DIFFICULT MORAL QUESTIONS
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Question 180: May a lawyer select potential evidence for probable destruction?
I am an associate in a law firm, working under the direction of one of the partners, Ralph Klane, whose practice is almost entirely limited to labor union locals.396 About eighteen months ago, the president of one of our clients retired, and the secretary of the local, whom I’ll call Jikel, was elected to replace him. The former president was absolutely honest and extremely effective; union members revered him and employers respected him. Jikel would look bad by any standard, but compared with his predecessor, he is a disaster. Grievances of every sort get belated and inept handling, and managers at several companies are ignoring important contractual provisions with impunity. Some union members who have suffered as a result of Jikel’s incompetence tried to force his ouster but failed. Three whose discharge probably should have been brought to arbitration, but whose cases he bungled in ways that now make that impossible, have threatened to file suit against him and the local, on the ground that contractual obligations toward them as union members were not fulfilled, resulting in financial damages to them through not being reinstated in their jobs.
In Mr. Klane’s judgment—and I agree with him—the disgruntled union members have a case that is plausible but not good enough to prevail. We are confident that they will not be able to obtain competent counsel on a contingent-fee basis, and they will not be able to afford to litigate the case to the end. The only real threat for Jikel and the local union concerns what might happen at discovery, when the plaintiffs’ lawyers will want to examine every scrap of paper in the union’s files that might be relevant.
This morning, Klane and Jikel had a conference. I was not present. Afterward, Klane told me that, although the suit has not yet been filed, they decided we should make advance preparations. He directed me to go to the local union’s office and scour the files, tagging (but not pulling or copying) all items of certain kinds, some to be tagged in one way, most in another way. Not understanding the directions, I began asking questions and eventually realized that the common feature of items of the kinds to be tagged in the first way is that they would be missed if not produced at discovery.
Carrying out this assignment will not be particularly difficult, but I am quite uncomfortable with it. Klane, of course, obtained Jikel’s agreement to my going through his files and tagging them. I am confident Klane did not advise him to do anything about any of the tagged items, but I am sure Jikel will put two and two together, freely purge the files of embarrassing items that will not be missed, and even get rid of a few of the most sensitive items that will be missed. In effect, I will be selecting potential evidence for destruction. This skates along the edge of violating professional ethics, which forbids destroying or concealing a document or other material with potential evidentiary value, or counseling or assisting anyone else to do so.397
Up to now, I have got along well with Mr. Klane, but it is clear in this firm that associates must go along just to survive, and all the more so to make partner. I hope it will be all right for me to put aside my qualms of conscience and do the job.
Analysis:
This question calls for the confirmation and application as a moral norm of the rule of legal ethics that forbids destroying or concealing potential evidence. This rule is reasonable and important for achieving justice. All violations are gravely wrong and any deliberate violation by a lawyer raises a substantial question about his or her honesty and trustworthiness. Hence, the questioner must resist following instructions and if necessary refuse to follow them. Moreover, if Klane and/or other members of the firm persist in this project, the questioner should, in my judgment, report him and/or them for professional misconduct. Since doing that would be unusual and almost certainly would have consequences gravely detrimental to the questioner, the reasons requiring it must be stated clearly and the factors that impede self-regulation by the members of a profession must be explained.
The reply could be along the following lines:
Some rules governing activities of members of a profession bear on merely instrumental or otherwise secondary matters, while others bear on specific actions in respect to the good that those practicing the profession should serve. Bar Association rules regarding advertising fees and preventing the unauthorized practice of law are of the former sort. They govern important matters but do not shape a lawyer’s participation in legal processes. A lawyer sometimes is justified in making exceptions to such rules, especially in their details, for the sake of superior and intrinsic values, particularly justice to be achieved through legal processes. By contrast, the rule you cite does bear on lawyers’ specific role in legal processes. Therefore, assuming it reasonable, a lawyer is unlikely to be justified in making an exception to it.
But the rule forbidding destroying or concealing material with potential evidentiary value not only is reasonable; it is important. In times past, many societies tried cases by ordeal or personal combat, believing that God or fate would ensure a just outcome. But everyone eventually came to recognize that relying on fate is irrational, and faithful theists came to realize that God calls on human beings to cooperate in carrying out his wise and loving plan, so that relying on him requires that they not only seek good ends but use the means God provides, not least their intelligence, as fully as they can in pursuing them. So, nonbelievers and believers alike strove to develop sound norms for legal processes that were meant to reach just judgments (or settlements) by searching out the truth about people’s relationships and other relevant facts. The processes work only if evidence is brought to light so that it can be considered. Necessarily, therefore, any violation of the rule about handling potential evidence is seriously wrong, since it makes unavailable part of the truth on which a just judgment (or a just settlement forestalling the trial) must be based. When one understands the purpose of this rule, one also sees why laws in some jurisdictions expressly prohibit suppressing evidence even when a suit has not yet been filed but is only anticipated.
