The Mandate to Stand Above Reproach
The mandate to stand above reproach affects an attorney’s obligation to the ethics governing client communication, professional representation, and legal expertise. The American Bar Association’s (ABA) Model Rules of Professional Conduct (MRPC) enumerates specific criteria to ensure a state of routine consistency both on and off the courts. The MRPC depicts the mandatory obligations expected of each lawyer, while offering suggestions to bolster a fortified image of sustainable legal practice. Christians have inherited identical Scriptural obligations correlative to the ABA’s expectations written in the MRPC. America is built on the foundation of truth, and honest civic representation; whose values are enumerated in the U.S. Constitution. The Sixth Amendment to the U.S. Constitution guarantees each American citizen the right to “have the assistance of counsel for his defence;” while §1.3 of the Fourteenth Amendment features a Due Process Clause, guaranteeing the unabridged privileges and immunities of the citizen of the United States; including life, liberty, and property, alongside the due process of law; and equal protection of laws within each jurisdiction, (Congress). Professor James Ryan of Virginia Law Review wrote in 2013 that; “[m]any, including prominent scholars like Professors Akhil Amar and Jack Balkin of Yale Law School, also agree that the original public meaning of the constitutional text must be the starting point in constitutional interpretation,” (VirginiaLawReview). Many jurists today wish to reinterpret the meaning of law, adjusting it to complement contemporary culture. For liberty to exist the inversion must occur; contemporary culture must acknowledge eternal objectivity, and inherent morality, to operate above reproach.
The Eleventh Edition of Black’s Law Dictionary defines the term reproach as “[c]riticism, blame, or disapproval;” while Vine’s Complete Expository Dictionary relates the word reproach to defamation; disgrace; dishonor; insolence; revile citing Matthew 5:11; Romans 15:3; Timothy 3:7; Hebrews 10:33; Luke 11:45; and Peter 4:14, among others; (Garner, B., p. 1558; Vine, W.E., p. 527). Distinguished Professor Nathan M. Crystal writes that “[i]ssues of professional responsibility pose some of the most difficult problems that lawyers face in practice,” (Crystal, N., p. 1). Crystal asserts that “the violation of these rules is not itself a basis for malpractice liability. Model Rules Scope ¶20,” (Crystal, N., p. 76). Therefore, an attorney existing above reproach denotes one that cannot be considered for blame; the lawyer is expected to hold a blameless standard of professional conduct by both the public, the American Bar Association, and the Courts.
Good Faith and Limited Liability
The lawyer-client relationship is described as uberrima fides, meaning “the most abundant good faith”. 2 Corinthians reminds us of God’s overflowing abundant grace, given to us by faith, so that we may always have everything we may need, to achieve success in our good works. This fiduciary duty to the client is imperative to mainintaing a state of professionalism in the field of jurisprudence. The American Bar Association has incorporated safeguards to inhibit liability for malpractice; Rule 1.8(h)(1) “prohibits a lawyer from entering into an agreement prospectively limiting the lawyer’s liability unless the client is independently represented,” (Crystal, N., p. 76). Justia states, “[i]n many cases, an attorney chooses a strategy in good faith, and at the time this strategy is chosen it is reasonable,” (Justia). It remains the duty of the lawyer to self-regulate their actions, in accordance with the expectations of the American Bar Association (ABA).
ABA Model Rules 1.1 and 1.2(c) display competence and scope of representation and allocation of authority between client and lawyer. Model Rule 1.3 considers a lawyer’s diligence; his obligation to commit to serving the client’s needs with dedication, zeal, and candor. The term candor is defined by Black’s Law Dictionary as “the quality of being open, honest, and sincere; frankness; outspokenness;” while diligence is clarified to be “[s]teady application of one’s business or duty,” noting its derivation from Roman-law diligentia; (Garner, B., pp. 255, 573).
The Supreme Court established precedence for what exactly constitutes an attorney’s diligence (named effective counsel) in Strickland v. Washington, 466 U.S. 668 (1984); whereby the Court stated, “[t]he appropriate standard for ineffective assistance of counsel requires both that the defense attorney was objectively deficient and that there was a reasonable probability that a competent attorney would have led to a different outcome,” (Justia). As the Apostle Paul scribed of effective counsel, attorneys are reminded not to stretch themselves beyond their own measure, while avoiding boasting over worldly achievements, (2 Cor 10:13-15). The Strickland test asks if the attorney was “reasonable considering all circumstances;” Katerina Lewinbuk states that “unprofessional conduct damages credibility,” (Gillers, S., p. 173; Lewinbuk, K., p. 18).
