I’m not going to spin this. My conviction that the web hoax engineered by trial lawyer/blogger Eric Turkewitz violated the legal ethics rules was the product of a toxic mix of factors, prime among then being that I didn’t review my own files. When I finally, after nearly two days of answering complaints when I should have been hitting the books, checked the Rules of an ethics bellweather state that I often work in but had not for longer than usual, I read this:
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the
lawyer’s fitness to practice law;
This is an unusual version of Model Rule 8.4; indeed, the only other state to have adopted it (I think—I am no longer sure of much) is Wyoming. Yet it is a very useful variation of the Model Rule, because it eliminates all ambiguity about whether “dishonesty, fraud, deceit or misrepresentation” is meant to be as sweeping as it sounds. This formulation makes it clear that non-legal practice violations are covered, but that they have to reflect adversely on the lawyer’s fitness to practice law to qualify.
I had been wallowing in obscure clues from other jurisdictions–Tennessee, for example, which has the ABA wording but an odd Comment that begins…
 Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law…
This could be taken to mean that all such conduct reflects adversely on fitness. The problem is, I don’t believe that, and I don’t believe that Tennessee means that.
The 8.4 version that I found was from…Virginia. Where I live. Where I have done more ethics CLE than anywhere else, beginning before the state even adopted the Model Rules format. Seeing this, two conclusions were unavoidable:
1. This is the predominant way jurisdictions think about 8.4. No state has rejected Virginia’s approach, and several have referenced it in Legal Ethics Opinions on the topic of what kind of non-legal practice-related conduct is covered by the Rules—-not subject to discipline, as I was arguing the past two days, but covered at all. The D.C. Bar has such an LEO, number 323, from 2004. I had a copy on file. The District of Columbia, where I’m a member of the bar.
2. I had made a big and inexcusable mistake, and compounded it by acting like the King of the Jerkwads.
Actually, I made about six big mistakes.
I object to web hoaxes of all kinds, at any time. I think, in this day and age, they are irresponsible. The intelligent way to make that point persuasively is with a really harmful, malicious web hoax. I decided to demonstrate my absolutism on this issue by intentionally picking a relatively innocuous web hoax…on April Fool’s Day, no less.
I picked Eric’s hoax, moreover, for another bad reason: I was rubbed the wrong way by his post criticizing the New York Times for falling for it. But that’s not ethics, that’s style. I let it warp my judgment.
I could…and should… have written the ethical commentary without referencing legal ethics at all. Here I was derailed by my own passion for an aspirational principle: I believe that lawyers should be seen as more honest, not less, than non-lawyers, and I think the Rules should say so. I believe this so strongly that I managed to talk myself into believing the Rules DO say so. But when I look over my file of lawyers disciplined or even criticized for non-law related conduct, the list contains nothing within a mile of Eric’s press release in terms of innocence. The closest I could find was a post by a lawyer on a legal ethics mailing list claiming that Ann Coulter should be reported to authorities for joking that “someone should poison Justice Stevens’ crème brulee.” In my file, this was accompanied by another post detailing why this was an absurd claim.
So, with incomplete disregard for my accumulated research and my prior positions, I wrote that Eric’s fiction was an ethics Rules violation. Then I compounded the blunder by focusing on the counter-arguments initially chosen by Eric, Carolyn Elephant, and Scott Greenfield, which were more emotional and abusive than analytical, rather than considering whether they had something to be emotional and abusive about. It was a good platform to write about how lawyers and others resort to rationalizations, and I took the bait…except that, rationalizations or no, they were on the right side of the key issue. This was not an ethics rules violation. I should have known that. I should have backed off, rather than arguing about it.
All I can do, at this point, is apologize, and learn. Or re-learn, because I did not follow my own best practices in this case. The blog is called Ethics Alarms, and it is about priming oneself to be ethically sensitive at the earliest possible stages of any situation. Mine were, for a host of reasons, down. They should have rung loudly when I:
- realized that I was working under too many deadlines to properly research and think through a potential post.
- found myself being driven by emotion rather than reason
- contemplated accusing a lawyer of something that I would not like to be accused of myself
- found myself writing responses in defensiveness and annoyance rather than beginning by respecting the commenter and taking time to think carefully about what I was responding to
- forgetting a lesson I have had to re-learn many times in my life: when everyone is telling you that you are an asshole, it is usually is because you are acting like one.
The swift kick that got my alarms ringing all at once were my own words in response to my least favorite participant in the thread, who asked if it was just possible that I was wrong. My snap answer was, “Of course I could be wrong!” And, just like that, I realized that I had better find out if I was.
