The Preamble to the Model Rules of Professional Conduct acknowledges an inherent limitation of any set of behavior rules: They can never envision or predict all the situations that should invoke the rules. Accordingly, the Model Rules appeal to a lawyer’s integrity or “personal conscience” to fill gaps, resolve ambiguities and conflicts, and serve as an additive layer atop the minimally acceptable conduct decreed by the Model Rules.
The preamble says, “A lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.”
I read this to mean that there is more to being an ethical lawyer than following the letter of the Model Rules. Indeed, the Model Rules are spirited by integrity, and that value envelopes them to assure that lawyers will do right even if the Model Rules are silent or permit less.
Still, lawyers like rules that can be understood and enforced. Principles such as integrity and personal conscience are difficult to define and, therefore, compel within our profession. I recently read a terrific book entitled “There Is No Such Thing as Business Ethics” wherein the author, John C. Maxwell, offers that the Golden Rule should serve as a cross-cultural, well-understood and easy-to-apply integrity guideline.
Maxwell’s work notwithstanding, integrity is difficult to define but easy to spot. I recently had two contrasting experiences that confirm that our profession is elevated by integrity-based practices. The first involved my company. We recently announced a settlement of litigation over stock option backdating that had cost the company hundreds of millions of dollars. A proposed settlement was achieved and, in a press account accompanying the announcement, an unnamed lawyer from one of the multitude of firms involved in the litigation offered the following: “I’m sad that I’ll be losing my retirement annuity.” I wonder what personal integrity paradigm produced that gem. This type of comment renders the proliferation of lawyer jokes completely understandable.
In contrast to that statement, I recently had the occasion to meet a general counsel who personifies integrity. His name is Tom McCoy, GC of Advanced Micro Devices (AMD). Tom and I participated in a CLE session together. Tom described to me how integrity was the rock upon which he counseled his client through business crises, management changes and litigation battles. Tom views the in-house team as the protectorate of the company’s culture and this animates one of his “rules” for his team: Do everything with integrity.
On the role of the general counsel, Tom says, “A general counsel has few boundaries, surveying and counseling across the waterfront of corporate activity. The GC does not set the strategy, although he will cross-examine it and help hone it. The GC is not in charge. He serves as a fiduciary to those in charge. He serves as a lawyer, obviously, but also as a confidante, a professor of common sense, a sounding board, a voice of reason and conscience, a facilitator, a negotiator, a mediator, a protector, a shoulder to cry on (a healer), a truth seeker and a truth teller, a maker and keeper of rules, and above all a lighthouse of values. Whenever necessary, the general counsel is the insistent enforcer of justice. His leadership is prominent, and certainly steadfast, dependable and inspiring. His credibility and integrity are impeccable. … His resources are the armament of the corporation.”
Tom is a role model for the legal profession because his integrity lifts his conduct far beyond that which any set of rules ever could proscribe.