Executive Director's Report
Within the Bounds of Law, Truth and Ethics by Willial/1 A. Martill When I was the senior lawyer in various Air Force legal offices new lawyers and members of the commander's staff would discuss the role of a defense counsel with me. The lawyers sought to reconcile being a military officer with resisting prosecutions and discharge actions brought in
the name of the
nited States. Lay senior officers had dif-
ficulty understanding how an officer could vigorously defend someone the commander seemed to want to put in jailor fire. My basic response was that when a lawyer is assigned to defend an individual then that Judge Advocates duty to the Air Force is to make the system work by providing the best defense possible within (he bounds of law. truth and ethics. Personally I found no conflict between the profession of law and the profession of arms. These comments about lawyers acting "within the bounds of law. truth and ethics" were my paraphrase of the ideals expressed in Canons 5 and 15 of the American Bar Association Canons of Professional Ethics (6 Ark. L. Rev. 404 (1952)) which existed when I was in law school. Cannon 15 uses the phrase "within....the bounds of the law." The term is repeated several times in the next code (Ethical Consideration Cannon 7 of the Arkansas Code of Professional Responsibility, 33 Ark. L. Rev. 610. 686 (1979)). It disappears in the Model Rules of Professional Responsibility, effective January I. 1986. (Rules Volume, A.C.A. Page 919). but the Preamble contains the comments: A lawyer's conduct should conform to the requirements of the law.. :' and: "virtually all difficult ethical problems arise from connict between a lawyer's responsibilities to clients. to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living:' Woven throughout all these canons and codes is the requirement lawyers be truthful and candid. These are minimum obligations. Being licensed professionals requires us. as Michael Josephson. a speaker at our 1992 and 1996 Annual Meetings, tells us, to practice ethics beyond the code. While each of the terms--Iaw, truth. ethics--encompass somewhat different concepts. they are intertwined and in thinking about them I see a natural progression with each requiring adherence to ever higher standards. --And the combination is but a threshold which all of us should scrupulously observe. Law and truth are more capable of being measured objectively than is ethics. An action or statement may be lawful and truthful and not be ethical. Josephson reminded us: "Ethics requires us to give up the idea that an act is proper simply because it is permissible or that something is ethical so long as it is legal:' Sol Linowitz in his excellent book. Tlte Betrayed Profession. quotes Elihu Root as
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Summrr 1996
telling a client: "The law lets you do it. but don·t...I(s a rotten thing to do." We must abhor the rotten. take seriously our permissible advisor duty under Rule 2.1 to refer ·'... 10 other considerations such as moral. economic. social and political factors. that may be relevant to the client's situation:' and in our lawyer role be. as Shakespeare in Hamlet had Polonius advising his son: '"This above all: to thine own self be true," If we are to be the type lawyers and the type human beings we ought to be, our ethical antenna must always be alluned to distinguish what is or is not moral, proper. fair and honorable. As lawyers we arc not called on to do unethical things to advance our client's cause. They are seeking a win,
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"We represent clients,' we advise clients; we do not belong to clients. Zealous repre-
an advantage, not necessarily the jllst or ethical result. We represent clients; we advise clients; we do not belong to sentation is not license clients. Zealous representation is not license to do what is wrong. what is to do what is wrong..." unethical, what is dishonorable. Josephson in his slides at the 1996 Annual Meeting had a multitude of statements about ethics being beyond something than can be specifically required by any code or law. Among the many thoughts worth commilling to memory were: "Ethics is about actions--It is about what we do:' "Ethics is about doing what is right," "An ethical person often chooses to do more than the law requires and less than the law allows:' "Ethics is often about self-restraint: Not doing what you have the POWER to do: ot doing what you have the RIGHT to do: NOl doing what you WANT to do:· ··Ethics is about right and wrong and how an honorable person should behave:' "Ethics is about character and courage and how we meet the challenge when doing the right thing will cost marc than we want to pay:' "The real test of our ethical integrity comes when we believe that doing the right thing is not in our self interest:' On renection fony years after I first aniculmed my thoughts about the role of a defense counsel I believe more than ever: Always as lawyers we l11ust make sure everything we do is well within the bounds of law, truth and ethics. --And the most demanding of these is ethics,