April 4, 2014 President’s Message
Professional Ethics Committee available to answer questions about conduct
by Nancy L. Heilman
Recently, a Pittsburgh lawyer posted a video on YouTube to advertise his criminal law practice. Some people might call this lawyer’s conduct reprehensible, while others might suggest that he is “wet behind the ears.” We have had several people ask if he is a member of the Allegheny County Bar Association and a search of our database reveals that he is not.
In Pennsylvania, lawyers have been permitted to advertise for many years. However, when a lawyer does choose to advertise, she or he must do so within the Rules of Professional Conduct. An ACBA member who has a question about the Rules of Professional Conduct or the Code of Judicial Conduct is encouraged to contact our Professional Ethics Committee.
Upon the request of any member of the ACBA, our Board of Governors, any committee or section, our Professional Ethics Committee gives its opinion on the proper interpretation of the Code of Judicial Conduct, the Rules of Professional Conduct, and the applicability to a particular state of facts not involving questions of judicial discretion or decision.
Members are assigned to serve as duty officers for one month during every year, and commit to taking calls and addressing ethics questions from any member of the ACBA during their respective assigned months. Duty officers advise only about the member’s own conduct and will not give opinions about the conduct of other lawyers or judicial officials. Ethics inquiries should be made to the duty officers that are assigned for a particular month. A list of the officers can be found at www.acba.org/ACBA/Members/Ethics/OfficerAssignments.asp. The officers are committed to preserving the confidentiality of the identity of the inquirer.
Criminal defense lawyers may be called upon to balance clients’ rights, professional ethics, public interests and candor to the tribunal. The YouTube video does not convey any of the moral dilemmas accompanying the need for this balance. Whether the defendant did what he is accused of doing or not, everybody remains legally innocent unless the prosecution can prove them guilty beyond a reasonable doubt.
The most disturbing aspect of the video is the dramatization of the actual, rather than “alleged” guilt, of smiling perpetrators with references to murder, arson, bank robbery and other serious crimes during the portrayal of the commission of crimes. It is hardly a joke to the average citizen that his pocket is being picked. Effective and zealous defense of those accused of committing crimes is not bolstered by misplaced humor that flagrantly ignores the rights of crime victims and impugns a legal system that is based on the rule of law.
ACBA members and the ACBA itself advertise on television, radio, social media and in print in commercials and ads that are professional, creative, informative and effective. These reputable advertisements do not state that “laws are arbitrary,” but rather convey the message that clients can be ethically and appropriately served while not disrespecting the public or calling into question every lawyer’s duty not to make or, if made, correct a false statement of material fact or law to a tribunal.
Creative, professional and effective advocacy enjoys strong precedent in our legal system, dating as far back as the Boston Massacre of March 5, 1770, when British soldiers were accused of murdering five members of the Boston citizenry. In defense of the British soldiers, former president John Adams educated the jury on the law of self-defense, recalling testimony about the citizenry heaving snowballs, oyster shells, clubs and sticks and yelling “kill them!”
Addressing the jury, Adams asked: “Consider yourselves in this situation, and then ask whether a reasonable man would not have concluded they were going to kill him.” Adams closed by stating the law at the time: “If an assault was made to endanger their lives, the law is clear, they had the right to self-defense...”
However, he conceded that if the assault “was not so severe as to endanger their lives...this was a provocation, for which the law reduces the offense of killing down to manslaughter.” The jury exonerated the soldiers of murder. Information on this case can be found at http://www.twyman-whitney.com/history120-121/readings/JohnAdamsBostonMassacreTrials.pdf.
Adams later wrote in his diary about his decision to represent the British soldiers, regardless of adverse public opinion. “The part I took in defense of [the soldiers] procured me anxiety and obloquy enough. It was, however, one of the best pieces of service I ever rendered my country. Judgment of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or witches, anciently.”
Adams used his legal acumen to ask the jury to determine what was reasonable under the circumstances presented through the evidence. He did not say to the soldiers, “Commit murder with impunity; I’ll get you off scot-free.”