Freedom of Speech and Professional Responsibility
Sam has told me about some statements Rita, Sam’s attorney, has made in his presence that bothered him. Rita spoke disparagingly to her secretary in front of Sam, she used profanity when driving and included an inappropriate gesture to another driver, she was harsh with opposing counsel at the hearing, but most upsetting was her words to Sam on occasion. Rita indicated to Sam that she believed he was only pretending to be competent but that what she believed was not important – only winning was important. This was spoken in a busy lunch room . Was this not a careless breech of Rule 1.6 client confidentiality or just her opinion. In each instance, Rita was only speaking her mind. Is that wrong? Sometimes to there were times Rita did not speak when perhaps she should have. When to speak and when not to speak? That is an interesting question.
PREJUDICE
An attorney is an officer of the court. Does that label restrict an attorney’s freedom of speech and expression? Within the court room, offensive language and gestures would be disruptive and interfere with justice. It is clear that that the court should have the power to discipline such disruptive behavior. Indeed in a criminal case, the court must assure the sixth amendment guarantee to a fair trial. But what of such behavior outside of the courtroom wall? An attorney has an obligation to the court as its officer to promote justice, and an obligation to her attorney as counselor, confidant, and advocate. Within this dynamic of responsibilities does the attorney lose some her self and her rights? Yes.
Admission to the practice of law is protected from those who do not share the same fundamental truths such as racial equality if those subversive beliefs reveal an intent to discriminate. Matthew Hale was an advocate of racism and anti-Semitism who, after passing the Illinois State Bar Examination, was denied admission into the Illinois State Bar. The committee held in part that "Hale's belief in private-sector racial discrimination and his intent to privately discriminate were inconsistent with the letter and spirit of the Rules of Professional Conduct." Hale v. Committee on Character and Fitness for State of Illinois, 2002 WL 398524, (N.D.Ill. 2002).
The Arkansas Model Rules of Professional Conduct Rule 8.4 (d) says that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice." It is prohibited for an officer of the court to commit acts of discrimination based on race, sex, religion, national origin, or any other similar condition against litigants, jurors, witnesses, other lawyers, or the court while performing his duties as part of the practice of law. Such discrimination, according to the Comments, "subverts the administration of justice and undermines the public's confidence in our system of justice, as well as notions of equality."
The Arkansas Model Rules of Professional Conduct Rule 8.4 forbids expression of discriminatory "free speech’ if it is prejudicial to the administration of justice. The Hale case forbids such conduct in an officer of the court -- period. Rita openly expresses her belief that Sam, by offering to pay for her lunch, is pretending to be like normal people. Rita is expressing her judgment on Sam’s reduced capacity and her bias toward all people who are mentally disabled. This statement does not concern race, sex, religion, or national origin. Is mental capacity an "other similar condition as mentioned in the comments to the rule?" Even if it is not a protected category, the comments to rule 1.14(b) warns about avoiding disclosure of a disability that could adversely effect the client. Certainly Sam’s level of functioning goes to the heart of his case.
Rule 1.6 requires that a "lawyer shall not reveal information relating to representation of a client" (Emphasis added.) Further, the privilege "protects communications, not acts" according to the Arkansas Annotation to the Rules. Howard W. Brill, Arkansas Professional and Judicial Ethics, at 58 (5th, 2000). Rita’s interpretation is not based on observation of specifics acts, which is not protected, but of general characteristics and mannerisms more than acts. Her opinion thus formed relate directly too the heart of the case and relate to her representation of Sam. Id. Disclosure of these mental impressions would seriously prejudice his case. Further, as an attorney her mental impressions of such information and case planning are absolutely protected. Rita had no right to speak so candidly at the lunch counter.
Is there a line dividing when the attorney is an officer of the court and when she is her own person? Where does the line exist. The attorney obviously leaves some of her rights to free speech at the courtroom door. There offensive language and gestures would be disruptive and interfere with justice. Does the attorney leave some of her rights to free speech at the law firm door? Activities there by definition would certainly be "performing duties in connection with the practice of law." Rule 1.6 on client confidentiality requires that "(a) lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation". This requirement has no limitation to the 9 to 5 workday. It does not limit disclosure to specific persons. This blanket requirement instructs the attorney that she shall wear her badge as officer of the court to bed at night, the golf course on the weekend, to the retirement home, and to her grave.
The Preamble Preamble to the Arkansas Model Rules of Professional Conduct charges that a "lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.". The Scope of the Arkansas Model Rules of Professional Conduct provide that "(t)he Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. Therefore, it is the goal of the attorney to maintain high the professional and moral standards required during both her professional life and her private.
Not a small part of that responsibility is the duty of all members of the profession to maintaining the integrity of the profession. The profession is battling a high tide of negative conceptions and beliefs by the public. Only by the maintenance of high professional and moral standards can this tide be turned. Will the courts find conduct unbecoming an officer apply to an officer of the court?
Derogatory or prejudicial comments by an attorney concerning an individual with a mental handicap may not rise to the level of interference with justice directly but such comments promote the prejudice which ultimately effects justice. They may be spoken outside the scope of an attorney’s duties and may not directly offend a specific rule, but attorneys have a larger duty. They have a duty to God, themselves, and their profession. The rules do not exhaust all moral and ethical considerations. Ultimately, an attorney must be guided by her own personal conscience.
