The Ethical Practice of Law

Read the full article and more than 2900 posts at https://zalma.com/blog and For Mr. Zalma’s other insurance books go to https://zalma.com/blog/insurance-claims-library/.

This article is adapted from my new book The Little Book on Ethics for the American Lawyer now Available as a Kindle book here and Available as a paperback here. 

The Lawyer Must be Ethical

The practice of law demands more than knowledge of statutory and case law. It requires more than technical proficiency in the nuts and bolts of legal practice. A lawyer is an officer of the legal system whose conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.

The practice of law requires that every lawyer treat each client, each adversary, and the court ethically and in good faith.

The practice of law is different from other professions because it requires that the lawyer act for his or her client, not him or herself, only if the actions for the client are ethical and in good faith.

What is Ethical Behavior?

The concept of ethical behavior refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues, all of which are essential to the lawyer.

Ethics, for example, refers to those standards that impose the reasonable obligations to refrain from murder, rape, theft, assault, slander, and fraud.  Ethical standards also include those that imply virtues of honesty, compassion, and loyalty.

There are rights presumed to exist such as those described in the Declaration of Independence submitted to King George of England in 1776 that held: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness.” The unalienable rights also include the right to life, the right to freedom from injury, and the right to liberty.  Such standards are adequate standards of ethics because they are supported by consistent and well-founded reasons.

Ethics also refers to the study and development of one’s standards of conduct. Feelings, laws, and social norms can deviate from what is ethical.  It is necessary, especially to people involved in the practice of law, to constantly examine one’s standards to ensure that they are reasonable and well-founded conduct that ethically treats a client, an adversary, and the court with the utmost good faith.

Ethics also requires the continuous effort of studying our own moral beliefs and our moral conduct. The ethical lawyer must strive to ensure that we, and the institutions we help to shape, live up to standards that are reasonable and solidly-based. To those in the practice of law – are compelled to deal ethically in everything the lawyer does in the practice of law. The practice of law, and every lawyer who practices law, is expected to develop a moral code of conduct that strives to ensure that every person involved in the practice of law, and the representation of the lawyer’s clients, will shape and live up to standards that are solidly based in the good faith handling of legal representation, whether as a litigator or a legal consultant.

There is no single answer to the question of what is ethical behavior by a lawyer. Ethical behavior is subjective and fact dependent. Philosophers over the centuries have created methods to act ethically.

The concepts defining ethical behavior are different and unlimited. Philosophers have struggled with the concept of ethics for more than three eons. Few agree on which to use. Some apply various concepts depending on the situation. Those in the practice of law must avoid situational ethics. It should not, and will not, apply in the practice of law whose only ethical mandate should be the need to treat clients, adversaries and the courts honestly, fairly and with good faith.

The Unethical Lawyer as a Criminal

When a lawyer acts criminally he or she acts unethically, violates criminal statutes and with moral turpitude that lawyer loses his or her right to practice law when they get out of jail. One example is Gottlieb v. Superior Court, 283 Cal.Rptr. 771, 232 Cal.App.3d 804 (Cal. App., 1991).

I knew Kenneth Gottlieb when I was a young adjuster and as a defense lawyer as a person who was suspected of acting as a serious fraud perpetrator. After many years defrauding insurers Gottlieb was eventually arrested.

Gotlieb, as the Court of Appeal noted, delayed trial after his arrest for multiple years. The prosecution and the court finally insisted he submit to trial. He then caused his lawyers to file a petition for a mandate stopping the trial. It was not successful and Gottlieb refiled his mandate petition. Gottlieb, a felony defendant asked the Court of Appeal to reconsider his challenge to the denial of his speedy trial motion.

Because the court viewed Gottlieb’s first petition to be totally without merit, and viewed the refiling of the petition with one additional exhibit to be unwarranted, it issued an order directing defendant’s appellate counsel, Trope and Trope, to show cause why monetary sanctions should not be imposed against it.

