For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
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<strong>Defense</strong> Ethics and Professionalism<br />
Seven Legal Sins<br />
Lessons from Mohandas Gandhi, Esq.<br />
By Winston N. Harless<br />
Mohandas Gandhi was a masterful wordsmith. He<br />
crafted succinct and powerfully instructive statements<br />
for those willing to listen and learn such as, “Live simply<br />
so others may simply live,” and “An eye for an eye<br />
makes the whole world go blind.” Given that Gandhi<br />
first attempted to champion civil rights while he was an<br />
expatriate lawyer in South Africa, lawyers might well<br />
consider the lessons that we may glean from his words.<br />
In one of his more expansive statements, Gandhi identified<br />
with distinct and efficient clarity the seven sins<br />
found in the world. Gandhi observed, “<strong>The</strong>re are seven<br />
sins in the world: Wealth without work, pleasure without<br />
conscience, knowledge without character, commerce<br />
without morality, science without humanity, worship<br />
without sacrifice, and politics without principle.” Similar<br />
to the dramatic style of that legendary filmmaker,<br />
Alfred Hitchcock—exposing danger in the most unlikely<br />
of places or situations—Gandhi exposes the dangers<br />
that lurk in otherwise commendable attributes or pursuits.<br />
With apologies to Gandhi, a practical translation<br />
or paraphrasing of these observations may disclose to<br />
lawyers at least seven legal sins that lurk in our world.<br />
In the legal arena, we might paraphrase Gandhi’s<br />
“wealth without work” best as “billing without work.”<br />
Billing time that does not accurately reflect actual work<br />
performed is unethical whether it takes form as inflating<br />
an estimate of time spent on a task, taking credit<br />
for work actually performed by a subordinate, or billing<br />
a client for tasks that the client might expect a lawyer<br />
to perform but which a lawyer never performed. In<br />
so doing, a lawyer not only cheats a client, but he or she<br />
also cheats that lawyer’s partners and co- workers, particularly<br />
if the lawyer’s firm bases compensation on<br />
performance related to originations and collections.<br />
Unfortunately, this problem has long existed and likely<br />
will persist, but ethical lawyers resist the temptation of<br />
this legal sin.<br />
We might paraphrase Gandhi’s “pleasure without<br />
conscience” best as “winning without conscience.”<br />
■■<br />
Winston N. Harless is a shareholder in Lewis, King, Krieg & Waldrop, P.C., who<br />
practices primarily from the firm’s Nashville, Tennessee, office. He has practiced<br />
mainly in the areas of commercial litigation, insurance coverage and defense, professional<br />
liability, and education law. He has served on the <strong>DRI</strong> Lawyers’ Professionalism<br />
and Ethics Committee Steering Committee for six years, including as its<br />
publications chair for the last three years, and he currently serves as the committee<br />
vice chair. Ethics, continued on page<br />
pro bono, become active in nonprofit organizations, vol-<br />
68<br />
62 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong><br />
Whether improperly withholding damaging information<br />
from an opponent, purposely failing to disclose the<br />
holding of an obscure but clearly dispositive case to a<br />
court, improperly coaching a client during a break during<br />
a deposition or a trial, or purposely presenting facts<br />
not admitted as evidence during a final argument, the<br />
win-at-all-costs mentality has certainly tainted the noble<br />
profession of law.<br />
Similar to the twist of Gandhi’s second “sin,” we<br />
might paraphrase his “knowledge without character”<br />
best as “advocacy without character.” In this age when<br />
so many take the position that your character doesn’t<br />
matter as long as you perform, we lawyers would serve<br />
ourselves well to remember one of the dreams of Gandhi<br />
acolyte Martin Luther King Jr. He expressed the hope<br />
that we would one day “live in a nation where” we would<br />
properly judge people by “the content of their character.”<br />
Although King exhorted us to judge based on character<br />
rather than the color of someone’s skin, exemplifying<br />
good character is a national ideal. In many ways, a<br />
lawyer is a public figure and emissary of the profession<br />
and, as such, should act accordingly to exemplify good<br />
character.<br />
Gandhi’s fourth sin—“commerce without morality”—doesn’t<br />
need paraphrasing to hold true in the<br />
legal world. When a lawyer’s primary question or concern<br />
about a case is, “How can I work this file to create<br />
more fees,” rather than, “What can I do to resolve this<br />
case most efficiently and effectively for the benefit of my<br />
client,” then Gandhi’s observation rings true.<br />
Although a bit of a stretch, we might liken Gandhi’s<br />
fifth sin of “science without humanity” to “technical<br />
expertise without humanity.” Lawyers pride themselves<br />
on their practiced skills, whether writing expertise, witness<br />
interrogation, or oral presentation in court. <strong>The</strong>se<br />
skills are appropriate to desire and to achieve. Nonetheless,<br />
who among us has not witnessed these same “skills”<br />
used to vent personal attacks, convey professional disrespect,<br />
or demonstrate unprofessional conduct toward<br />
a witness, an opposing party, or an opposing attorney<br />
Gandhi clearly exposes hypocrisy through his sin of<br />
“worship without sacrifice.” In the legal realm, lawyers<br />
must not accept the personal benefits and rewards of<br />
their profession without giving service to others—the<br />
legal sin of “prestige without service.” Whether we work