ABA Model Rule 1.6 designates the lawyer’s obligation to confidentiality of information; this obligation for confidential client communication is “limited to legitimate lawful conduct compatible with the very nature of the trial as a search for truth,” writes Lisa Lerman, Professor of Law at the Columbus School of Law, (Lerman, L., p. 660). Nathan M. Crystal writes that “[t]hus a rule of confidentiality is more likely to prevent harm than a rule of disclosure,” (Crystal, N., p. 137). On professional malpractice, Lerman writes, “[a]ny client injured by a dishonest lawyer may sue the lawyer in tort for fraud or for breach of the lawyer’s fiduciary responsibilities to the client,” (Lerman, L., p. 319).
Confidentiality and Conflicts of Interests
Model Rules 1.7 and 1.8 demonstrate an attorney’s obligation in both recognizing and handling conflicts of interest that may arise in the field. Crystal writes, “[c]onflicts of interest are among the most common problems that lawyers face in practice,” (Crystal, N., p. 213). The ABA has developed specifically designated Model Rules to govern each particular conflict; Model Rule 1.7(a)(1) governs direct adversity conflicts, whereas Model Rule 1.7(a)(2) governs material limitation conflicts, (Crystal, N., p. 213). Despite an attorney’s obligation to privacy, “[r]evelation of confidences is allowed if needed to defend the lawyer against any allegation of misconduct,” (Lerman, L., p. 221). Model Rule 2.1 depicts the lawyer’s obligation as an advisor, whereby communicating candid advice; while Rule 2.3 represents an attorney’s ability to evaluate for a third party. The Apostle Mark scribes a reminder by His Holy Spirit of the most important Commandment “Love the Lord your God with all your heart, with all your soul, with all your mind, and with all your strength. The second is, “Love your neighbor as yourself. There is no other command greater than these;” Mark expounds writing “[a]nd to love him with all your heart, with all your understanding, and with all your strength, and to love your neighbor as yourself, is far more important than all the burnt offerings and sacrifices,” (12:30-31, 33; CSB).
Attorneys must remember that their neighbor is he who shows mercy, therefore all clients who seek justice through implementing the skills of a lawyer. The Biblical mandate decrees the same principle that, the lawyer must “[b]e alert and of sober mind. Your enemy the devil prowls around like a roaring lion looking for someone to devour. Resist him, standing firm in the faith, because you know that the family of believers throughout the world is undergoing the same kind of sufferings,” (1 Peter 5:8-9; NIV). Confidentiality requires full disclosure to the client in the case of conflicts of interest; whereby a waiver can be produced as a resolution.
Honesty and Self-Regulation
Honesty is the cornerstone of impartial jurisprudence; and achieving justice both on and off the court. Attorneys must consistently honestly consider their decisions and self-regulate their actions; ensuring a commitment that the pursuance of truth remains evident through all endeavors. A lawyer walks a path of righteousness, consistently invigorating his identity with the means for client confidentiality and whose representation resembles inherent objectivity.
Model Rules 4.1, 4.2 and 4.3 disclose the duties a lawyer holds in speaking with nonclients and those represented by alternative counsel. Rule 4.1 declares that an attorney must be honest and accountable for his statements; whereas Rule 4.2 discusses communication about the subject of representation with a person represented by another lawyer in the matter, (ABA, p. 117). Conversely, Model Rule 4.2 comment [4] “says only that a lawyer is not prohibited from advising a client concerning a communication by the lawyer’s client with a represented nonclient,’” (Gillers, S., p. 77).
An attorney’s commitment to be above reproach means avoiding engaging in transactions within these grey areas; those who get too close to the line can tarnish their public image by proximity, without themselves committing a violation. The attorney’s level of honesty is determined by external observation and public word of mouth, not by that of his own accord; the attorney must ensure to remain compliant to the law; best representing the interest of their client; and ultimately attain justice.
The Old Testament notes the importance of transparent privileged communication, as His Holy Spirit writes; “[a]nd they said to Moses, ‘You speak to us, and we will listen. But don’t let God speak directly to us, or we will die!’” Exodus 20:19 (NLT). This principle is restated in Deuteronomy whereby the Lord decrees “[y]ou shall not give false testimony against your neighbor,” Deuteronomy 5:20 (NIV). The New Testament reflects these inherent objective principles, as the Apostle Paul scribed through God’s Holy Spirit to the people of Corinth; an epistle of love, stating “[i]f I speak in the tongues of men and of angels, but have not love, I am a noisy gong or a clanging cymbal. And if I have prophetic powers, and understand all mysteries and all knowledge, and if I have all faith, so as to remove mountains, but have not love, I am nothing. If I give away all I have, and if I deliver up my body to be burned, but have not love, I gain nothing,” (1 Corinthians 13:1-3; ESV). Paul reiterates this to the Church of Colossae in Colossians scribing “[b]ut now, put away all the following: anger, wrath, malice, slander, and filthy language from your mouth. Do not lie to one another, since you have put off the old self with its practices and have put on the new self. You are being renewed in knowledge according to the image of your Creator, (Colossians 3:8-10; CSB).
