The following is an opinion piece published in the Cleveland Metropolitan Bar Journal in June 2021.
The more laws and restrictions there are,
The poorer people become.
The sharper men’s weapons,
The more trouble in the land.
The more ingenious and clever men are,
The more strange things happen.
The more rules and regulations,
The more thieves and robbers.
Tao Te Ching – Lao Tzu – chapter 57
The Ohio Rules of Professional Conduct and their comments cover 192 pages. They are well thought out and meticulously worded. They cover both obligatory and discretionary conduct. They were designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies.
They deserve study, but they are ponderous. What if lawyers —what if everyone — based their ethics upon a clear and concise foundation?
WHAT IF THE CORNERSTONES OF THAT FOUNDATION WERE INTEGRITY, HONESTY, DECENCY, AND COURAGE?
No doubt — you were quick to realize I did not make that up. They were the core principles of W.E.B. Du Bois — altered a bit by Cornell West. They answer the question: “How does a movement stand up to oppression?”
These principles provide cornerstones for ethical behavior. They fit our lives. They fit our practice. Loosely said — but true — if you rely on the principles, you are safe with the rules.
My ethics professor (and, no doubt, many of yours) was Robert P. Lawry, Professor Emeritus of Law at Case. He introduced us to the “professional effort.” You do the work. You solve the problem so completely that not a trace is left. So many of our practice problems come from not having done what we said we were going to do of what needed to be done — from not returning phone calls to selling cases and clients short. Do the work and the problems never materialize.
One of my best friends (not a lawyer) called me to ask how I would defend the policeman in the George Floyd trial. “How would you obfuscate to get him off?” He was proud of the word (obfuscate), and I was insulted. But that is where we are. We live in a country of “alternative facts.” In the common parlance, “lawyer” means “liar.” The profession cannot abide that definition. But we can only alter perception with a prolonged reality.
But more immediately, within our practice, with clients, and with courts and opponents, honesty is imperative.
Empathy. The Golden Rule. Actions for the right reasons. Taking the time to understand our clients — their strengths and vulnerabilities. We are a service profession of the highest order.
This is the hard one. So let me steal another thought — this one from Robert Kennedy: “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”
We do not need, any one of us, to be a crusading lawyer — winning big cases and changing the world. Each of us does, however, need to do what is right. We don’t make decisions based upon personal benefit. Sometimes we actually must make decisions that are not in our personal interest. We need to fearlessly ask questions of Judges and Opponents and Clients. We need to disagree, civilly and when necessary, with the same Judges and Opponents and Clients.
WHAT’S YOUR POINT, JAY? WE ALL KNOW THAT.
Yes, we do. We know that Integrity, Honesty, Decency and Courage are, at least, a major part of our ethical baseline. However –
- Tied together they are also the basis for our credibility. Those attributes are recognized both in their actions and in their absence. Nothing is more important to today’s and tomorrow’s client than their lawyer’s credibility, nor more damaging in its absence.
- A few, but too many of us, have only one client — ourselves. Those lawyers make their decisions more often than acceptable with their own interests — money, power, acclaim — first in mind.
- But far outweighing the negative is the purity of being a good lawyer. We all know them. They walk in the room and Judges and Juries and Opponents and Clients immediately respect them for who they are and what they have done.
So here is what I have learned this year. The CMBA is, in its vast majority, made up of good lawyers, working toward being being great lawyers, and doing great things for the legal community and the people we serve. Our Committee, Professionalism and Ethics, is made up of a group of “True Believers,” trying to practice and teach what we all preach.
It has been my honor. Thanks for having me.
Many thanks to bar counsel, Heather Zirke, my consigliere. To be truthful — I was her consigliere.
Jay Milano is the outgoing Chair of the Ethics and Professionalism Committee. He teaches Ethics and Law to Journalism Students at Ohio State (6 years) and Trial Tactics to Law Students at Case Western Reserve School of Law (27 years). Milano, Attorneys at Law focuses on complex litigation, Civil and Criminal, for individuals and closely held companies. He has been a member of the CMBA since 1982.