There lies the continuity.
Foundation Stones in the Georgia Rules of Professional Conduct
While the actual relationships among lawyers and judges today are not routinely so personal as in the days of the circuit riders, the core principles that embody such a close-knit Bar are still found today in our Rules of Professional Conduct. Rule 3.1 Meritorious Claims and Contentions requires that lawyers refrain from asserting claims or defenses that are “unwarranted under existing law” or taking other action that “would serve merely to harass or maliciously injure another.” This rule, of course, does not preclude good faith efforts to extend, modify, or reverse existing law. Rule 3.1b. Rather, it is the embodiment of the principle of the rule of law and the requirement of good faith. Inherent in the Code of Professional Conduct are the belief in the rule of law and the imperative of proceeding in good faith for the purpose of justice. Rule 3.1 reflects these foundational truths.
Similarly, Rule 3.3 Candor Toward the Tribunal requires that attorneys be truthful in their dealings with the court. A lawyer is prohibited from knowingly making false statements of material fact or law to the court. 3.3a.1. Nor may a lawyer “fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” 3.3a.2. And a lawyer is prohibited from offering “evidence that the lawyer knows to be false.” 3.3a.4. “If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.” 3.3a.4. And “[a] lawyer may refuse to offer evidence that the lawyer reasonably believes is false.” 3.3c. Further, an attorney shall not knowingly fail to disclose controlling legal authority directly adverse to the client’s position. 3.3a.3.
These rules establish that a lawyer’s first duty is to the administration of justice itself. Comment  to Rule 3.3 explains:
“This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.”
Likewise, Rule 3.4 Fairness to Opposing Party and Counsel, requires that lawyers engage in fair dealing with opposing parties and clients. Again, in the days of the college of circuit riders, this was implicit in the close relationships among the members. Today, it is codified in Rule 3.4. The principle is the same. “A lawyer shall not obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” 3.4 a. A lawyer shall not “falsify evidence,” “counsel or assist a witness to testify falsely,” pay a witness “contingent upon the content of the testimony or the outcome of the case,” 3.4 b., or “request a person other than a client to refrain from voluntarily giving relevant information,” 3.4f., or “use methods of obtaining evidence that violate the legal rights of the opposing party or counsel,” 3.4 g., or “present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.” 3.4 h.
And, Rule 4.1 Truthfulness in Statements to Others provides:
“In the course of representing a client a lawyer shall not knowingly:
a. make a false statement of material fact or law to a third person; or
b. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by client, unless disclosure is prohibited by Rule 1.6 “
Comment  explains: “A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts.”
Taken together Rules 3.1, 3.3, 3.4 and 4.1 establish a broad foundation of truth telling and honest dealings with the court, with opposing attorneys and clients, and with others to which our client representations are largely subordinated. The Bar is designed to raise the citizenry to a level of truth telling and fair dealing in bringing and resolving disputes. We, as attorneys, members of the Bar, officers of the court, the College of Esquires, are entrusted with the high calling of raising our clients up to this level. We are the guardians of a truthful and fair legal system that our citizens can trust. Our job is to advocate zealously for our clients within this sphere of truth telling, honest dealings, the rule of law and good faith. We begin with these and make our client representations conform to these standards. Our zealous advocacy bows to the truth; the truth does not bow to our zealous advocacy.
Again, using the circuit riders as our example, why on earth would Abraham Lincoln or one of his fellow circuit riders falsify evidence for some townsperson to the insult and detriment of his fellow circuit riders, their clients and the court. They wouldn’t. Tomorrow they are on to another town and another client. Winning is not everything to the circuit riders. They all win some and lose some. The system of justice is the show. They are all important participants. The system of justice is the product being offered. “Honest Abe’ was not just a campaign slogan. It was a practice and lifestyle built on years of riding the circuit.
Who Am I? What Mantel Am I Wearing?
This is a matter of philosophy. Is our primary philosophical identification with the Bar or with a client? Is our primary motivation winning and financial gain or presenting the well-tried case? Is our primary commitment to an ideological viewpoint or the system of justice? How we answer these questions has a significant impact on how we practice law and how we deal with opposing counsel and others. If my first loyalty is to the Bar itself and our system of justice, then unethical and unprofessional conduct becomes most unlikely. If on the other hand, my first loyalty lies elsewhere, I am at risk.