The premise of defendant’s claim of denial of a speedy trial is that a delay of 10 years from his indictment to commencement of trial (together with the attendant stigma and stress of long-pending charges) constitutes a denial of his speedy trial rights even though he caused or consented to all delay and never asserted objection to delay prior to filing his motion to dismiss.

The new petition was denied as frivolous and monetary sanctions were imposed against appellate counsel.

The facts that brought about this final attempt to stop an actual trial started in September 1981 when Gottlieb, an attorney, was indicted by a grand jury on 92 felony counts. The various counts alleged a conspiracy to commit numerous acts of insurance fraud, forgery, grand theft, and attempted grand theft against numerous insurance carriers and claimants.

On May 2, 1991, nearly 10 years after defendant was indicted and only 13 days before a May 15 trial date, defendant filed a motion to dismiss for denial of his state and federal speedy trial rights.

The delay was not claimed to have prejudiced the defense case. Defendant was at all times at liberty and, from my personal experience, probably continuing his work as counsel to, as well as a party to, insurance fraud.

The evidence presented by Gottlieb showed that all delay was either caused by defense motions for continuances, joint motions for continuances, vacated trial dates, defense motions to set aside the information (1985) and to recuse the District Attorney (1991), and the addition of a second private defense counsel, Trope and Trope (1991). None of Gottlieb’s exhibits suggested that the prosecution occasioned any delay, let alone delay without good cause. The court docket sheets showed that these continuances were upon stipulation by the parties.

Three days after denial of the first petition, defendant refiled.

The Court of Appeal concluded that there was no possible merit to the defense theory that the criminal justice system must engage in self-flagellation by dismissing serious prosecutions because a defendant who has claimed good cause for and stipulated to a long series of delays later claims the trial court and prosecution denied him a speedy trial by granting the delays he sought.

Defendant Gottlieb actively caused the 10-year delay and clearly did not want to go to trial. Here, there is more than the mere acquiescence of defendant in delay occasioned by the prosecution. Defendant Gottlieb was at all times represented by privately retained counsel and was promptly advised of his indictment. Defendant, an attorney, caused or consented to all the delays in his prosecution. He is charged with felony offenses involving moral turpitude. If convicted, his state bar license would certainly be revoked or suspended for a considerable time. During the pendency of the prosecution, he continues his ability to earn his livelihood practicing law.

That Gottlieb continued to make serious money while under indictment was confirmed by the fact that his moving papers included a declaration of attorney Alan M. Dershowitz, listed as “of Counsel” on the mandate petitions. This declaration states in the most general terms that defendant’s federal speedy trial contention is a legitimate argument because the state bears primary responsibility for bringing defendants to prompt trial. The declaration was, at most, a statement of conclusion and a most general treatment of the issue.

When Gottlieb’s counsel sought immediate and special attention from the court by filing a request for a stay two days prior to trial, the court expected counsel not to hinder its screening of the emergency petition by failing to provide apparently available exhibits or information. The court considered the total lack of merit of the first petition, defendant’s pattern of delay, and the fact the petitioner requested an immediate stay of an imminent May 15 trial.

We are mindful that criminal defense attorneys are charged with the duty of asserting, on behalf of their clients, all theories having possible merit. But this duty does not validate or excuse petitions for extraordinary writ review that are patently frivolous, ignore clearly controlling law, and are filed at such time and in such manner as to require the court to conclude that the petition was filed with the intent to delay and harass the courts and the prosecution.

The petition for writ of mandate filed May 15, 1991, was denied.

Gottlieb went to trial and was convicted shortly after the decision was made to deny his writ of mandate.

He served a short period of time in jail, voluntarily gave up his license to practice law, and shortly thereafter went into business as a “law clerk” and procurer of fraudulent auto accident and insurance claims business for other lawyers.

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Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

For Mr. Zalma’s other insurance books go to https://zalma.com/blog/insurance-claims-library/