DISHONESTY
The Arkansas Model Rules of Professional Conduct Rule 8.4 (c) says that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Didn’t our mothers teach us that lying is being dishonest. Isn’t that the definition in the dictionary? Certainly Rule 3.3 expressly forbids lying or allowing a witness or client to lie to the tribunal.
Sam doesn’t realize, I’m sure that he kept Rita from shamelessly breaking this rule. Perhaps Sam has the better more basic understanding of dishonesty. Rita was painstakingly going over Sam’s testimony. To her credit, she learned patience, understanding, and humor help her to teach Sam what he needed to know and understand for trial. One part of the testimony she wanted to illicit from Sam was in regard to the availability of free tutors at the YMCA for Lucy if she needed them. The question was going to be, "Sam, what if Lucy needs help with her homework and you can’t help her?" Rita wanted Sam to answer, "I found an after school program with free tutors at the YMCA." Sam did not want to give that answer. Sam responded, "But that’s not the truth. You found the program." To Rita it was a subtle difference.
She tried to explain to Sam that it was all right to just "tweak" the truth. Sam broke into a discussion about Rita’s own son (about 12 years old) and their relationship. Rita and her son’s relationship was strained from her focus on her vigorous professional career to the exclusion of else. She began to make excuses for her inattention to her son. Each such statement was met with Sam proclaiming "Tweak!" He understood.
That subtle difference gave the impression that Sam was more capable of handling important matters in his and his daughter’s life that perhaps he really is. That impression was exactly what Rita was trying to accomplish. That little lie, however subtle, would have been committing a fraud upon the court.
Ironically, it was Sam who gave a false statement on the stand. But, to Sam it was not a false statement . I have known Sam for a very long time. After you are around him awhile, you will understand how he reasons. When a concept is hard to grasp he will relate it to something similar that he does understand. For example, when the school was trying to explain to Sam that his daughter was out growing him, he remember Lucy asking him if instead of their normal weekly excursion to IHOP they could instead go to Bob’s Big Boy . To understand or to reconcile these two pieces of information, he remembered and quoted something I had explained to him about John Lennon. He told the principal, "John wanted to try new things see. But it wasn’t Yoko’s fault. Yeah. John wanted to try new things. You can hear it on the White Album, Annie says. Yeah." He was, not very effectively, telling the principal that he understood.
In the court room he was ask "what makes a good father." Sam remembered one of his and his friends favorite movies, Kramer v. Kramer, > that expressed better than he could what made a good father. It went something like this, "I guess I've had to think a lot about whatever it is that makes somebody a good parent: constancy, patience, understanding ...love. To listen, to listen even when you are too tired to listen. Sometimes I forget he's just a little kid...But I love him... More than anything in this world I love him. Billy has a home with me, I've tried to make it the best I could. It's not perfect. I'm not a perfect parent." Everyone in the court recognized the falsity of the statement before Rita could take any measures to stop Sam. His friend stood and finished the movie line and added "Kramer v. Kramer, 1979, directed by Robert Benton." Rita did not understand Sam well enough yet to explain that he was not trying to commit a fraud upon the court. He was just trying to explain what he understood.
When little Lucy was questioned, however, she fully intended to lie. I am betting if I know my Lucy, she had her little fingers crossed behind her back thinking that that would make it okay. Rita was present and heard every lie. Rita said nothing. Sam watched from another room on closed circuit TV imploring Lucy’s image to tell the truth. Opposing counsel did eventually elicit the truth, but should Rita have spoken before then? Rita does not directly represent Lucy; she is Sam’s attorney. Lucy should have an appointed attorney ad litem but it is not clear who there that day was that person. Certainly, Lucy’s attorney ad litem should have spoken up at that time or did something. But should Rita have spoken? The lie would have been to Rita’s benefit, but that certainly is no excuse. Rule 3.3 (d) requires an attorney to " inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." It was, therefore, her responsibility to inform the court of the truth of the situation.
It was obvious that Rita had no intention of informing the court of this information. She had previously tried to convince the social worker to not report an unauthorized excursion that Sam took with Lucy (more accurately that Lucy took Sam) after a visitation period. Rita intended to suppress evidence and withhold material facts pertinent to the case for the court. The only reason Rita is not possibly facing ethics charges is that all the facts did come out, and the social worker did immediately fully disclose the visitation incident. Just the attempt, however, could have had the same result, but Rita was lucky in that her actions were not reported.
Rita’s delay during Lucy’s questioning could have another explanation as well. If Rita knew that everyone else there, including opposing counsel, knew the entire truth, she did not have to speak. She would have known that opposing counsel would elicit the truth.
Truth is a slippery thing sometimes. Speaking what you believe may sometimes not be allowed if it is a violation of a confidence or prejudicial. Saying a partial truth, a twisted truth, a deceptive truth can all equal an outright lie. Lying is dishonesty. So, too, is preventing the truth from being found. Legal ethics is not so far removed from what our mother’s taught us after all. Is that a true statement or just a little "Tweak"?
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