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Event Summary: “Can Good Lawyers Be Good People? — Moral Dilemmas in the Practice of Law from European and U.S. Perspectives”
AMERICAN FRIENDS OF BUCERIUS CONTINUING LEGAL EDUCATION
“Can Good Lawyers Be Good People? – Moral Dilemmas in the Practice of Law from European and U.S. Perspectives”
April 30th, 2014, 6-8pm, Freshfields Bruckhaus Deringer US LLP, New York, NY
“Can Good Lawyers Be Good People? – Moral Dilemmas in the Practice of Law from European and U.S. Perspectives” was offered as part of the discussion series “New Continuing Legal Education” presented by American Friends of Bucerius, the German American Chambers of Commerce, and the German-American Lawyer’s Association. Markus Hartung, Director of the Bucerius Center on the Legal Profession and chairman of the Committee on Professional Regulation of the German Bar Association, moderated the program with speaker Anthony Davis, a partner at Hinshaw & Culbertson LLP and professor at Columbia School of Law.
Davis began by stating that from a legal perspective, there were often no ethically right or wrong answers to a problem. He noted that the concept of ‘legal ethics’ was a misnomer, as the rules of law that govern lawyers were not ethical or moral in nature. It is precisely this tension between individual beliefs or morals and the rules of law, however, that create ethical conflicts for lawyers.
While the legal systems of countries are often different, three core duties of a lawyer seem to be universal: the maintenance of confidentiality, independence, and avoiding conflicts of interest. The question is: What can lawyers do, when these legal duties are challenged by lawyers’ personal moral dilemmas? Citing a 200-year old case, Davis pointed out that one possible guideline was to put the client first at all costs; adding, however, that the legal reality in both the US and Germany is much more nuanced and cannot be adequately captured by such a unitary approach.
As an example, Hartung described the following case, noting that in Germany, disclosure of evidence to the opposing counsel does not exist as it does in the US: A young lawyer, facing a 35% prospect of success on a case, happens to gain useful information through a conversation with a friend. This friend has obtained the information through a social relationship with a member of the opposing counsel’s law firm. She reveals it to the young lawyer during the course of an ordinary social interaction, not knowing that the young lawyer is involved in the same case and could benefit from this knowledge. The majority of participants agreed that they would tell the client when faced with the question of whether or not the client had to be informed about this new, potentially beneficial information. Some suggested not using the information, however, as it was obtained in a private setting and therefore should not be used for professional purposes. Hartung explained that German law requires all information be given to the client, regardless of how it was obtained. If the client were to find out that the lawyer withheld information that could have changed the outcome of the trial, the lawyer could be sued. Additionally, in Germany there are no laws in place that protect lawyers should they be held liable in such cases. Davis pointed out that in the US, the law varies from state to state. Generally, the client has to be kept informed, although in some states, countervailing rules exist prohibiting the use or transmission of information that the lawyer should not have received. However, since the information was deliberately disclosed in this case, Davis agrees that any information obtained should be used for the benefit of the client. In his opinion, blame lies with the person who initially revealed the information, in this instance, the member of the opposing counsel’s firm. In order to avoid a moral dilemma, Davis suggested telling the friend to stop talking, and/or to stop listening, and then notify the client.
Further cases discussed included situations involving mistakes made by the opposing counsel, clients confessing to crimes, lying clients, and lawyers committing crimes. The program continued in the same vein: the speakers presented an ethical dilemma to the audience and held an interactive discussion on how the audience would proceed.
The different examples of moral dilemmas triggered a lively debate. As the law varies between countries and sometimes between individual states, Hartung and Davis advised the participants to share any ethical issues with a trusted partner at their firm instead of trying to solve the problem themselves. In the end, if they are aware of the possible conflicts between the rules governing their profession and their own personal beliefs and try to align both in the best possible way to serve the justice system, good lawyers can – usually – be good people.
K. Kempiners