by Patrick G. Longhi, J.D.
In the town of Killarney in southwestern Ireland at the locals-only pub on a blustery Saturday night in early spring 2017, the regulars played Celtic music for patrons who all seemed to know each other engaged in lively conversation. Echoes of the footsteps of their ancestors boarding ships bound for America, Canada and Australia trail off in a place frozen in time where those who did not get out due to the great famine in 1845 and oppression from the English rulers still had a better life a century and a half later.[i] It would be the Easter Rising in Dublin in 1916 and the struggle for a free Irish Republic in 1922 to after World War II that the independent Republic of Ireland under its patriots like Michael Collins would be born in 1949.
E Pluribus Unum is Latin for “Out of Many One” and the motto of the United States of America, appearing on its Great Seal. In American society with its focus, not unlike other countries, on its own history, partly to encourage assimilation in a culture uniquely its own and shape a commonality for its people, the history of the countries from which immigrants came are not part of the regular curriculum of elementary and secondary education. The American Revolution in 1776, its war of independence from oppressive rule from a British crown on another continent and the blueprint for a democratic republic in the 1787 United States Constitution are well known and, yet, the Republic of Ireland has a similar heritage. [ii]
It was also under English rule from which the Irish fought for their freedom in the 1798 Irish Rebellion led by Dublin lawyer Wolfe Tone which failed. The 1801 Act of Union subsequently forced Ireland into a “Union” as part of a United Kingdom [“U.K.”] dissolving the 500 year old Irish parliament with its members becoming part of the U.K. parliament in London. Unionists thereafter became known as those who opposed Irish independence.
Thus, both the Republic of Ireland and the United States of America have their justice systems, rule of law and societal underpinnings evolve over time from its inception as part of common law England. This article will address how Ireland and America have evolved with Ethics in their legal professions and justice systems including commentary on the challenges they face with ethical concerns and issues in their contemporary societies.
Ethics in American Law and Their Evolving Canons: Its Origins and Meaning
Although political theorists predating our founding fathers such as Frederick Bastiat and Emmerich de Vattel have postulated and written on Ethics, it is a simple truth: the basic meaning of Ethics is doing the right thing…or as Mark Twain once said, “There is nothing wrong with doing the right thing.” Ethics is at the intersection of what’s moral and what’s legal, thus, it can be relative and evolve with the times.
It was the Alabama State Bar Association which first adopted a Code of Ethics in 1887. The American Bar Association [“ABA”] adopted the original thirty-two Canons of Professional Ethics in 1908. In 1969, the ABA adopted the Model Code for Professional Responsibility. The Georgia Code of Professional Responsibility, the predecessor to the present code, was more expansive in stating duties to public service and further improvements in the law as its call to action to lawyers as natural leaders of society. One recurring theme was Canon 9: Avoiding the Appearance of Impropriety. It is of worthy note the July 2016 incident of a former U.S. president talking on an aircraft with an U.S. attorney general investigating the former president’s wife never would have happened adhering to this rule as all three are lawyers.
“EC”s were aspirational Ethical Considerations. “DR”s were Disciplinary Rules were minimum standards of conduct below which a lawyer would be disciplined. EC 1-5 states, “A lawyer should maintain high standards of professional conduct and shall encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.”
Two ECs call on lawyers for public service: EC 8-8 states it is “highly desirable” lawyers serve as legislators and other public office holders as they are uniquely qualified to make significant contributions to the improvement of the legal system. EC 8-9 states the “advancement of our legal system is of vital importance in maintaining the rule of law and in facilitating orderly changes.” These are very timely noting an erosion of lawyers being active in the other branches of government.
The Georgia Rules of Professional Conduct are more streamlined than its predecessor and have been the current code of ethics for lawyers since 2001. Some of the highlights of the new code are: affirmed traditional duties but also concerned with respecting rights of 3rd persons [Rule 4.4], avoiding collateral damage or additional damage, known future criminal conduct if efforts to persuade client to abandon fail [Rule 1.6], ensuring no communications to all represented persons [Rule 4.2], reminding prosecutors are not to be persecutors as ministers of justice [Rule 3.8] and a whole section devoted to Integrity [Part 8].
