All of us in the legal profession make legal decisions. But like everyone else, we are compelled to make moral decisions, not just within our professions, but also in our everyday lives. Depending on one's point of view, these decisions, or choices, may be so insignificant they barely qualify for consideration. The waiter brings you the check with an error … in your favor. What if the amount involves a $1 error, or an omission of $75 for the wine you ordered and drank? Do you point it out? Does the amount matter? Does it matter if the restaurant is upscale Beverly Hills and the waiter is snooty?
Another example. When I bring my car in for service, I invariably have a discussion with the service manager after my car has been "serviced." (Cars are sex objects, right?) The service manager hands me the keys and reminds me of the questionnaire that will be e-mailed to me in a day or so. "Sure would appreciate it if you could check off 'excellent' for all categories."
I notice the car has not been washed and oil seems to be dripping from the undercarriage. But because the service manager fixes the problem with haste, I tell him I will say that he is the best service manager ever. But I will tactfully point out the problems when I fill out the questionnaire.
The service manger seems to simultaneously smile and wince. "If you say anything negative about your service experience, it will reflect badly on me and I could get fired."
"In other words, you want me to lie."
"Oh no," he importunes. "If you feel that way, just do not answer the questionnaire."
So the service manager gets an "A" and one of the technicians (mechanics are apparently a lost profession at car dealerships) gets an "F." But now I am not supposed to answer the questionnaire or lie and say everything was hunky-dory. Should any of us be parties to this faux conspiracy? That I have neither the time nor the patience to answer these questionnaires is beside the point.
I discussed this questionnaire phenomenon with a person I know in the "car business." He opines that the service manager was telling the truth. Too many negative comments on the questionnaires, in fact, will reflect poorly on the service manager, even though his actions may be blameless. The questionnaire results are recorded by so-called independent survey companies. A 99% approval rating for service goes a long way in an advertisement. Unfortunately, my information comes from a source who has extracted a promise from me not to reveal his/her name. Yet, on the few occasions I take the time to fill out such a questionnaire, I have generally not stretched the truth … an admission that maybe I have. I really like the service manager. Moral choices can drive us nuts.
By us, I mean lawyers and judges. Are we not held to a higher standard than others? I pose this question because rules and guidelines for lawyers and judges cover a wider scope of coverage than issues relating to practicing law or deciding cases. In California, when judges are "off the bench," they should still keep judicial ethics in mind. Canon 2 of the California Code of Judicial Ethics requires that a judge "avoid impropriety and the appearance of impropriety in all of the judge's activities." And Canon 4 cautions judges to conduct their "extrajudicial activities as to minimize the risk of conflict with judicial obligations." Would lying fall into that category? I know, it all depends on the lie. But because judges decide credibility issues, Canon 2 should give judges pause now and then.
As I discussed in my last column, the New Jersey Supreme Court ruled that a part-time municipal court judge could not serve in that capacity and be a stand-up comedian in the evenings. The court reasoned that this particular extrajudicial activity, among other things, demeaned his judicial office in violation of certain canons of judicial conduct. I assume the satirical character he created for his comedy act, an obnoxious homophobic bar patron, had something to do with the court's decision.
Judicial service is gratifying and rewarding, but ethical canons necessarily limit our actions. I am not complaining mind you, but lawyers apparently have less formal constraints in their everyday lives. Ethical rules for lawyers generally relate to the practice of law. I particularly like California Business and Professions Code section 6068(b), "To maintain the respect due to the courts of justice and judicial officers." A similar notion can be found in the American Bar Association Canons of Professional Ethics. Canon 1 admonishes lawyers to "maintain towards the Courts a respectful attitude .…"
If we took a random sampling of judges and lawyers and placed them in the earlier scenarios I posed, how do you think they would decide the moral questions? No doubt there would be little difference between the two groups. If judges fared slightly higher on the moral scale, it might be because of their awareness of the judicial canons of ethics that speak to a judge's extrajudicial conduct.
In the next example I offer, we need not refer to canons of ethics. I recently purchased an electronic keyboard and an amplifier at a store that sells those kinds of things. The corporation that owns the store apparently operates under the firm conviction that customers patronizing the store are thieves.
Parcels leaving the store are thoroughly examined, and after purchase, one's sales slip and the items purchased are thoroughly checked against each other by an unsmiling attendant. Yes, I understand, many businesses operate under this assumption. It is a "sign of the times."
My salesperson, who thought I was Methuselah, suggested I purchase an "insurance policy," not to be confused with an extended warranty, on the products I had just purchased. But I asked my 14-year-old salesperson, "Why would I need such a policy when you just told me the products I purchased were durable and well made?" The sales boy patiently replied, "When a new model comes out, you can turn in your old damaged one and get a new one." "But what if it's not damaged?" I asked. The look on his youthful face was one of incredulity. He looked up at the ceiling before responding to the naïve question the elderly gentleman had just asked. "Oh, it is bound to be and then you can get a new one." I expected a gentle pat on the head. And then it all made sense. If you shop at a store that assumes you are a thief, you might as well act with the character of a thief and damage the product to get the newer model.
Most people I know, whether they are lawyers or judges, would pass on the insurance. And how would someone even go about "damaging" an electronic keyboard or amplifier? (Just kidding.)
No matter. This illustrates pervasive cynicism these days about the choices we make or are expected to make.
Why is this is happening? Justice Antonin Scalia offered an answer. In an interview with Jennifer Senior in New York Magazine last month, he unequivocally stated he believes in the Devil. Though I seldom agree with Justice Scalia, I think he has been unfairly ridiculed for his belief. Justice Scalia's Devil is for me a metaphorical concept, but no less real. The Devil represents the tempting shortcuts that are offered on our journey through life. So if we truly value our professions and ourselves, we will take a moment for reflection when we make our choices.