Legal Ethics in Black and White: An Interstitial Exploration

As lawyers, we are fond of looking for the “black letter law,” the well-settled, undisputed and clearly articulated rule of decision for application to the facts of our case. So often, however, there simply is no such rule, no clearly delineated guidepost for us to follow or to urge upon a Court as outcome determinative. Rather, the law is mostly neither black nor white, but varying shades of gray, offering some succor and at least partial support to both sides of a dispute. The resolution of the matter thus generally turns upon issues of policy and the vigorous practice of the art of persuasion.

Ethical issues for lawyers may be similarly described, at least structurally. That is, every state proscribes and declares its “black letter” rules to inform and guide the practitioner in the conduct of office, but no matter how carefully articulated, the rules invariably leave gaps in their midst and spaces between themselves: areas which implicate what we might call “white letter” ethics. The difference is this: the absence of clearly defined rules of law energizes the substantive aspects of practice, and engages the fullness of our skills, to the end that a court may rule on our client’s cause. But an ethical issue which falls into the cracks between the rules of professional conduct affects us, personally and directly, and can pose exquisitely poignant and problematic scenarios for the practitioner who, in default of clearly defined ethical norms, must ask herself hard questions about what shall I do? And she may often be compelled to answer those questions alone, at her professional peril, with nothing but her own experience, judgment and personal moral code to guide the outcome.

The purpose of this program is broadly to begin the exploration of those “white” spaces; the interstices between the rules, generally codified in most states as the “Rules of Professional Conduct,” or “RPC’s.” What the exploration of that apparently “blank” space will reveal is that it is not empty at all, but a roiling sea of clashing values, where tidally conflicting ethical principles can and do crash into one another, each having a legitimate claim to our attention and action.  How we choose, then, is as often as important as what we choose. Let the exploration begin...

Learning Objectives:

1. Understand and evaluate the applicable Rules of Professional Conduct
2. Expand and enhance the ethical sensitivity of attending lawyers
3. Develop and apply methods of thinking clearly and consistently about ethical issues