THE IRISH PERSPECTIVE: Foundations of Law and Ethics in the Republic of Ireland
Ireland, like the United States, is a Republic with a written constitution following the common law tradition. Its current Constitution dates from 1937, replacing the Constitution of 1922 that was adopted following Ireland's independence. Unlike the United States, Ireland is a unitary rather than a federal State. It is a member of the European Union – a political, economic and social union of 28 member states - and of the Council of Europe - a more loosely bound association of 47 member states adhering to the European Convention of Human Rights and Fundamental Freedoms and promoting democracy, respect for human rights, and the rule of law. [iii]
Among the initiatives undertaken by the Council of Europe in the area of promotion of ethics in Government was the adoption of the Twenty Guiding Principles for the Fight against Corruption in 1994.[iv] The principles inter alia call for States to take effective measures for the prevention of corruption and, thus, raise public awareness and promote ethical behavior, coordinate criminalization of national and international corruption, ensure those in charge of the prevention, investigation, prosecution and adjudication of corruption offenses have independence and autonomy appropriate to their functions and free from improper influence for gathering evidence, protecting the persons who help the authorities in combating corruption and preserving the confidentiality of investigations.[v]
Moreover, the principles enjoin States to provide appropriate measures for the seizure and deprivation of the proceeds of corruption offenses, appropriate measures to prevent legal persons being used to shield corruption offenses, limit immunity from investigation, prosecution or adjudication of corruption offenses to the degree necessary in a democratic society. They promote the specialization of persons or bodies in charge of fighting corruption providing them with appropriate means and training to perform their tasks. They also require States to ensure that fiscal legislation and authorities in charge of implementing it contribute to combating corruption in an effective and coordinated manner, that the organization, functioning and decision-making processes of public administrations take into account the need to combat corruption, the rules relating to the rights and duties of public officials include requirements of the fight against corruption and provide for appropriate and effective disciplinary measures.
The guiding principles further mandate that States implement appropriate auditing procedures applicable to the activities of public administration and the public sector in preventing and detecting corruption outside public administrations, and adopt appropriate transparent procedures for public procurement that promote fair competition and deter corruptors, and adopt measures for the financing of political parties and election campaigns which deter corruption, and ensure that the media have freedom to receive and impart information on corruption matters, subject only to limitations or restrictions necessary in a democratic society.
Finally, the principles seek to ensure civil law includes the need encourage research on corruption , ensure that the fight against corruption, takes into account possible connections with organized crime and money laundering and call for the development to the widest extent possible of international cooperation in all areas of the fight against corruption.[vi]
In November 1996, the Committee of Ministers of the Council of Europe adopted the Programme of Action against Corruption, and in May 1998, the Committee of Ministers authorized the establishment of the “Group of States against Corruption” (GRECO) to monitor observance of the Guiding Principles and implementation of the Programme of Action.
Ireland's parliamentarians and public officials, including most public office holders , with the exception of the judiciary, are subject to a public ethics regime largely set out in two principal Acts - the Ethics in Public Office Act 1995[vii] and the Standards in Public Office Act 2001[viii] - and a series of codes of conduct, viz.:
Compliance with these codes is overseen by the Standards in the Public Office Commission,
which also oversees compliance with elections and lobbying legislation.
