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Legal Ethics

Dancing Close to the Ethical Line

Since I moved to the country after spending most of my life in the big city, I fashion myself as something of a country type. I drive a pick-up truck and I listen to country music. So, it should come as no surprise that I am drawing inspiration for this story from Johnny Cash who proudly proclaimed that “I Walk the Line.” 

I don’t really recall which line Johnny Cash was walking, but for me it was the Ethical Line.

On the one hand, I take great pride in the fact that throughout the whole of my forty-year career practicing law, I strived to fully comply with each and every one of the ethical standards of our profession, and although I will not claim to have never slipped up, I think I did pretty well.

What I do find interesting now that I am retired and reflecting on my career in law, is how often I thought that it was part of my job and entirely appropriate to see just how close I could come to the line without crossing over it.

One thing that I occasionally did is write to the other side of a dispute and offer settlement terms that included a confidentiality agreement in circumstances where the issue of confidentiality had never been raised. Since it would have been unethical to try to extort a settlement by threatening to disclose confidential information, I tried to send the subtle hint that it was in the interest of the other side to settle with my client to avoid harmful disclosure.

There were other times when I used ‘clever’ language to suggest that the authorities might be interested in what was going on while stopping well short of threatening to call in the cops if we did not get what we want, which would have been completely unethical and might constitute criminal extortion.

It is interesting to think about the ‘all or nothing’ approach that lawyers take to complying with the ethical standards of the profession. Most of us are incredibly careful not to cross any of the bright lines that have been laid down by our regulators. But approaching them, finding loopholes, skirting around them – all of that is okay, provided that we are doing so to advance the interests of our clients.

It does not seem to be part of our culture to be sure that we are always playing well within the lines and we take little pride in never coming close to them.

Sometimes I think that life would have been simpler if I had been a Lineman for the County.

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