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Ethics Plus Courage Equals Exemplary Lawyers

Posted On June 27, 2016 by Jennifer Bryon Owen

Claiming the number one spot in the American Film Institute’s “Top 50 Movie Heroes of All Time” is a lawyer — Atticus Finch. That is, Atticus Finch as played by Gregory Peck in the film version of To Kill a Mockingbird.

Although possibly enhanced by the movie version, it was the book that influenced untold numbers to enter the legal profession. The aura cast by the fictional Atticus — a commitment to justice, especially for the downtrodden; ethical behavior; wise counsel; consistent example; and courage — provided inspiration worthy of a career.

6-27-16-ethics-iconEven though last year’s release of a second book, Go Set a Watchman, reveals an unsavory side of the Atticus who has inhabited the literary world for almost 60 years, his reputation seems unsullied. He remains an example of ethical conduct. While attorneys may be talking about the controversy surrounding the new book, they don’t seem to have it in their nightstand reading-stack.Christine Koehler - Centerpiece

Christine Koehler (J.D. ’95), who has read To Kill a Mockingbird numerous times, said the book helped her decide she wanted to be a lawyer for the underdog: a criminal defense attorney who goes up against great odds. Along with a partner, Koehler has a firm in Gwinnett County, Georgia. A significant part of her practice stems from the eight years she served on the state bar’s investigative panel, with one of those years as its chair.

“I am no longer on the panel, but I represent lawyers who are accused of ethics violations by the state bar or who have complaints filed against them,” Koehler said.

Her cases include everything from lack of diligence on a case, to dishonesty to the tribunal, to violation of escrow accounts by mingling personal funds with escrow funds. She has represented lawyers who have disgruntled clients. In many cases, those unhappy clients are using social media to air their grievances.

In Koehler’s view, the impact of social media can create huge ethical issues, both for attorneys and clients. For example, an attorney runs the risk of breaching confidentiality when using social media as a self-promotion tool.

“It’s tempting to post about our successes and interesting cases we’ve had, especially if you’re in private practice and part of your job is a little bit of self-promotion,” Koehler said. “One of the hardest things to do is strike a balance between letting folks know you do a good job and maintaining the privacy or confidences of your client.”

Conversely, when a client uses social media to let the public know they’re dissatisfied with their attorney, it is natural for the attorney to want to defend the handling of the case.

“Again,” said Koehler, “you have to be careful to do that in a way that doesn’t violate bar rules or compromise the client’s privacy.” She recommends that attorneys not respond directly to a negative posting but try, instead, to make numerous positive ones available.

Before social media, controlling client communication with the public was easier because the attorney was the go-between in releasing news.

“Now they control their own exposure,” Koehler said. “It’s important early on to make sure you’re both on the same page about posting information about the case on social media. Ultimately, it is the client’s decision, but if they are doing it in my cases, usually it is against legal advice.”

Noting how tight-knit the legal community can be, Koehler believes that with modern technology, the discovery of ex parte communications, in particular those between judges and prosecutors, have come to light, and significant fall-out from that is being seen.

“It is important to remember how inappropriate a casual conversation can become when one of the parties isn’t present,” she said. “I don’t know that the ex parte conversations are happening more frequently; in fact, I doubt it. But the discovery of them is happening more frequently, and we are seeing other members of the legal community take it very seriously.

“I remind folks that they are working within a community, and it is important to try to get along with your peers, but it cannot be at the expense of the client and of the bar rules,” Koehler continued. “It’s hard to remember sometimes, especially if you are going back with that same prosecutor and judge on the next case.”

Similarly, the client must remain the sole focus of accountability courts. Previously, a team environment designed for the benefit of the client did not exist.

“Good and bad come with accountability courts,” Koehler said. “It’s good that everybody is working toward a common goal. It’s bad in that sometimes folks forget they remain an advocate for the defendant.”

Koehler foresees the ethics of government attorneys and prosecutors coming under a  microscope, a move aided by media coverage of exonerations of people wrongly convicted. “There’s been a shift,” she said. “People want to know if this is a win-at-all-costs prosecutor. Behavior of unethical prosecutors will not be ignored.”

Change within the system will come much quicker if those on the inside take action, Koehler said.

“Nobody wants to file that unpopular motion or file to recuse that judge, but sometimes that’s what is appropriate,” said Koehler. “You’re sick to your stomach doing it, but you do it.”

A quote from Atticus Finch in Mockingbird helps her through the difficult times: “I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

A shrinking sense of community

Mockingbird didn’t directly affect the circuitous route Kelli Wolk (J.D. ’99) took to becoming a Cobb County, Georgia, probate judge. But she is aware of how the portrayal of Atticus Finch in Mockingbird — as an attorney trying to make the world a better place — has impacted lawyers.Judge Kelli Wolk - Centerpiece

“It is a pretty selfless and worthwhile intention that motivates some people to go to law school,” Wolk said. “The guy doing right and being a hero to his family, even though it may not be the easiest thing, is a really appealing theme.”