Accurate Testimony
Lawyers are barred from producing or sustaining false testimony; Model Rule 8.2(a) asserts that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth as falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. Jesus warns us against bearing false witness, highlighting the importance of an honest testimony; whereby Matthew scribed, “[b]ut those things which proceed out of the mouth come forth from the heart; and they defile the man,” Matthew notes of “evil thoughts” and bearing “false witness,” among other blasphemies, (Matthew 15:18-20; KJV).
Model Rule 8.3, dubbed by Thompson Reuters as the Snitch Rule; is designated to reflect a lawyer’s duty to place objective law above subjective comradery; should a lawyer gain knowledge that a violation has occurred or an issue that raises a substantial question, he is obliged to “inform the appropriate authority,” (ABA, p. 160). Despite Model Rule 8.3’s call-to-action, it is superseded by Model Rule 1.6 whereby the client-lawyer communication retains its confidentiality.
The Attorney as an Advocate
On legal advocacy, ABA Model Rule 3.1, Meritorious Claims and Contentions; depicts the importance of consistently merited claims; the Apostle Paul scribes that, “[f]or by the merit of observing the law no one earns the status of being declared righteous before God, for it is the law that fully exposes and unmasks the reality of sin,” (Romans 3:20; TPT). A lawyer will be judged for their statements both on and off the court, therefore as representatives of objective truth, the lawyer should ensure that every claim is thoroughly researched and well merited before dispensing it on public record; or reporting information to any other individual. Lewinbuk asserts that “a lawyer who behaves with civility is a more effective advocate, [than one opposed to remaining polite and agreeable],” (Lewinbuk, K., p. 16).
Model Rule 3.3, Candor Toward the Tribunal; and Model Rule 3.4, Fairness to Opposing Party and Counsel; express the attorney’s obligation to exalt candor and transparency above convenience and personal preference, preserving the client’s interest and maintaining confidentiality. The Apostle Peter reminds us of this principle, scribing through His Holy Ghost; the importance of resilience and endurance during seasons of tough circumstances, (1 Peter 2:20-21; TPT).
Solicitation With Integrity
Model Rule 7.1 governs all communications, including advertising. The primary focus of the section is that a lawyers statements made should be truthful. The Apostle Paul writes in Corinthians “but as servants of God we commend ourselves in every way: by great endurance, in afflictions, hardships, calamities, beatings, imprisonments, riots, labors, sleepless nights, hunger; by purity, knowledge, patience, kindness, the Holy Spirit, genuine love; by truthful speech, and the power of God; with the weapons of righteousness for the right hand and for the left; through honor and dishonor, through slander and praise,” (2 Corinthians 6:4-8; ESV). Lewinbuk notes that “[t]he coverage of Rule 7.1 extends into Rule 7.2, which governs lawyer advertising,” (Lewinbuk, K., p. 57). Model Rule 7.2 discusses public communication as a means of advertisement, including listing the lawyer’s areas of specialization; denoting of honest representation as a requirement.
Model Rule 7.3 governs solicitation of clients for “communication on or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonable should know needs legal services in a particular matter,” (ABA, p. 153). Attorneys must be conscious of their own advertisements, and claims of specialization, thereby judging their actions as observed from an external account. The lawyer holds a duty to be knowledgeable in a particular area; while acknowledging his own limitations. Model Rule 7.6 bars communication for employment through political appointments that have received contributions from the lawyer or firm itself. Similarly, Model Rule 8.4(c) interprets the meaning of misconduct to be the engagement of “conduct involved dishonesty, fraud, deceit, or misrepresentation,” (ABA, p. 161). Attorneys cannot serve money and justice; for their pursuit must be dignified, directed towards God; and offer transparent evidence to support their case, (Matthew 6:24; Luke 16:13).
From Initiative to Leadership
ABA Model Rules 5.1, 5.2, and 5.3 discuss a lawyer’s obligation as or governing subordinates; alongside the enumerated duties to govern communication within the law firm and between the attorneys themselves. Attorneys must govern their actions and self-regulate themselves at all times, as they represent their subordinates, nonlegal staff, and the law firm; attorney Martin A. Frey writes that a “legal assistant’s conduct is guided by bar associations’ codes of professional responsibility and rules of professional conduct,” (Frey, M., p. 35). On the initiating leadership, the Apostle John writes, “[w]hen the Spirit of truth comes, he will guide you into all the truth, for he will not speak on his own authority, but whatever he hears he will speak, and he will declare to you the things that are to come,” (John 16:13; ESV).