Inasmuch as this rule bears on the essential activity of lawyers and is important, so that all violations are seriously wrong, any fully deliberate violation of it by a lawyer raises a substantial question about his or her honesty and trustworthiness. Thus, the situation you describe involves a challenge to your personal and professional character. Moreover, as you consider your responsibilities, you should put yourself in the place not only of the three union members who are threatening to sue but of other union members who are being badly served due to Jikel’s shortcomings. Bear in mind how much is at stake for these people and how badly they and their families may be hurt if he is not held responsible.
I am sure your reading of the assignment you have been given is substantially correct. Mr. Klane has instructed you to tag certain items in the files of a client—Jikel and the local union of which he is president—in order to prepare for an anticipated lawsuit, in which the tagged items might have to be made available to the prospective plaintiffs. In itself, tagging relevant items could be prudent and entirely legitimate. However, tagging items in the manner Klane has specified—in different ways depending on whether or not plaintiffs’ lawyers would realize they are missing—cannot be intended to serve any purpose except to signal which of the items can be disposed of safely. There would be no point to that unless Klane intended that the signal be used as a guide in purging the files. Hence, if you carry out Klane’s instructions, both he and you will be deliberately preparing for someone to destroy or conceal documents or other material with potential evidentiary value. That not only “skates along the edge of violating professional ethics,” as you put it, but clearly and directly violates the cited rule. Given the facts as you have described them, I can see no justification for you to make an exception to the rule. Therefore, you may not follow Klane’s instructions. Contributing in this way to his incipient effort to forestall a just judgment or settlement would be seriously wrong even if you did not share his wrongful intention, as I assume you would not.
You might argue that in this case there is a justification for making an exception. You do not think the prospective plaintiffs can prevail, partly, it appears, because you think they will be unable to carry the litigation through to the end. But you may not act on the basis of that expectation. You do not know what evidence plaintiffs’ lawyers will uncover or what sort of case they can build. If the evidence needed to build a powerful case is uncovered, plaintiffs’ capacity to prevail might change. Their counsel might then agree to proceed on a contingent-fee basis; other disgruntled union members might help them; the evidence might force Jikel to resign and motivate those taking charge of the union local to offer a settlement; and so forth. Therefore, it would be unfair for you to make your prediction self-fulfilling by using it as an excuse to make preparations to purge the files.
What should you do? You might be tempted to try to evade the problem by purposely “misunderstanding” your instructions and tagging all the items of both sorts as you have been told to tag only those whose absence would be noticed. That would solve nothing, however, since Klane would be sure to find out what you had done, and you would be asked for an explanation. At that point, you would either have to lie, which would be wrong and probably ineffectual, or would have to own up to what you had done, which almost certainly would provoke Klane no less than if you simply refused to do as he has told you.
Therefore, rather than trying to evade the problem, talk with Klane at once. Tell him you are concerned about carrying out his instructions because, it seems to you, that would violate the rule about handling potential evidence. In this way, you will invite him to show you how doing it would be legitimate. However, I expect he will try to brush aside your objection by saying: “If you had more experience you would realize this is necessary to give Jikel the best possible defense” or “Nobody need ever know” or “Everyone stretches these rules a bit now and then.”398 In response, you should not only tell him why you think violating this particular rule is seriously wrong but point out that Jikel, incompetent as he is, can hardly be relied upon, and if he purges the files and it becomes known to plaintiffs’ lawyers, the result could be disastrous—not only for him but for Klane and you. Suggest that Klane tell Jikel all items will be tagged in a single way and warn him not to attempt to purge his files.
And if he rejects your suggestion and refuses to amend your instructions? He might say nothing, and simply relieve you of the task and assign you to other work. If so, it seems to me, you will have fulfilled your responsibility. You have no authority to pursue the matter; you will not be cooperating in wrongdoing and will not even know for certain that the wrong is being done. Very likely, though, Klane will either insist that you carry out his instructions or tell you that someone else will do the job. Then you should appeal to the other manager or managers of the law firm to countermand his decision, if they can, or, if they cannot, to try to persuade him to change it. This appeal might succeed. If it does, it might benefit Klane by preventing him from violating an important ethical norm. It could even benefit you. Though your superiors might respond negatively, at least some of them are likely to respect you for your integrity and courage.
