On March 16, as we were confronting the reality of a pandemic and its potentially devastating effects, I authored a column for this publication titled “Keep Calm and Carry On: Ethics in a Time of Stress.” The article included some practical advice for counter-acting the effects of the pressures and fears that we would certainly be experiencing in coming months. (Much of this advice was added to and improved on by the Pennsylvania Bar Association’s now widely cited Formal Ethics Opinion 2020-300, “Ethical Obligations for Lawyers Working Remotely.”
At the time I wrote that article, I did not know that the science that could protect us and guide our decisions would be attacked by the very people that should be promoting it, that sensible public health measures that could prevent the spread of disease and save lives would be politicized to divide us and distract us from the greed and corruption in our government, that hospitals would have inadequate supplies to protect either its patients or its heroic staff members, that people who lost their jobs would face indifference instead of relief, that voters rights would be shamelessly trampled, that the inequities of our society would be exacerbated in ways that will take years to alleviate, that prisoners would be left to die, that nonviolent protests against police brutality would be met with—police brutality. My advice in March was wrong—this is not a time to stay calm.
Fueling all of this is an ongoing war on facts—and facts are essential to the practice of law. This war is anathema to all, but to our profession in particular. Every day in every matter, lawyers must rely on facts proven by reliable and relevant evidence. As the great orator John Adams is quoted as having said in one of his closing arguments: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact.” We cannot avoid the truth by denying and distorting the facts.
The current political environment has encouraged the conflation of opinion with fact. This conflation is an attack on the truth which, as citizens and as lawyers, we are bound to resist. Some issues are not a matter of opinion: they are a matter of fact. For instance, it is a fact that systemic racism and gender inequality exists in our country and that this systemic inequality is evident in our justice system, our economic system, our public health system, our educational system and our profession. However, on Sept. 22, Donald Trump signed an “Executive Order on Combating Race and Sex Stereotyping,” which denies the existence of white privilege and insists that anyone working for and with the federal government agree that this concept is not legitimate. See https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/. As a result, diversity and inclusion training has stopped at colleges and federal agencies. See https://www.insidehighered.com/news/2020/10/07/colleges-cancel-diversity-programs-response-trump-order; https://www.sfchronicle.com/politics/article/Justice-Department-cancels-diversity-training-15635203.php. With one stroke of the pen, the federal government has demanded and enforced orthodoxy on the issue of systemic racism and sexism, in complete derogation of the facts. In the words of another great orator, Chico Marx, “Who ya gonna believe, me or your own eyes?” https://www.youtube.com/watch?v=cHxGUe1cjzM
In Pennsylvania, our Supreme Court has taken a different approach to fighting systemic racism and sexism. On June 8, the Pennsylvania Supreme Court approved the adoption of Rule 8.4(g) broadening the definition of misconduct to prohibit “in the practice of law, by words or conduct, knowingly manifest(ing) bias or prejudice, or engag(ing) in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.” The new rule will be effective in December of this year. The adoption of this provision came after years of debate on the issue on the rule’s specific wording and its effect on free speech. But there was little debate on the justification for the Rule: the facts about racial and gender discrimination in our profession mirror the issues in our larger society. See https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/new-study-finds-gender-and-racial-bias-endemic-in-legal-professi/. Whether you agree with the promulgation of the new rule or not, the facts are clear: women and minorities are at a disadvantage in our profession as both lawyers and clients. The rule reflects our understanding of these facts. The Rule also reflects our agreement that our shared values require us not to ignore, minimize or rationalize these inequities but to stand together to address them.
This is not the only platform on which we must stand together to face and address the facts. Every day of this election cycle we have seen concerted, direct and blatant efforts to suppress the right to vote, often targeted at Black and Latin-American citizens. We must do everything we can to resist these efforts, and in coming years, advocate, litigate and legislate to protect these votes.
The Preamble to the Rules of Professional Conduct remind us that the privilege we hold—the privilege of a license to practice law brings with it both power and special responsibilities: as a “public citizen a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” This is a part of the Rules that we do not often read, cite or rely on, but the time has come to take these words to heart.
So my advice to you, as we stand on the brink of a momentous election, is that this is not a time to be calm, nor is it time to panic. It is a time to hope, to prepare, to plan and to act on behalf of all the values we cherish and that we espouse as part of our profession: the values of freedom, equality of opportunity, and social and economic justice. The election will be over soon but this fight is just beginning.
Ellen C. Brotman, of BrotmanLaw in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the October 23, 2020 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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