I can't talk about a lot of things right now so here's a post on the intersection of legal ethics and morals

“Young lady, where have you been?”

I logged in to my blogging platform and realized it has been nearly two months since I’ve written anything. It has been an incredibly busy two months, and there are a lot of things I cannot blog about right now. (If you have missed my writing, I’ve got a piece on ephemeral messaging apps in this month’s Wisconsin Lawyer. I assume my editor would not let me call it “Getting Hegsethed” so I did not try. )

One thing I can talk about is a thought experiment I’ve entertained for several years, and that I talked about in a Facebook thread last night: When do legal ethics and personal morality collide? “Legal ethics” is a term of art, after all—it refers to the specific rules and guardrails by which we practice law and manage our professions. It’s not what you learn from your parents, your religion, or a college philosophy class. “Morals,” on the other hand, are personal, and may include “ethics” as that term is generally understood. So where do these things overlap, and where don’t they?

Many people believe that following rules, regardless of what they are, is a moral obligation in itself. Maybe our D&D friends would call this a “lawful neutral” worldview (though I am open to discussion on that). But putting that aside, there are some professional ethics rules that don't really implicate morals at all. It is not immoral, in a vacuum, to commingle client and personal funds, so long as you keep track of everything. It is just against the ethical rules to do so. (Analogize that to a “no hats” rule—it is not immoral to wear a hat in class or in court or anywhere else that safety isn’t implicated; it’s just against the rules.) And I would argue that it's not immoral to make a mistake, in a negligent sense (it might be another story if you shirk your responsibilities)--good people sometimes calendar something for Tuesday that was actually supposed to happen on Monday, and the difference between that being "oops I missed the tuna melt special at the diner" and "we missed a court deadline and are facing sanctions now" is basically luck.

Of course, quite a few ethical rules do implicate morals--almost to a person, people believe it is immoral to steal, lie, and take advantage of people. It is also unethical under the Rules.

Where it gets dicey is where following the ethical rules violates your personal morals--if representing a particular client or cause would offend you morally you may be obligated to say no (1.7(a)(2)), but what if you were the only lawyer around with certain expertise but you were conflicted out of helping someone and could not get a waiver? It might offend you morally to turn them down but under the professional rules, you must.

There can be a disconnect in other ways--prosecutors who personally believe drug crimes should not be crimes still have to prosecute drug crimes. Lawyers representing government bodies defend laws or policies they personally believe are bad. And defense lawyers have to defend people who have done objectively horrible things. And again, if something is too morally offensive to you for you to do an adequate job, you're supposed to say no, or withdraw, and if you find yourself doing that too often you may want to pick a different practice area. But withdrawal isn't always how it works in the real world (young associates, for instance, are supposed to say no but really feel they can't and they have few options to just leave), and I think lots of us have taken cases that just feel icky, where "icky" here is short of a repugnance that would require withdrawal. I find “icky” cases challenging, but I sometimes enjoy the challenge.

Nonspecific food for thought, while I can’t talk about specifics, I guess.