Legal Ethics

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The Making of an Ethics Lawyer

By William Wernz posted 02-05-2019 12:42


Note:  A version of this blog first appeared in Minnesota Lawyer.  The blog adds to that version identifications of mentors, colleagues and friendly opponents without whom I would have achieved little.

You could say my career as an ethics lawyer began at St. Thomas College, where I studied philosophy, and St. Thomas Academy, where I had a clerical job.  My duties included posting demerits for cadets’ offenses to master cards.  Too many demerits meant suspension.  One day I asked myself, “Does the offense of ‘unshined buttons’ warrant suspension, even where the offender leads a life of constant danger?”  I decided not, without pausing over my own authority to answer such questions.  A fair number of cadets never knew, but they owed me, some big time.  The principle I learned was, “Occasionally, a person should rise above principle.”

Philosophy, an interest in social ethics, and the spirit of the mid-60s led me to volunteer work two summers - tutoring in a black housing project in New Orleans and doing voter registration in South Carolina.  I also was on the Selma – Montgomery march.  I saw the “Whites Only” signs, and experienced the taunts and violence of those who hated racial equality.  I learned several principles.   There really is evil in the world.  Moral force can overcome evil, with the strong arm of laws like the Civil Rights Act and Voting Rights Act.  There are times to stand up and be counted.

Philosophy included ethics, and both led to Religious Studies, a Ph.D., and (1970-74) college teaching, including ethics courses.  I loved teaching, but the path to success involved a lot of solitary research and publications that only a few would read.  Law school beckoned.  The aftermath of Watergate – with all those disbarred lawyers including the president and attorney general – meant legal ethics was now in vogue.  I was blessed to be a student of Tom Shaffer, who became a luminary in legal ethics.  Tom used literature to guide us to the deep things in lawyering.

Back to the Twin Cities in 1977, I was hired by a small firm, Broeker & Bachman.  Before I arrived, Walt Bachman decamped to become Director of the Lawyers Board.  Fortunately, Walt would visit and regale us with stories of lawyers doing colorful things.  Walt told me that when he was appointed Director, Chief Justice Sheran urged him to be aggressive, “The Court can also curb you if you go too far, but if we don’t know about alleged misconduct, we can’t do anything.”  These words appealed to me and in 1981, I became an Assistant Director. 

My caseload of ethics complaints included two involving lawyers perpetrating business frauds.  How does one investigate fraud?  I figured it out as I went along.  Being hot on the trail could be exhilarating - the pure, unholy joy of finding that the watermark of page five of a questioned document differs from that on every other page!

I soon encountered real depravity and drama.  One lawyer induced his boyhood friend, a quadriplegic, to put his settlement funds into a wholly bogus investment.  The same lawyer induced two other guys, who were not paralyzed, to make a similar investment.  When I later asked the guys if they knew how the lawyer suffered fractured fingers, hand, and wrist, they laughed and replied, “It’s amazing how far back the human fingers bend when they have to!”  Legal ethics meets the underworld!

Soon I was trying cases against lawyers represented by the likes of Jack Nordby, Rick Solum, and Ron Meshbesher himself.  I learned a lot by watching my betters, by noticing how they exploited my miscues, and by talking collegially with them.  Nordby published one of the few genuinely scholarly Minnesota articles on attorney ethics.  He also compiled lawyer discipline cases, using a fountain pen and leather-bound book.

My first case of real note arose when a lawyer, Williams, told opposing counsel at a deposition, “Don’t use your little sheeny Hebrew tricks on me, Rosen.”  Williams was the reigning toughest S.O.B. around.  I interviewed Williams, who demanded to know if I was a Jew. I was dismayed to learn there was little or no disciplinary precedent.  I issued charges, convinced that Williams needed discipline and the profession needed precedent.  After all kinds of litigation, he was suspended. 

In the Williams case and others, I came to understand how important first principles are to the professional responsibility system.  I first understood this from John Levine, a Lawyers Board member, who publicly objected to a proposed stipulation between the Board on Judicial Standards and a judge, who was accused of dishonesty.  The stipulation fudged the issue. John wrote that dishonesty must be determined before the court could consider a disposition.  An ethics lawyer needs clarity and courage, not just expertise and technique.

From 1985 to 1992, I served as Director of the Office of Lawyers Professional Responsibility.  I had to learn the administrative, political, and personnel sides of attorney ethics. I had invaluable guides and support.  When I was appointed, the Supreme Court asked whether there were any special resources I would need for the job.  I replied that it would not be surprising if a lawyer of influence sought favor from the Board or the Court, bypassing the Director.  The Court assured me there would be no such favor and there never was. 

Board Chair Bob Henson was a master at shaping issues and approaching people.  When I was urged to hire an assistant who would concentrate on administrative matters, Bob said, wisely, “How much is there to administer anyway?”  Bob’s successor John Levine insisted on clarity and showed great care for others.  If a staff member suffered a problem, John would send a card.  Janet Dolan excelled at getting the most from people by keeping them both happy and challenged.  Supreme Court liaisons Glenn Kelley and John Simonett were the wisest, most experienced of advisors.

