The Curse of the Virtuous LawyerA CLE Ethics Seminar Developed By

Jack Marshall & ProEthics, Ltd. for theNational Alcohol Beverage Control Association

March 10, 2009 - Arlington, Virginia

Warm-Up Hypothetical:

"TheInvitation"

Question 1: What should Frieda do about Boss Hogg's grog?

1. She can't do anything. The informationshe got from Sleazy is confidential.

2. She should ask Sleazy for permission to divulge the information to the board.

3. She should resign from the control board.4. She has a duty to investigate the truth of

Sleazy's allegations.5. I have another answer.

Question 2: Can Frieda take on Gogmagog's as a client?

1. Only if she quits the board.

2. If she recuses herself from any decisions

involving her client, sure.

3. No, it would create "the appearance of impropriety."

4. She could, but I sure wouldn't

5. I have another answer.

Question 3: What should Frieda do about Sleazy's "gift?"

1. Tell Chita to give back the gift.

2. Nothing. The gift has nothing to do with her.

3. Report it.

4. Recuse herself from any decisions regarding

Gogmagog's Grog or its competitors.

5. I have another answer.

The Lawyer’s CurseEven the lawyer pure of heart

Who says his prayers at night..May run afoul of the ethics rules

When the deadline’s getting tight!When the client is demandingOr a fine cause risks defeat

If a short-cut is enticingAnd the fee’s especially sweet.

Silver Bullets and Wolfsbane For

The Curse of the Virtuous Lawyer

Read the Rules! Don't mistake Compliance with Ethics! Be aware of the changes in the culture of the law. Learn from the mistakes of others. Be aware of simultaneous loyalties. Don't underestimate the power of bias. Watch out for contrived ignorance. Control what you hear. Become technologically savvy. Make sure your ethics alarms are in working order. Take care of your mental, physical, and emotional health.

The Compliance/Ethics Problem

Objective: Externally imposed Encourages responsiblebehavior

Standards: Prevent military or Self-imposed criminal misconduct

Motivation: Avoid penalties or Self-actualization and punishment improvement of self and

society

Reinforcements: Legally-driven; Principle-driven;emphasis on emphasis on on personalrestrictions responsibility

"What youcan't do"

"What youshould do"

The Three Circles

Recognizing ThatEthical Practice Is

More Than JustFollowing Rules

The Big CircleEthical Environment: Influence, and ExpectationsConstituency: Society, community, family, friendsComponents: Traditions, religion, ethical systems, customsReciprocityAbsolutismUtilitarianism

The Compliance CircleConstituency: The legal professionComponents: The Code, court opinions, legal ethics opinions

The Core CircleConstituency: YouComponents: Personal values, beliefs, principles, self-esteem, courage

Hypothetical:

"The Once and

Future Client"

Question: What is Justin's

most ethical course?

1. He should say nothing. Everything he learned from Tonyis confidential.

2. He should recuse himself from the matter. This is potentiallyadverse to a former client on a "related matter."

3. He should tip off the Commissioner anonymously.

4. He should find another job.

5. Something else.

1. No matter how perfect, proven, or complete a system, rule, or

principle, it will inevitably generate anomalies at its margins that

do not fit within its boundaries.2. Efforts to enlarge or change the system to allow for anomalies will

only render the system less integral and result in more anomalies.3. Thus, all systems are inherently incomplete. Trying to apply the

existing system to the anomalies will yield an unsatisfactory result.

Attempting to change the system to apply to anomalies only makes

the problem worse.

What does the Incompleteness Theorem mean for lawyers?

It means that the more specifically the ethics rules are written, the more likely it is that there will be

circumstances that require an attorney to consider conduct contrary to the rules.

Accepting Gödel:

The Incompleteness

Theorem

Exercise: What is "Fair" in Negotiation?

(A) Tactic: Fair or Unfair?

(B) Tactic: Fair or Unfair?

(C) Tactic: Fair or Unfair?

Dark Tales:When the Curse

Isn't Treated in Time!

The 2008 Legal EthicsTrain Wreck Of the Year

Part A

Hogan & Klunk, LLP2000 North River Place

Suite 2300Chicago, Illinois 30303-2220

312-555-1212www.hoklunk.com

Question: Is this consistent withthe ethics rules?

Part BQuestion: Which attorneys have violated the ethics rules?

1. Sleazy.2. The City's attorneys.3. The Mayor's attorneys.4. All of them.5. None of them.

A Legal Ethics

Decision-Making Model

A Legal Ethics Decision-Making

Guide1. Define the problem.2. Analyze the options.3. Evaluate the consequences.4. Decide the course.5. Implement the decision.6. Monitor, modify, learn.