A Judicial Council Bill was published in June 2017 which includes a provision for the issuing of guidelines on judicial conduct and ethics by the Judicial Council, which will be an independent body representing the judiciary as an institution. The provision of guidelines/ a code of ethics for the Judiciary will fulfill a recommendation made by the “Group of States against Corruption” (GRECO) in its evaluation report in 2014 on Ireland assessing provision for and implementation of anti-corruption measures in relation to parliamentarians and the Judiciary.[x]
The courts in Ireland are administered by an independent statutory agency, viz. The Courts Service. Noel Rubotham, Esquire is its Director of Reform and Development. In a wide ranging interview in his office at the historic Green Street Courthouse in Dublin, Ireland with the author, Mr. Rubotham explained that his country’s legal profession is divided into two branches, comprising solicitors and barristers-at-law.[xi]
Solicitors, generally, provide the immediate contact with the client and provide general advice and representation. Solicitors maintain offices which are open to the public. A barrister's primary function, having received instructions from the client through the medium of the client's solicitor, is to provide advice on more complex matters and to handle court advocacy work in the event of litigation (viz. drafting and presentation of legal arguments , examination-in-chief and cross-examination of witnesses etc.). Unlike solicitors, barristers are ordinarily not permitted to seek business from members of the public, treat directly with the client or to open offices to which the public have access, and are not permitted to form partnerships.
Both branches of the legal profession are currently governed in terms of rules of professional conduct by their respective professional representative bodies, viz. The Law Society of Ireland in the case of solicitors and the Bar Council in the case of the barristers' profession. In addition, solicitors are subject to a degree of statutory regulation, in particular, in terms of their right of audience and formal disciplinary procedures and sanctions.
The professional conduct code governing solicitors is comprised in the Law Society's Guide to Good Professional Conduct for Solicitors, which articulates Core values (viz. Concerning honesty, independence, conflicts of interest and confidentiality) and contains a set of detailed provisions concerning acceptance of instructions from a client, the standard of legal services to be provided, termination of retainer, remuneration, privilege and confidentiality between solicitor and client, conflicts of interest, and the relationship to be maintained by the solicitor with the client, with the court , with third parties, with other solicitors and with counsel.
The Bar Council maintains a Code of Conduct for the Bar of Ireland, containing a set of General Principles, and provisions governing relations between a barrister and the client, solicitors, members of the public and other barristers respectively, the obligations of barristers in conducting cases, the relationship of barristers with their governing body, practicing certificates, continuing professional development and circumstances in which senior counsel may be retained and fees.
Ireland is very sensitive to ensure the independence of its judiciary. The President of Ireland upon advice of the Government (viz. The Prime Minister - or Taoiseach, in the Irish language, and the Cabinet) appoints its judges. Thus, there are no elections. Judges are governed by common law as to their standards and ethics, viz. in relation to the circumstances in which they should recuse themselves in the event of a conflict of interest, or perceived conflict of interest, in relation to litigation which may come before them for trial. All judges in Ireland have full tenure. They may only be impeached on the passing of a resolution of both Houses of Parliament for stated misbehavior or incapacity. There are now a total of 169 judges (at first instance and appellate levels) to manage a caseload of approximately 436,000 criminal and civil cases, according to Mr. Rubotham, the lowest ratio of judges to population in Europe, thus, requiring reforms to address the needs of a modern nation with a growing population.
Playing by the Rules and Truth Telling: Moving the Goal Posts as to Political Correctness and Free Speech in American Society
Why have Rules in Civil Society if people are allowed to break them? Institutions exist to enforce rule the law with consequences and to monitor themselves, viz. duty of the bar in the courtroom and the media in a presidential election in our new age of Fact Checkers. Where there are no rules will promote a societal breakdown without any institutions existing as checks and balances. Cyberspace hackers/Cyberwar weapons such a STUXNET malware, for example, unleashed on Iran could backfire and spread to the United States and around the world, akin to taking the Genie out of the bottle. Therein lies the need for treaties [rules] such as for nuclear and biochemical weapons.
Changing the Rules: Mao’s 1966 Cultural Revolution was a time in Communist China where the peasants were the rulers and the academic elite became the workers. One witness was said to describe it, translated into English: “It was like the sky had become the earth and the earth had become the sky.” It didn’t succeed.
Rules with Boundaries: In 2016, comedian Jerry Seinfeld was again talking about audiences after criticizing college audiences not receptive to humor immediately scrutinized at face value and not for provoking thought, dialogue or understanding what boundaries may exist. Meanwhile, Roseanne Barr of NBC’s Last Comic Standing said, “There’s an element of censorship in our culture now. It’s that P.C. thing that’s ready to slam somebody and say, ‘We don’t talk about that.” Enter, the Age of Political Correctness.
