Inaugural Dinner of the
William Augustus Bootle
American Inn of Court
September 28, 1999
We all are heavily indebted to Judge Hugh Lawson, not just for his wise and sound adjudications, but also for his innovative and constructive ministrations. For instance, he let DuPont and their attorneys salve their consciences, hurting because of recent transgressions in judicial discovery proceedings in a case pending in the United States District Court over in Columbus. He let them bring into court about $11,000,000. He said he wouldn't let that money go to Washington because it might get lost up there. He earmarked these funds for our four accredited law schools to teach professionalism and ethics. Each school established a chair with two and one-half million of its funds. For some inexplicable reason, or no reason at all, Mercer gave her chair my name. When I caught my breath, I wanted to refresh my recollection of these subjects to see what the occupant of my chair would be teaching. So I reached for some dusty volumes on the canons of legal ethics and the Georgia Rules of Professional Conduct. After reading these materials, I looked back to see if I could see a composite of what I had read. And, yes, I could. And I have reproduced that composite in this painting, this phantom painting, upheld on this imaginary easel to my left, that composite consisting of what I have chosen to call the six professions of our profession _ the six claims we make for ourselves, and our conduct, as lawyers.
It is never too soon nor too late to talk with law students, law professors, and lawyers about professionalism and ethics.
Using my walking cane as a pointer, let us unveil this painting and see what it reveals. We see in the lower left corner integrity _ simple, plain, common, old-fashioned honesty. Integrity is the rock-bottom foundation upon which the lawyer builds his career. It is the sine qua non- the without which nothing. The lawyer must be as clean as a hound's tooth and represent the high watermark in character.
Integrity is so deep-down, so fundamental, as to be invisible and intangible; but up closer to view and touch, is its facet and beautiful aspect, which we call credibility _ meaning trustworthiness and reliability. Credibility is established slow, how slowly. Martindale Hubble, rating agency, reserves its "V," very high morally, for lawyers who have practiced at least five years. Justice Thurgood Marshall once said to young lawyers: "There is only one type of reputation that a lawyer can earn quickly. All others come slowly."
A strange concomitant is that credibility, established so slowly, can be lost in an instant. One serious indiscretion, one slipping of the foot, one betrayal of a confidence reposed by a client, one reneging on a stipulation with counsel, and it is completely lost. And, once lost, it is never regained with its pristine purity. A bird with a broken pinion never soars so high again. We can drive a nail into a wall and pull it out, but it leaves a hole, the damage is permanent. Credibility, once established, must be protected as if it were a crown jewel; it is, indeed, the pearl of great price.
Mid-page at bottom we see competency. The lawyer must be, or be about to become, fully capable of handling what is entrusted to him. To that end we have law schools, libraries, and continuing legal education. "Dumb lawyer" must forever be an oxymoron! We are one of the three learned professions, along with medicine and theology.
At the lower right corner we see confidential. The lawyer and his client are one. What goes on between them goes no further without their consent. The law classifies these confidential communications as privileged-privileged against compulsory disclosure. The client's secrets are as safe with us as are the penitent's confessions in the bosom of his priest.
We now see, in the upper corner, civility _ meaning politeness and courteousness with all with whom we deal. That includes co-counsel, opposing counsel, witnesses, jurors, and, of course, the court. To be sure, the lawyer is a contestant, combative and pugnacious, but that does not mean that he must be always gross, coarse, and crass. He should temper his crassness. We should, as our mothers taught us, be ladies and gentlemen on all occasions.
The courtroom and the squared circle have much in common. Engagements are adversarial. Each has its code of ethics. The Canons and the Queensberry Rules. Both codes are generally observed. The common goal is to destroy the opposition. Neither code restricts the power of the punch, except that the Canons proscribe "unnecessary harm." It is alright to knock the opponent down but, preferably, not out. Civility is never out of place. It is always appropriate.
In the squared circle we sometimes see the grandest display of civility. Near the end of a long, evenly matched contest, one contestant begins to emerge as victor. If we watch closely, we see him case a quick glance at the referee, carrying a clear and unmistakable message: "Please stop the fight. Don't let me hit him again. I don't want to hit him again." That is civility in action!
Throughout the trial, the lawyer focuses on each juror, trying to figure him out, size him up. The lawyer will do well to remember that, throughout the trial, each juror is focusing on the lawyer, figuring him out, sizing him up. The appraisal must be based upon the lawyer's conduct during the trial. Is he courteous and respectful? Or disrespectful and uncivil? And, is he trying to lead us right or wrong? Can we trust him?