This may have been easier, she thinks, in Atticus’ day in a small town where there were only a few attorneys and everyone knew everyone else. Today’s practice of law is not as intimate in many places.

“It’s a different atmosphere when you have a thousand practicing attorneys in Cobb County, most of whom you don’t know,” Wolk said. “You’re not going to have to face those same people and own up to your questionable behavior.”

While skirting edges and pushing limits are no less acceptable, there is a little less day-to-day accountability. The subtlety of doing the right thing because it is the right thing to do for your community is getting lost, she said.

“It’s all about the chair,” Wolk said, illustrating her point with a story. In the 1800s, a person living in the “little house on the prairie” built a chair that was likely to be used by someone they knew. Today, a person building a chair is likely making it for someone they don’t know, so the builder is less invested in constructing a quality chair.

“As the world gets less interconnected, every chair gets built differently,” Wolk said. “If anybody is even in the slightest way cutting their social responsibility, the snowball effect means that each chip adds up to a pretty big pile of disregard at the end.”

It can be difficult for lawyers to “do the right thing, the noble thing” as Mockingbird illustrated, she said. But an attorney’s partners, support staff and their families are all impacted if he or she does something unethical. The possibility of future financial ruin looms if the client base dwindles because the firm’s reputation is tarnished, Wolk said.

Ethics in probate generally focus on confidentiality and discerning, in family situations, who is the actual client, made more difficult, again, by today’s lack of intimacy. People once knew their neighbors; today, children fly in, sign papers and leave. Probate attorneys have to balance legitimate concerns of the client with the rules of the court, and perhaps most important to Wolk, explain to clients why accomplishing their goals may not be in their best interest. Then, there’s the constant reminder to clients about venting through social media.

“Every family is unique in the way that things manifest themselves,” Wolk said, “but the lawyer’s job in terms of getting information, making the objective decision, explaining it to their client, laying out a clear picture of what is going on to opposing counsel and presenting it, ethically, to the court is pretty solidly what it has been for centuries.”

Atticus as an exemplar

Clark Cunningham, professor and W. Lee Burge Chair of Law and Ethics, said he can’t think of any other book that comes close to being as influential as To Kill a Mockingbird in leading people to become lawyers. Atticus Finch, he notes, provides a stellar example of courage and ethical behavior.

At his previous law school, one of Cunningham’s students wrote a thought-provoking paper that challenged his educators for not providing examples of good lawyers. Partly in response to that paper, Cunningham designed a course, “Professional Responsibility: Heroes and Villains,” that is now taught under the title “The Client Relationship.”

“The way I previously taught the required professional responsibility course, and the way most people would, was almost certain to make students cynical, because the only lawyers that students encountered in reading cases were those who were incompetent or getting disbarred or sued for malpractice,” Cunningham said.

Cunningham also wanted to instill more than just the rules of the bar in his students by featuring positive role models. Exemplary lawyers are not just the ones who win cases, he said. They are the ones who make ethical, client-focused decisions that often require courage.

During the more than 20 years he has been teaching this course, he’s found that combining case studies with role-play is effective in helping future attorneys enter the field in a more positive way.

“I found it better for them to learn firsthand through simulations, such as a meeting with a client where they have to deal with such things as wondering if the client is telling the truth, or having to advise a client on whether or not to settle a case,” Cunningham said.

It’s important to remain client-focused and not betray trust, Cunningham said. “What I love about being a lawyer, and what I want to convey to students about what is best about being a lawyer, is having a client,” Cunningham said. “Typically, a complete stranger comes to you with a problem. It is stressful to them, important to them. They will tell you things they would tell only a priest. They do this because they believe you will act in their interest and they can completely trust you. That’s an extraordinary job to have.

“To be able to be there for someone and to use your intellect, your energy, your training and the wonderful world of law to help them through a difficult time is just a great job, a great way to live,” he continued.

Georgia State Law’s expansion of clinical work for students during the last 10 to 15 years is a huge factor in helping students transition from a pupil to a professional who grasps what it means to be client-focused. Understanding the ethical issues facing attorneys is part of the clinical work.

Cunningham advocates that students’ entire law school experience be designed as a guided path toward ethical legal representation. His work with the National Institute for Teaching Ethics and Professionalism, which is housed at Georgia State Law, provides a forum for ideas and methods for best practices in reaching these goals.

Cunningham is writing a book, Being a Lawyer, Becoming a Hero, that features lawyers who are positive role models.

“These lawyers responded to human need,” he said. “A sense of duty and compassion becomes the foundation, and out of that comes the courage. I think that is the story of Atticus Finch.”

He notes that Atticus’ job description did not require him to sit outside the jail, putting himself between his client and the townsmen. Instead, his professional role put him in harm’s way, in that representing an unpopular client meant Atticus might lose clients and garner criticism.

“We don’t remember Atticus because he was a skillful courtroom litigator,” said Cunningham. “We remember him for his bravery, his kindness, and I would say, for his deep morality.”

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