Model Rule 6.1 enumerates the ABA’s suggestion to engage in voluntary pro bono publico service; noting that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year,” (ABA, p. 139). The physician Luke denotes our inheritance of obligations; decreeing we must “help the weak by laboring like this…it is more blessed to give than to receive,’” (Acts 20:32-35; CSB). Luke scribes from His Holy Spirit, when Jesus was asked by an unnamed man declared to be an expert in religious law, the meaning of the word neighbor in the law of Moses, whereby the Lord decreed “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself,” (Luke 10:27b; KJV). Jesus responded by stating that the meaning of the term neighbor is defined as “[h]e who showed mercy on him,” (Luke 11:37b; NKJV). Lawyers should first strive to love the Light of the Lord, and implement impartiality to attain mercy for the actions of their client; this represents the purpose of law, not self-gratification and the accumulation of wealth; success is a byproduct of impartial justice. The attorney’s duty to instigate and maintain leadership, without forcing adherence, correlates with Scripture in that Christians are commissioned to reflect the image of Jesus, (2 Cor 3:18). The lawyer bears the duty to represent the field of jurisprudence; maintaining a state of impartial justice; and providing educational, transparent, and private communication to the client.
Case Law
In Re Grand Jury No. 21-1397 presented the Courts with the question of “[w]hether a communication involving both legal and non-legal advice is protected by attorney-client privilege whereby obtaining or providing legal advice was one of the significant purposes behind the communication,” (SupremeCourt). On October 3rd, 2023, the Court announced they had reached a verdict, “dismiss[ing] certiorari as improvidently granted,” (Justia). ABA Model Rule 1.2(c) allows a lawyer to limit the scope of representation when “reasonable under the circumstance and the client gives informed consent;” while Model Rule 1.2(d) deters fraud, (see Rule1.0(d)), stating attorneys must implement a “good faith effort.” The ABA denotes their omission of dispute resolution strategies, adding that “this Rule does not prescribe how such disagreements over the means used to accomplish an objective are to be resolved,” (ABA, pp. 14, 15). The Court declared that “[t]he very low standard of what constitutes acceptable representation may derive in part from the woefully overstretched, underfunded public defender system” (Justia). Strickland determined “whether the counsel’s assistance was effective within the meaning of the Constitution,” (Crystal, N., p. 68).
An attorney’s ethics and diligence in communication is imperative; in the case of a single client hiring multiple counsel, or an attorney representing joint-clients; there has been legal precedence set forth through previous rulings. In re Santa Fe International Corp., 272 F.3d 705 (5th Cir. 2001) defined the Common Interest Rule whereby a client hiring multiple counsel applies to pending litigation, (Gillers, S., p. 202, 203). Communication between multiple clients should be explicitly clarified between both clients prior to official representation; precedent was established by the Court in A. v. B., 726 A.2d 924 (N.J. 1999), to “diminish the needs for future litigation,” (Gillers, S., p. 204). The lawyer can preclude these dilemmas by drafting a contract prior to representation when working with more than one party. Justice Marshall wrote that, “I believe…that whenever two or more defendants are represented by the same attorney the trial judge must make a preliminary determination that the joint representation in fact suffered,” (Gillers, S., p. 172).
Attorneys are reminded by Paul in his epistles to Corinth, “[f]or we can’t do anything against the truth, but only for the truth. We rejoice when we are weak and you are strong,” (2 Corinthians 13:8-9; CSB). Lawyers are obligated to represent the client to the fullest extent of their abilities; while having to discern in real-time right from wrong under trying circumstances.
In Gideon v. Wainwright, 372 U.S. 335 (1963) set precedence for client representation; whereby the judge decreed “[t]he Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in state court by way of the Fourteenth Amendment,” (Justia). In Gideon v. Wainwright, 372 U.S. 335 (1963) the court declined to appoint Counsel to represent the accused, stating “[u]nder the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense;” stated the court, denying him counsel, adding that; “the Fourteenth Amendment creates a right for criminal defendants who cannot pay for their own lawyers to have the state appoint attorneys on their behalf,” (Justia). Since 1963, the Supreme Court has held it to be consistent with the U.S. Constitution; requiring state courts to appoint attorneys for defendants who cannot afford a counsel of their own.
Conclusion
The Christian obligation to stand above reproach is conducive to jurisprudence in that collective justice is contingent on the individual’s duty to self-regulate. Lisa Lerman concludes, that even “a small decision could have substantive consequences,” (Lerman, L., p. 334). Christians continue to inherit the generational responsibility to bear a consistently dignified image of Christ; living to preserve and further our personal relationship with Jesus; as the judgment of others is inevitable. God’s willingness to co-labor and partner with each of His children allows the attorney to gain a firsthand experience of the totality of zealous commitment divinely invoked through the Lord’s Holy Spirit both on and off the court. An attorney can fulfill this Scriptural obligation to stand above reproach by applying the methodology accumulated in faith and worship; and the reapplication of those principles and objective morals to worldly conflict and dispute; promoting an impartial state of justice.
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