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“These days, it seems one must see it in black and white in order to know how to act as a gentleman in the practice of law. Most of what one finds in these long and complicated Rules is nothing more than what decent people do to both their clients and their adversaries.” — Thomas S. Jackson, 1988 “I appear to ask for mercy and understanding for the incompetent. You must understand that we may be competent on Monday and miss a hearsay objection on Tuesday.” — Jacob A. Stein, 1981 “God bless us, every one.” — Tiny Tim, c. 1843 ‘Tis the season of “Peace on Earth, Good Will toward Men,” a time when we reflect on what’s good and bad about our personal and our professional lives and resolve to improve in the New Year. Accordingly, I offer here some reflections about ethics in general and a few hopeful resolutions for the future. FOR THE PRACTICING LAWYER A founding partner of my firm, Thomas Searing Jackson (not the “Microsoft judge,” but his father), often chafed under the proliferation of rules, all of which were, in his judgment, more and more verbose renditions of “what decent people know to do.” “We live in an age overwhelmed by printer’s ink,” my late partner would say. “Most decent people know what’s right.” Or: “If it stinks, it stinks, even if every authority from Hammurabi on down says it’s OK.” Those of us who are his proteg�s, finding ourselves confronted with moral or ethical challenges, have asked ourselves innumerable times in the past 30 or more years: “What would Jackson have done?” He would, we know, have done the decent thing, and that has very often helped us far more than any written rules. So, ye lawyers, remember that the rules are not there to be got around. This is not a game. They are there to protect your clients, your adversaries, and the legal system. And basically, they call upon you to do what you probably know in your gut is the right thing. FOR THE COMMITTEE ON UNAUTHORIZED PRACTICE You are the bar’s defense against the incompetent and the charlatan. You deserve our respect and admiration. But you might do well to bear in mind that the strictures against unauthorized practice, specifically Rule 49 in the District of Columbia, have as their primary focus the protection of the public generally and clients in particular. They are therefore designed as much to get good lawyers into the bar as to keep the bad apples out. I speak with some feeling on this point, having served eight years on the committee, six of them as chair, and having later had a major role on the committee that rewrote Rule 49 in its present form. That committee knew at the outset that many estimable lawyers, some of them from fine firms, somehow never get around to being admitted to the bar of the jurisdiction in which their practice is principally concentrated, and that this phenomenon is for a host of reasons particularly acute in the nation’s capital. But the solution is not to condemn these lawyers to some legal limbo, but to sensitize them to their situation and get them into the Washington, D.C. Bar. FOR THE COMMITTEE ON ADMISSIONS You are also guardians at the gate. You protect the profession from invasion by legal wannabes who cannot meet our high standards of ability or integrity, or both. But again, some reflection on the real purpose of the rules — the protection of the public — will leaven your enthusiasm for strict enforcement of the letter of each rule. If there has been an inadvertent or even a thoughtless error by an otherwise highly qualified and principled man or woman, would it not suffice to raise the consciousness of the “offender” to a more complete sense of his or her responsibilities upon entry into this noble and learned profession? If the offense is not great, why taint a new lawyer’s birth in the profession with a black mark? FOR THE BOARD ON PROFESSIONAL RESPONSIBILITY AND THE OFFICE OF BAR COUNSEL You have the unenviable task of policing the behavior of those who have gained admission to the bar and responding to complaints from clients who feel they have been ill-used by the justice system. Yet again, the spirit of the season would seem to commend the virtue of discernment. There are plenty of lawyers who falsify evidence and suborn perjury and steal money and ruin people’s lives. They should be punished, and severely at that. But is it necessary to convene an auto-da-f� if the violation is technical and no one has been harmed? If a highway patrolman can let a first offender off with a warning, why can’t you? As the dread Year 2000 stumbles toward an end, we should all give a few moments’ thought to the often dry and academic subject discussed every month in this column. All of us could stand to be a bit more attentive to the rules and particularly to the spirit that animates them. And those whose duty it is to judge how well or ill practitioners have observed those rules might profit by contemplating the quality of mercy. Season’s greetings! James P. Schaller, a partner at Washington, D.C.’s Jackson & Campbell, is a former chair of the Washington, D.C. Court of Appeals’ Committee on Unauthorized Practice. He is a member of the Board of Regents of the American College of Trial Lawyers. His e-mail address is [email protected]

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