“As a lawyer you will be challenged and tempted to cut ethical corners,” San Diego Superior Court Judge Robert Trentacosta cautioned those who attended the Student Bar Association’s Second Annual Ethics Panel held at Thomas Jefferson School of Law on February 16. “But the most important thing you have when you stand before a judge is your credibility.”
The first conference held at the new TJSL campus was a lively and stimulating discussion, moderated by Professor Leah Christensen. In addition to Judge Trentacosta, Appeals Court Associate Justice Gilbert Nares joined the panel, along with criminal appellate attorney Charles Sevilla and TJSL Professor Claire Wright.
One of the questions Professor Christensen posed to the panel was: “What is the balance between zealously representing your client and following your own moral standards? Is there a gray area between lying and lawyering?”
“You cannot have justice if there is a lie,” said Justice Nares.” There is no excuse for lying.”
“If you lie to me, you lie to 153 of my closest friends,” said Judge Trentacosta, referring to his colleagues on the bench. “They will know you are a liar.”
Defense Attorney Sevilla told a story about a lawyer who asked a judge for a delay because her father had died. The judge decided to go to her Facebook page to check up on her and found newly posted photos of her partying and enjoying herself.
Judge Trentacosta spoke about how lawyers are ethically bound to employ “means consistent with the truth,” and gave this example of how an attorney can make an ethical argument he/she knows is at odds with a prior court decision: “Your honor, this runs counter to such and such a case, but I believe there is the possibility it is distinguishable.” The Judge added, “That’s what we want to hear from you.”
“In law school we teach students how to think, argue and analyze,” said Professor Wright. “But just because you can make an argument, doesn’t mean it is an ethical one.”
Professor Wright, who chairs the Ethics Committee at TJSL, talked about some ethical challenges she faced while in private practice. One involved a corporate client who wanted her to sign a letter that misrepresented the “approximate amount” of Customs duties the client owed by millions of dollars when she had earlier advised the client that its Customs duty exposure alone could be ten times that.
“I refused to sign it, but you will sometimes deal with some very tough, very smart clients who will pressure you to do unethical things like this.”
Of course, appeals court judges and defense attorneys are often asked about the way they handle cases involving clients who are clearly guilty of the crime they are charged with.
Justice Nares said, “In cases where there is overwhelming evidence of guilt and a conviction, but a clear error by the trial court, the constitutional requirement that they get a fair trial must be met. I need to be able to sleep at night.”
Charles Sevilla said the fact that so many suspects plead guilty in criminal cases shows that defense attorneys often defend guilty parties. “My job is to defend my client as well as I can. I will represent them vigorously, even if they are guilty.”
But, he added, that if a lawyer finds his or herself in a situation where they aren’t sure if a course of action is ethical or not, then they should take a step back and pick up the phone. “Call a colleague and discuss it, or you can call the state bar hotline.”
The San Diego County Bar Association also has an ethics hotline, said Judge Trentacosta. “And the County Bar has an Attorney Code of Conduct. It’s simple, it’s unequivocal and it’s like the Ten Commandments for attorneys,” he said.
One of those commandments is that member lawyers conduct themselves in a professional manner, yet Justice Nares says he can’t believe what he has heard lawyers say on their cell phones while he’s riding the commuter train to work. “Lawyers talk about their clients, witnesses and judges. It’s shocking. Don’t discuss your client’s affairs in public.”
And that practice is also a violation of the Duties of an Attorney as stated by Section 6068 of the California Business and Professiona Codel, cited by Judge Trentacosta, “To maintain inviolate the confidence, and at every peril to himself or herself, to preserve the secrets of his or her client.”
The ethics conference was well-attended and many students said they felt the discussion provided very valuable information.