Lawyers by nature and training compartmentalize. It is essential to the practice. We have competing loyalties and duties that must be sorted out. The first words of the Preamble to the Georgia Rules of Professional Conduct make it clear: “ A lawyer is a representative of clients, an officer of the legal system and a citizen having a special responsibility for the quality of justice.” And paragraph  of the same Preamble states: “In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person.” A lawyer can be loyal to his client and offer him zealous representation while all the while sustaining an undergirding loyalty to the fellow bar member who happens to be the opposing counsel in the particular case. But I am suggesting that it is important for lawyers to see one another, in one sense, as on the same team, as equal parts of the same system, fellow members of the same exalted college which is our justice system. Collegiality is a decision I make about who I am before a case even begins. The whole issue depends on that.
Lincoln and his fellow circuit riders are a parable to us in the modern day. It is not that lawyers were all perfectly honest then or that none had mean motives. But the nature of circuit riding created a culture and a mindset that made unprofessional and unethical conduct improbable. Our Bar membership and our ethics rules codify the circuit riders’ mores. But a codification is not as sure as a culture. The codification must be accepted, and embraced, and put into practice.
Putting on the Mantel and Changing the Culture
Our legal culture has certainly changed. The circuit riding days are gone forever. But must the culture of professional ethics also disappear? It is harder today. It is more complex. Our loyalties are, in practice, more divided. And divided loyalties create greater risks of professionalism and ethics problems. But at the core it is a matter of identity. It is a decision about who you are and who you are going to be. It is a matter of putting on the mantel.
With whom do we spend most of our time? Who pays our invoices or salaries? Where does our next case come from? The circuit riding system answered all these questions simply and easily. Lawyers spent their time with their opposing lawyers and the judge, constantly reinforcing the concept of the Bar. Circuit riders represented plaintiffs and defendants in a wide variety of claims. There were no specialists. Their bills were paid by individual clients. New cases came to all the circuit riders as they moved to a new town. Thus, there was a natural loyalty to the Bar. Not so today.
With whom do lawyers spend most of their time today? Not opposing counsel usually. We spend our time with other lawyers in our own firm, or with an employer, or with an insurance carrier, or with a client, or with like-minded and similarly situated lawyers in specialized bars and associations. There’s a plaintiff’s bar and a defense bar. There’s employer’s counsel and employee’s counsel. And so on. To be sure there is some overlap, but the specialization is undeniable. And who pays my invoices and sends me new cases? On the defense side, often it is the same institutional client over and over again. All of this can greatly affect our thinking regarding our identity as a member of the Bar. Am I primarily a member of the Georgia Bar or a member of GTLA or GDLA. If my primary identity—in my own thinking—is with one of the specialized associations, then it is an easy step to begin to think of my opposing counsel as “the dark side.” Collegiality disappears. The ends can begin to justify the means. Professionalism and ethics is at risk. This is not a criticism of specialized associations, insurance carriers, or institutional clients. It is a warning regarding how we think about and rank our various affiliations.
There’s an easy test to try our hearts. Lincoln and his fellows could strike hard, fair blows at each other all day long and then gather together in the evening and share laughs together. If you have not yet exchanged hard, fair blows at trial with opposing counsel, and then when the jury stepped out, exchanged a good laugh, may I gently suggest that you may not yet have really begun to live the life of an Esquire. If you, as the attorney, take all of opposing counsel’s arguments and actions personally, are you really any different than your client?
Wrong Thinking Leads to Wrong Action
Most serious breaches of professional ethics begin with wrong thinking long before the violation manifests. There’s a natural affinity with those with whom we spend most of our time. Indeed, this is one of the great risks for insurance defense lawyers in the so-called tripartite relationship. The insurance defense lawyer’s day to day lasting relationship is with the insurance carrier. These are the people you deal with day in and day out. You like them. You develop friendships. They pay your bills or perhaps they are your direct employer. You owe them certain professional duties. You share life’s ups and downs. Your future livelihood depends on them. But they are not your client in a given tort case. The insured is the client and Rule 1.8f. Conflict of Interest: Prohibited Transaction and accompanying Comment  makes clear that the lawyer must maintain the lawyer’s independence and the confidentiality of the lawyer-client relationship. The insurance defense lawyer, as a conscious decision and an exercise of will, must choose loyalty and confidentiality to a relatively short-lived client, instead of to the longstanding relationship with the insurance carrier.