Some lawyers have the happy faculty of being able to gain and hold the confidence of the court and jury throughout the trial. When a lawyer has done that, he has taken a giant step toward victory. Trial advocacy is more a matter of art than of science.
At top center of the painting we see courage. A brother of Robert F. Kennedy, an older brother, with considerable help it is reported, wrote an inspiring book, Profiles In Courage. Robert must have read that book because, in 1962 at the University of San Francisco School of Law, he said: "Courage is the most important attribute of the lawyers. It is more important that competence or vision. It can never be delimited, dated or outworn, and it should pervade the heart, the halls of justice, and the chambers of the mind." A lawyer must have courage to advocate a minority view and to defend an unpopular accused. A champion of civility, he must have the heart of a warrior. And, someday, he may ascend the bench where, without courage, he should never be.
In the upper right corner, we point to zeal. Canon 7 says: "A lawyer should represent a client zealously, within the bounds of the law."
That canon typifies and shouts one of the most distinguishing features of our court system _ its adversarial nature. Every case is docketed A vs. B, A against B, and vice/versa. There the fight begins. Legal thinkers from Dr. Samuel Johnson down to the television contemporary, Alan Dershowitz, endorse the idea that when lawyers do their very best to represent their clients zealously, somehow justice prevails. Under this view, lawyers are not seekers after truth. Is that startling? They seek truth only insofar as truth promotes their client's cause. They are not obliged to seek out and produce evidence that hurts their case. If there be such evidence, it is the duty of opposing counsel to find and produce it. That has been, and still is, the traditional view.
But critics are appearing. Changes are being advocated. A new book is out, written by two law professors from California, Richard Zitrin and Carol M. Langford. Its tone is indicated by its title, The Moral Compass of the American Lawyer, by its subtitle, Truth, Justice, Power, and Greed; and by the title of the American Bar Association Journal's review, Tempering the Crassness. These authors point out that, as the industrialization of law practice continues, as law firms become international conglomerates, and as the dollar sign becomes the bottom line, we are forgetting our obligations to society.
The advocate certain changes including:
One, relieve the lawyer from confidentiality, when his client's actions pose harm to an individual or to the public. Two, prohibit billing two clients for the same time without their informed consent. (A reasonable change). Three, (to my surprise) remove the word "zealously" from the canons. They argue that we can adequately represent our clients without become zealots in their causes. They think the word zealously invites imbalance, and makes us myopic.
They discuss this case, inter alia: A manufacturer produced an artificial valve for the human heart. It contained a defect and was killing people. The surviving relatives of one victim brought a products liability suit. Their attorney was a young lady who, through persistent discovery, forced the production of memoranda showing that defendants knew of the defect, even before the death, and had deliberately decided to continue selling the product while seeking to remedy the defect. Defendants offered to settle for $5,000,000 (much more than plaintiffs could hope to recover) if plaintiffs and their attorney would forever keep secret this settlement and all information they had acquired concerning the defect.
The lady lawyer struggled with her conscience but, considering that her sole duty was to her clients (to accomplish what was best for them), and lured by the enormity of the offer, and remembering that both her clients and she had children to send to college, and how helpful two-thirds of the offer would be to her clients and one-third to her, she decided to let the clients decide, without recommendation from her. They accepted, and later she suffered dreams about those innocent victims continuing to die.
Is there problem here? To be sure, courthouse law does not compel one to become a good Samaritan. But, it is possible that plaintiffs and her attorney become particeps criminis to these continuing deaths by, for money paid, positively and affirmatively agreeing to suppress evidence, by permanently withholding from the public information it so sorely needed? And by requesting the court to seal the entire record, including the settlement amount?
Another proposed change is that we adopt multidisciplinary practice. That means that we admit accountants and investment counselors and others into our law firms to practice with us. The argument is that, in this way, we can offer a more complete package of service to our clients. The American Bar Association recently grappled inconclusively with that quest. We know that, for many decades, accountants have been practicing law on our perimeters. I hope we can control this situation without adopting such drastic measures.
Our profession faces possible changes. It is not stagnant; it is vibrant and vigorous. It is concerned with much more than status quo. Challenges await us, may we be equal to those challenges!
I leave this painting with you. I take my pointer along!
The Docket thanks Judge Bootle for his kind permission to publish this speech.