Compromise and Consequence

Transcription

1 Compromise and Consequence William J. O Neil Presiding Disciplinary Judge for the Supreme Court of Arizona ETHICS Ethics is a subcategory of Philosophy which can generally be boiled down in concept to two words; Should and Should not. REGULATION Regulation can be generally boiled down in concept to two words; Shall and Shall Not. 1

2 KNOW THYSELF HOW DO WE LINK THEM TOGETHER? THE WHAT ME WORRY ATTITUDE THINKING THROUGH THE BASICS Does culture influence our ethics? 2

3 GOOD HOW DO YOU DEFINE IT? Vince Lombardi-Not! WINNING IS NOT EVERYTHING; IT IS THE ONLY THING. The Real Vince Lombardi Winning isn t everything. The will to win is the only thing. 3

4 The Goals of Our Session That you will have a better understanding of the plan and purpose of regulation of the profession; That in discussing examples from attorney discipline you will learn from the mistakes of others; That you will recognize and avoid the tar pits and root causes for regulation. THE DEAL FROM O NEIL To Find What Works, Learn From What Doesn t. ANCIENT LATIN MAXIM I TE DE ALIIS, QUAM ALIOS DE TE SUAVIUST FIERE DOCTOS. Plautus, Persa, 540 4

5 IT S BETTER TO PROFIT BY A HORRIBLE EXAMPLE THAN TO BE ONE. Americans inherently give more authority to that which is inward, precisely because it is inward than to anything external. There is no external authority that counts as highly as an inward hunch or experience. Wade Clark Roof YOU!! MAKE THE CALL! 5

6 Mark Twain It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so. The Missing $140,000 The Lawyer withdrew the monies from his trust account. The funds are gone. I don t know what happened to it, what do you think happened? YOU!! MAKE THE CALL! 6

7 Different lawyer, Different Theft I don t know what the problem is. My client didn t need the money, I did. I ll pay him back when I can. So what s the problem! We don't need no education We don't need no thought control No dark sarcasm in the classroom Teachers leave them kids alone Hey teacher leave them kids alone All in all it's just another brick in the wall. Pink Floyd ANCIENT LATIN MAXIM II BIBAMUS, MORIENDUM EST. Seneca the Elder, Controversiae, II, 6,3 7

8 DEATH S UNAVOIDABLE; LET S HAVE A DRINK. LIFE THE CIVIL WAR OF PURPOSE The purpose of attorney discipline is not to punish the offending lawyer. In re Petrie, 154 Ariz. 295, 742 P.2d 796 (1987); In re Neville, 147 Ariz. 106, 708 P.2d (1985). 8

9 PRESIDENT JAMES MONROE The question to be asked at the end of an educational step is not What has a student learned? But, What has the student become? THE PURPOSE TO: -protect the public; -maintain the integrity of the profession; -deter other lawyers from engaging in unprofessional conduct. In re Brady, 186 Ariz. 370, 923 P.2d 836 (1996); In re Murray, 159 Ariz. 280, 767 P.2d 1 (1988). ANCIENT LATIN MAXIM III Errare humanum est, sed perseverare diabolicum. Seneca 9

10 TO ERR IS HUMAN, BUT TO PERSIST (IN THE ERROR) IS DIABOLICAL. LEARN FROM THE DINOSAURS AVOID THE TAR PITS! 10

11 O NEIL S TOP FOUR SNOOZIN STEALIN SPITTIN OUT SNORTIN IN An Ounce of Prevention Can t Hurt Practical Tips for a Winning Hand NEVER, NEVER, NEVER STEAL FROM YOUR CLIENT 11

12 NEVER, NEVER, NEVER LIE About The Facts; About The Law; To Try To Cover Up; To Ignore A Mistake EVER! DO NOT SLEEP WITH YOUR CLIENT DO NOT CURSE AT ANYONE -ESPECIALLY- YOUR CLIENT 12

13 YOU!! MAKE THE CALL! ANCIENT LATIN MAXIMS 3 FACILIS DESCENSUS AVERNO; SED AD AURAS EVADERE EST LABOR! Virgil, Aeneid, VI, 126 GOING TO HELL IS EASY; IT S COMING BACK THAT S HARD! 13

14 TWO BASIC RULES FOR THE ROAD RESEARCH FIRST, THEN WRITE! It can hardly be doubted that the ability to do legal research is one of the skills that any competent practitioner must possess. A.B.A. task force 1992 EXERCISE CARE AND CAUTION communications and texting, clients demands, and your desire to meet those demands put you at risk. Always allow sufficient time to properly perform a service and to carefully communicate with the client 14

15 RECOGNIZE THE ROOT CAUSES TO GUARD AGAINST UNETHICAL BEHAVIOR DON T JUST THINK HOW TO BE ETHICAL. CONSIDER WHY PEOPLE DO UNETHICAL THINGS. ANOTHER DEAL FROM O NEIL THE CULTURE OF STINKIN THINKIN ENTITLEMENT EGO SUDS SITUATIONAL ETHICS 15

16 STEP BY STEP, INCH BY INCH Under delivering on commitments Over promising Turf-guarding Goal lowering (fear of failure) Sharp-penciling Detail skipping Praise pinching Credit hogging Blame buffering Scapegoating WHY PEOPLE HIRE YOU Your Perceived Ethics. Wirthlin Worldwide Annual Survey QUESTIONS? 16

17 MAXIM IV- ONE MORE FOR THE ROAD NOLI SIMUL FLARE SORBEREQUE DON T WHISTLE AND DRINK AT THE SAME TIME. Compromise and Consequence William J. O Neil Presiding Disciplinary Judge for the Supreme Court of Arizona 17