If a conflict arises between the client and the insurance carrier regarding a reservation of rights letter, for example, the insurance defense lawyer must choose the client-insured and strenuously advance and defend the insured’s position, protect the client’s confidential information, and brook no interference to the lawyer’s independent professional judgment. Rules 1.8, 5.4c. Professional Independence of a Lawyer. Insurance defense lawyers all over the state make this mental adjustment multiple times every day. To fail to do so is to court disaster. In a recent Daily Report article, malpractice and ethics gurus, Randy Evans and Shari Klevens, reported that malpractice claims are increasing against insurance defense lawyers “at an alarming rate.” J. Randolph Evans, Shari L. Klevens, “Insurance Defense Attorneys Beware,” Fulton County Daily Report (August 12, 2014). Sobering.
Or what if money making or winning becomes my primary objective instead of promoting our system of justice? Acceptance of that thought makes me much more prone to cut corners, to falsify evidence, to make misrepresentations. The violation was actually born in the wrong thought. We all have an obligation to our families and desire financial security. But excessive self-focus is a great enemy of Professional Ethics. If we are most focused on our personal needs and advancement instead of the system of justice we serve and the client we represent, then Professional Ethics will stumble in the street. From this thinking flow a host of violations from conversion of client funds, to conflicts of interest, to improper contacts with represented persons, to concealment of evidence and so on.
Striking the Waters
How do we resist these pervasive pressures? Certainly some external actions help. Participation in Bar events, The Lawyers Club and the like provide opportunities for lawyers to interact and socialize outside of the litigation setting. When we know our opposing counsel outside of the confines of a lawsuit, we are more prone to treat them professionally and ethically. But we cannot possibly develop a personal rapport with every opposing counsel. The Bar is too large today for that. I also believe that the growth of mediation as a regular part of the litigation practice has helped encourage civility. The personal injury Bar has been one of the highest volume users of mediation services, and it also has perhaps the most collegial bar.
The ultimate answer, however, rests in a philosophical decision—a choice. Each lawyer must make a conscious decision to take up the Mantel of Professional Ethics. Each must decide that the collegiality of the Bar is a vital end in itself, necessary for the nurture of civilization, and from which all professional ethics inevitably must flow. Whether I actually know or like my opposing counsel, I can choose to believe that they play an important role in our system of justice because they occupy the position of an officer of the court. I can choose to view them as a fellow member of the College of Esquires who collectively are bringing a crucial civilizing function to our society. Whether my opponent embraces the ideal is not the issue. My behavior is not contingent on the behavior of another. I am devoted to the Bar itself; I am better for it; our system of justice is better for it. This is the essence of professional ethics.
The Sacrifice of Our Service
Devotion to a professional code of conduct, while carrying great benefits, is not without cost. One of my college roommates has made a career in the military. He told me of an experience he had on a joint exercise with the British Army. After a day of field exercises, the British Officers left the field to be cleaned up by the enlisted men. In contrast, the U.S. Army had both officers and enlisted men out there cleaning up. Later, my friend asked one of the British enlisted men if he minded their officers leaving the clean up to the enlisted men. The answer made a deep impression. The British enlisted man said, ”We don’t mind at all cleaning up for our officers because when the fighting starts, our officers lead us into battle and teach us how to die.” On such sacrifices great civilizations are built.
There may be days when our devotion to the Bar and our Code of Professional Conduct proves very costly. Some have lost a job or a crucial client. Others have faced public criticism and misunderstanding. A few have even lost their lives. Such is the sacrifice of our service to the Bar. On such sacrifices our great civilization has been built. This is who we are as attorneys. This is the Mantel we are called to wear. This is our noble College and our cornerstone.
David Nutter, Esq. is a mediator with Miles Mediation in Atlanta. He has successfully mediated 1,000+ cases involving commercial disputes, employment litigation, restrictive covenants, contracts and torts, corporate and partnership litigation and dissolutions, real estate, technology implementations, trust and estates, insurance coverage, construction, securities, banking, nuisance claims, false arrest and excessive force cases, and personal injury suits including automobile wrecks and premises liability claims. David also has an active arbitration practice, having served as an arbitrator in business and partnership disputes, tort and contract actions, breach of fiduciary duty claims, real estate matters and construction disputes.
To view David’s availability, click here.