Respect for Authority, Law and Institutions can coincide with Right to Protest, Dissent and Appeal, to-wit, to disagree without being disagreeable. Inviting a guest president to your House chamber yelling out “he lied” while he’s speaking and extolling the end of political correctness with more freedom to say whatever’s on your mind may be free speech but at what cost to ethical norms and civil society? Ushering in of an era of mean spiritedness to fellow Americans may portend a reversal of the maturation of American society. If the test was whether a parent would want to have their children hear it, could this portend to be the Rise of the Vulgarians, viz. an age of intolerance, insensitivity, bad manners and perhaps even bawdy behavior?
Rule to Live by the Truth: Even the perception one can no longer be truthful has upended spectacular careers, viz. Dan Rather’s fall from grace with CBS and Brian Williams later from NBC showing a lifetime of building a distinguished reputation can be lost in one act dishonoring it. There are present day calls for alarm on a lack of truth. So how concerned are we about the current state of the truth? Even in pop culture there are concerns expressed. In a FBI crime-based television show, The Blacklist, on NBC in an episode that aired February 2, 2017, James Spader’s character, Ray Reddington, laments, “The truth doesn’t matter. What only matters is the appearance of truth which has become illusive, often imaginary. In the end that’s all we have…what are real are the taste, touch and feel of words between us…and are all we have to hold onto.” Therefore, should we fear our society is now losing the truth drip by drip right before our very eyes?
Ethics, Truth, Justice and the Legal Profession in America
Justice is the twin of Truth. According to Plato and Aristotle, two leading figures of ancient Greece, Justice was the fairness in the way that people are treated. On May 19, 2016, Judge Andrew Hanen of the US District Court for the Southern District of Texas issued a scathing order criticizing the conduct of several Department of Justice attorneys defending the federal government against a suit brought by a group of 26 states. The Daily Report in Atlanta, Georgia reported on June 15, 2016 that the court found that the attorneys representing the U. S. Department of Justice [“DOJ”] made several “misstatements of fact” in response to inquiries from the court during hearings and in pleadings regarding the government’s compliance with prior orders or rulings.
The court found that the DOJ attorneys violated their duty of candor by “making statements that clearly did not match the facts.” The court, in a 28-page opinion, issued sanctions not only against those DOJ attorneys involved in the case (revoking their pro hac vice status) but also against all DOJ attorneys employed in Washington, D.C. The court also required the DOJ attorneys to provide additional information regarding the government’s actions that had purportedly been misrepresented by those attorneys.
American cannons of ethics call for us to treat each other with respect, candor to the tribunal and resolve cases or issues fairly and efficiently in our respective adversarial roles. An advocate in court after a ruling must be courteous and respectful to the court as the embodiment of law with a “Thank you, Your Honor,” whether or not the ruling will be appealed. This is true whether in the courthouse, the halls of Congress or international diplomacy. President John F. Kennedy once said, “Let us never negotiate out of fear, but let us never fear to negotiate.”
Marcus Tullius Cicero [January 3, 106 BC – December 7, 43 BC] was a Roman philosopher, statesman, lawyer, orator, political theorist, Roman consul and constitutionalist: "All mankind should lay it down as their constant rule of action, that individual and general advantage should be the same: for, if each man strives to grasp every advantage for himself, all the ties of human society will be broken.” One could imagine if he were alive today, in light of today’s climate in Washington, he might say there are too many partisans and not enough patriots.
Dignity, Class Respect and The Assault on Civil Society
Celebrated American Ben Franklin was said to have written a book about honesty being the best policy in attaining a successful career that was a best seller in its time. That was his marketing plan. Lawyers also should consider a return to their original business model: Having a solid reputation with the credibility, respect and having class that goes with it, to-wit, being a class act. Today increasing exists in society a lack of class. What is it? Perhaps it is like the definition of the supreme court justice about pornography, “You know it when you see it.”