I’m not crazy about having to go on my own blog and announce that I have been careless, obtuse and unfair. Before I got into the ethics field, I don’t think I would have done it. Now, I really have no choice, because this is what I teach others to do when they do something wrong. It’s a whole lot easier to say than to do…another lesson there for me. Many people have gotten the wrong impression of me through this episode, their first impression in most cases, and that’s devastating to accept. Still, it is my own fault, and only mine. If given a chance, I am confident that I can make amends, and be better after this fiasco than I was before it.
Thank you for your patience. And once again, Eric, I am very sorry.
Update 1: Clark Hoyt, the New York Times “public editor” (a.k.a. ombudsman), has written a column that references the web hoax in question, and makes the larger point, also applicable to me and Ethics Alarms, that extra vigilance and care is now essential when writing on “platforms where speed is everything and attitude sometimes trumps values like accuracy and restraint.” I am committing that sentence to memory, writing it 100 times on my blackboard, and perhaps stapling it to my forehead.
Update 2: Well, it is now April 17, nearly two full weeks after I posted this apology, and, incredibly, several bloggers are still attacking it and me for my original mistake. This, after the blogger/attorney whose hoax I criticized graciously accepted my apology as sincere and complete, which it was.
Much of the continuing venom seems to be based on the fact that the apology enumerated the reasons why I think I made the errors I did, and the critics appear to be under the misapprehension that I did this to exonerate myself or make excuses. This is neither fair nor true.
Ethics Alarms is intended to examine what is unethical conduct and why we all engage in it occasionally. I have an obligation to extract as many lessons from my own mistakes as I do from the conduct of others. When I note, for example, that time pressure contributed to my failing to properly research the issue under discussion, that is true, but it is no excuse, not in the least. Terrible mistakes are made under time pressure; I was just lucky that mine only unfairly described the ethics of a web hoax, because some mistakes, made for the same reason, kill people. The lesson and the error, however, is the same. It is irresponsible.
Other die-hard critics were infuriated that I ultimately deleted the posts that I had decided were unfair and erroneous, regarding this act as somehow cowardly or deceptive. I confess to not understanding their logic at all, if there is any. My objective on this site is to provide information, useful ethical analysis tools, and grist for productive debate, not to store misinformation, faulty analysis, and a permanent target for ill-motivated people to use to attack me personally. One indignant blogger demanded that “we” wanted to judge whether my characterization of the matter above was fair. Well, I think it is fair, and the individual I primarily apologized to seems to think it is too. That is enough for me.
The transparent unfairness of these relentless attackers is noteworthy. In the debate over my post, I was not the only one who made a careless and incorrect assertion. I was just the only one who apologized for it. Many stated, for example, that the Rules of Professional Conduct for lawyers only apply to the conduct of lawyers while engaged in the practice of law. This is wrong, and I showed that it was wrong; none ever acknowledged that I was correct, or that they were mistaken. Others made the classic error of asserting that the First Amendment makes all legal speech ethical, which anyone who knows the difference between law and ethics can figure out is dead wrong with just a minute of thought. Again, not one lawyer who claimed this acknowledged his mistake.
A couple of bloggers posted apparently considerate and supportive comments here in response to my apology, and then, once back in the cocoon of their own sites, continued to attack me in uncivil and personal terms. Nice. Res ipsa loquitur. Others wrongly claimed that in designating one act of a lawyer as unethical, I had intended to imply that the lawyer himself was unethical. That is not true, and is contrary to the philosophy of this blog, which holds that only the most extreme and egregious unethical conduct by an individual justifies such a general conclusion. These same critics, however, have adopted a general assessment of me because of one, admittedly stupid, mistake. That is unethical. It is a violation of the Golden Rule.
I know much of this goes with the territory. The immediate reaction to any criticism based on ethics is often a personal attack; I am used to it, though not to this degree and duration. I will, on occasion, make mistakes, just as I will be, rather more frequently, wrong. When I am either, and know it, I will acknowledge so, and if a particular person has been harmed or treated unfairly, I will apologize publicly and privately. I hope that, over time, Ethics Alarms attracts an audience that will understand that in trying to identify unethical (and ethical) conduct, I am attempting to lead people away from knee-jerk judgments, emotional reactions, bias, rationalizations and non-ethical distractions, toward some rough consensus about what kind of society we want to live in. Those who find all ethical judgments inherently offensive are welcome to their opinions, but frankly, I think they are part of the problem.
Other than the fact that it was unfair to Eric, the worst aspect of this mess was that it became about me, and Ethics Alarms is not supposed to be about me, though some refuse to believe that. It has been a distraction from the real work of the blog, and for that reason, I am closing Comments on this post with this Note. Those who really think a two-week-old-and-counting excessive blog post, since retracted, about an April Fool’s Day web hoax is still worth ranting about are free to continue, on their own sites.