Recruiting and fostering the growth of staff, lawyers and others, was a pressing concern.  There had been considerable turmoil and turnover.  I started with what is likely the youngest, least experienced staff ever at the Board.  Almost all of them stayed, grew, and flourished.  Several became leaders in Minnesota legal ethics – Ken Jorgensen, Marty Cole, Pat Burns, and Tom Vasaly.

I began writing a monthly Bench & Bar column.  This required having something to say.  Self-referential columns about discipline activities, new rules, and the like were good teaching opportunities, but did not explore the richness of legal ethics.  To do that, I had to become a scholar. 

My work as an ethics trial lawyer had left little time for me for wider learning.  Fortunately, at the beginning of my tenure, the first two excellent national legal ethics works were published - Charles Wolfram’s Modern Legal Ethics and Hazard & Hodes Law of Lawyering.  Wolfram’s book became my Bible and also became the precursor to The Restatement of the Law Governing Lawyers.

One responsibility of a Director is to establish and follow consistent policies of what constitutes a rule violation, which rule violations should be charged, and what levels of discipline are appropriate.  Another responsibility is to work closely with the Lawyers Board and MSBA.  In 1985-86, the Court appointed the first outside review committee to evaluate the professional responsibility system and recommend improvements.  I found these policy-making activities challenging and rewarding.  I benefited from the strong Minnesota tradition of collegial efforts by the Board, the MSBA, and the Court.

In the late 1980s, Minnesota became a national leader on two important subjects.  First, Minnesota was one of the first states to adopt a rule providing for discipline for harassment on grounds of sex, race, religion, sexual orientation, etc.  We applied the rule judiciously but firmly, and it largely eliminated at least the grosser forms of oppression.  Second, Minnesota was a leader in adopting a rule allowing a lawyer to disclose confidential information when a client used the lawyer to commit a crime or fraud.  Minnesota outpaced the ABA by decades. 

In the late 1980s, the number of cases and precedents grew.  Fairness is essential, fairness requires consistency, and consistency requires knowledge management.  I drafted, and the Board approved, the first edition of the Lawyers Board Panel Manual.  The Manual was regularly used to promote consistency for years, but unfortunately is now badly out of date.

In 1992, I left the Board, to become the first Ethics Partner at Dorsey & Whitney and the first Minnesota lawyer to have such a position full time.  The first challenge was complexity.  How did conflicts principles apply in a multi-party securitization?  (I had to ask what a securitization was.)  Intellectual property was a burgeoning field with little ethics guidance and my last science course was in 1963.  I knew Minnesota law, but Dorsey had offices in New York, D.C., and London.   What were their rules and practices?

I began providing responses to complex questions.  Two issues arose.  First, some responses involved principles that should be applied throughout a department or even the firm.  I took on shared responsibility for updating the firm’s policy and procedures manual.

Second, how should I save and organize the work product for future use, to ensure efficiency and consistency?  Two Dorsey lawyer- computer mavens took me under their wings.  I created Word outlines for each ethics rule, with variations by state.  I also created outlines for related substantive law areas, such as the attorney-client relationship and the law of privilege.  I religiously saved my work and the work of other lawyers.  I tapped third party sources. Little-by-little, the “Dorsey & Whitney Ethics & Loss Prevention Library” grew.

As much as I learned at the Lawyers Board, the horizons of professional ethics were rapidly expanding.  I began advising and representing lawyers outside Dorsey, as well as a few judges in dealings with the judicial board, and applicants in bar admission character and fitness matters.  I represented fiduciary entities in breach of fiduciary duty litigation.  I taught the PR course at local law schools.  I also worked closely with Tom Tinkham on Dorsey loss prevention matters, learning malpractice law.  I’ve been fortunate to be able to supplement my ethics knowledge with knowledge of related fields.

Consultations with colleagues in Minnesota and nationally greatly broadened my horizons.  David Sasseville, Chuck Lundberg, Ed Cleary, Kent Gernander, Ken Jorgensen, and Eric Cooperstein have been great resources.  I joined the national Association of Professional Responsibility lawyers in 1992 and served one term as its president.  APRL provided resources in many states, colleagues at the highest levels of the profession, and considerable bonhomie. 

In 2009, I turned 65.  I began retiring from Dorsey and I began writing my magnum opus, the online treatise Minnesota Legal Ethics. Dorsey generously agreed that the materials I compiled for its benefit could be shared – in expanded, improved, updated form - with all.  Tim Groshens and several editors provided excellent support and publicity.

In 2011, I was appointed to the Board on Judicial Standards.  My lifelong learning about ethics continues.  Again, I have tried to give back.  The Board’s website has my outline, Minnesota Judicial Ethics.

The Minnesota Supreme Court is the background of most of what I have done as an ethics lawyer.  The Court has consistently supported the highest standards for the professional responsibility system.  The Court’s goals and practices of fairness, openness and excellence have been necessary conditions for my career.

The German proverb, “Ein Mensch ist kein mensch” means, “A man alone is no man at all.”  In all these years, I became an ethics lawyer in a community of lawyers and judges with similar interests.  

In closing, I encourage young lawyers who have an interest in ethics to consider a career in legal ethics.  Most of the current leaders in the field have gone gray or bald, and we need heirs.