Winning vs. Losing: Learning to win but also learning to lose is just as important. You learn just as important lessons losing as winning, i.e. how to lose and to lose with grace. Enter sportsmanship. Sports celebrate excellence of the human endeavor.
Sports figures should be sports-like, viz. “being a good sport,” and set a good example; see Joe DiMaggio, Babe Ruth, and Muhammad Ali as American role models setting a good example. The doping and steroid scandals in recent years demean sports and glorify cheating and taking the easy way out. It starts early with the youth leagues where parents should be supportive, cheering in the stands and not fighting with each other or the referees or even encouraging their children to fight other children.
Respect for Authority and Right to Dissent should not be incompatible concepts. Americans need to avoid the appearance of impropriety to prevent further erosion of public confidence in all our institutions in the public and private sector. We need to reverse course away from anarchy, confrontation and polarization and herald the return of Institution Building.
Americans are privileged in their society with great fortune and opportunity. Our justice system has a way of reinventing itself over time with mistakes of not including everyone in the past. "With great wealth comes great responsibility," said Rose Kennedy, the late matriarch of a great Irish-American family. So, too, with great fortune comes great responsibility. Being fortunate as members of the legal profession comes with making sure our clients and the public are protected through America’s cannons of ethics, which are also evolving.
There are also concomitant duties to the other institutions to keep them strong as all great civilizations have had one thing in common: they all ended. As today’s Romans look to what remains of their ancestors’ glory days, so too will the descendants in the future look to today’s inhabitants of both Ireland and America. It is our duty now to ensure that the greatness of society’s institutions, security and investment in the promise of every nation’s youth are sound, not just for our time but for all time.
Copyright 2017 Patrick G. Longhi
[i] The ancestral home of Irish relatives of the author who personally made those observations on April 1, 2017 on a trip through the Republic of Ireland with Andrew P. Longhi, J.D. candidate, Stanford Law ’20, whom the author thanks for being a contributor to this article.
[ii] This article does not address Northern Ireland which is part of the United Kingdom. For more information on the Republic of Ireland, check: James Charles Roy, The Back of Beyond: A Search for the Soul of Ireland (2002), Maire and Conor Cruise O’Brien, Ireland: A Concise History (1972) and Richard Killeen, A Short History of Ireland (1994).
[iii] Interview with Noel Rubotham, Esquire, Director of Reform and Development, The Courts Service, Republic of Ireland, Green Street Courthouse, Dublin, Ireland (March 31, 2017).
[ix] Civil Service Code of Standards and Behaviour, https://www.sipo.ie/en/Codes-of-Conduct/TDs/, https://www.sipo.ie/en/Codes-of-Conduct/Senators/, https://www.sipo.ie/en/Codes-of-Conduct/Civil-Servants/, https://www.oireachtas.ie/documents/bills28/bills/2017/7017/b7017s.pdf
[xi] Interview, supra. The author wishes to thank Mr. Rubotham for his gracious and generous cooperation and assistance in this article. See, also, The Solicitors Acts 1954 to 2011 and the regulations made under those Acts, https://www.lawsociety.ie/globalassets/documents/committees/conduct-guide.pdf, and https://www.lawlibrary.ie/Documents/Code-of-Conduct-for-the-Bar-of-Ireland-adopted-25.aspx.
About the Author
Patrick G. Longhi has maintained an Atlanta general trial practice for over three decades and has lectured on Ethics at continuing legal education seminars he chaired for almost a quarter century. An award-winning former local bar president for an educational film he wrote and directed on lawyers distributed to libraries and school media centers, in recent years and still now he chairs a “Future Leaders of America” scholarships subcommittee on the Fulton County Law Week Committee for local high school students to study government and politics in Washington, D.C. each summer. He received the Albert Nelson Marquis Lifetime Achievement Award from Marquis Who’s Who in 2017, a plaque in appreciation from the Fulton County Law Week Committee in 2016 and a letter of recognition from the judiciary of the Fulton County Superior Court in Atlanta, Georgia in 2014. He does recommend Guinness on tap when visiting the Temple Bar District in Dublin, Ireland.