But, of course, the appeal also might fail. If so, or if you are threatened with dismissal, you should first warn Klane and then, if necessary, everyone in authority in the firm who supports him that, unless the project of getting rid of potential evidence is abandoned, you will report him and/or them for professional misconduct inasmuch as doing what is proposed would raise a substantial question about his and/or their honesty and trustworthiness.399 If that warning is heeded, your days with the firm will be numbered, and you will have to pursue prospects elsewhere. If it is not heeded, you ought to carry out your threat and accept the consequences.
Merely questioning Klane’s instructions already will involve some risk to your prospects with the firm, for, as you say, associates there must go along with their superiors even to survive, and all the more so to become partners. Why take that risk? For the sake of justice, which the legal profession is committed to serve; for the sake of the potential plaintiffs and, indeed, the other union members, who are likely to suffer due to the injustice; for the sake of the profession itself, which is corrupted by serious misconduct; for the sake of the client, whose true and legitimate interests will not be served by getting rid of potential evidence; and, not least, for your own sake. If you docilely followed these instructions, you would sacrifice your personal and professional integrity, prostitute yourself for job security and advancement, and risk your very soul. By doing what is right, you will reaffirm your commitment to justice, confirm your integrity, and preserve your hope of salvation.
Appealing Klane’s decision to others managing the firm, if that becomes necessary, will involve an additional risk, but it will be required not only by the same set of values but by the good of the law firm itself. As an associate, you owe your loyalty to the firm more than to Klane. He happens to be your supervisor, but his misconduct will not be in the firm’s true interest. Finally, the same set of values requires you to warn him and, if necessary, others managing the firm that you will report them for professional misconduct, and to carry out that threat if they do not heed it.
Given the seriousness of what is at stake for you, I expect that you will ask others, such as your former law professors or fellow students, for advice. Almost certainly some, and perhaps most or even all, will say that you need not go so far as to threaten to report professional misconduct, much less carry out the threat, since such reports are rare indeed, while misconduct of various sorts is quite common. What I have advised you to do is seldom done. But that does not show that the advice is mistaken or asks too much of you. Rather, it points to a moral defect pervading all the professions and making their efforts at self-regulation weak and ineffective. The members of each professional community tend to overlook, tolerate, and even conceal one another’s professional misconduct rather than admonish one another, report misconduct, and work together in enforcing sound norms of professional performance.
There are several reasons for this. First, practicing a profession focuses attention on the multitude of activities that are necessary means and distracts attention from the profession’s overarching end. Justice is the end to which all lawyers should commit themselves on entering the legal profession; as officers of the court, they should prefer that good even to a client’s interests incompatible with it. But if professional commitment weakens and justice becomes peripheral, legal practice easily becomes a game in which colleagues’ rule breaking seems at worst foolishly risky. Second, anyone who attempts to enforce standards is vulnerable to one or another form of retaliation by wrongdoers and those with whom they have important common interests. Third, people in the same field share a common point of view, easily put themselves in one another’s shoes, recognize their own deficiencies, and so are reluctant to judge others: There, but for the grace of God (or, perhaps, my good luck), go I. Fourth, and perhaps most important, comradeship motivates all professionals, more or less strongly, to be lax about colleagues’ misconduct. Members of a professional community are comrades, sharing in the enterprise of the profession, with its common interests and challenges. This community is a genuine human value, and it engenders remarkably strong emotional bonds, which motivate members to protect one another, especially against threats perceived as coming from outside the group. To the morally immature, moreover, rules of conduct always seem to be extrinsic impositions; and, unfortunately, all of us are more or less morally immature. Thus, just as children detest tattletales, so professionals take a cool view of any colleague who informs on others’ professional misconduct and are likely to make him or her a pariah.
Someone might argue that the custom of not reporting professional misconduct has nullified the rule requiring reporting and made it a dead letter. Customs often do modify rules, but a rule grounded, as this one is, in a moral obligation remains valid despite violations, no matter how frequent. Therefore, there can be a grave obligation to report professional misconduct in this case even though many, if not all, of your mentors and peers probably will advise against doing so.
There are many reasons why members of every professional community fail mutually to enforce standards of conduct, but none provides the slightest justification for laxity.
397. See American Bar Association, Model Rules of Professional Conduct (1993), Rule 3.4 (a).