 A new device registers the radio station that a shopper is
listening to when she enters a mall parking lot. Snooping inside the privacy of a car
sends chills down my spine, just like the disquietude that occurs when some stranger is
uploading my MP3 files on Napster (sorry, it is an addiction). Personal privacy may be the
single most important issue of our era. The public assumes that we lawyers (as
gatekeepers) will protect their privacy from improper intrusion. However, if we do not
protect our own privacy, how much confidence will the public have in the legal profession’s
ability to protect theirs?
Discipline is designed to protect the public, maintain high
professional standards, and respect for the judiciary, Garlow v. State Bar (1982) 30
Cal.3d 912. Still, lawyers are disciplined for conduct absent any client involvement,
where fiduciary duties are not implicated, and for purely personal or private behavior. In
a famous case, a woman was disciplined for too many cats and too much garbage on her
property. Others have been disciplined for motor vehicle or building code violations.
Lawyers have been disciplined for harassing telephone calls to a former lover/spouse,
domestic violence, and consensual sexual encounters with a court clerk, all which fall
under the rubric of “fitness to practice.” (ABA Model Rule 8.4)
Some out-of-state prosecutors believe that discipline can be used to
make us morally fit or “better.” They don’t hesitate to use the rules to
coerce politically correct behavior. Nevertheless, when lawyers are sworn in, they do not
relinquish their rights to be human beings, and they still participate in the grand parade
of life, blemishes intact and foibles included.
Lying, deceiving, or massaging the truth to a federal judge is
deplorable, disciplinable and really dumb. If President Clinton has a provincial
definition of “sex,” and as a party-litigant demonstrates an astonishing absence
of judgment, should he be disbarred for his bewildering beliefs? Maybe an office holder
has higher duties, as a lawyer and an elected official, like legal specialists, with
enhanced duties of care due in legal malpractice. As a profession, should we allow
ourselves to be homogenized and pasteurized through discipline, so that we can no longer
think artistically to fashion a creative pleading to vindicate the rights of a Buick owner
named McPherson?
How are we going to deal with the fact that most of our socially
laudable goals of the last decade, such as the elimination of bias, civility and
diversity, all seem to segue into the intersection of discipline for private conduct or
impure thoughts? A woman’s exercise of choice once was illegal and one of our
presidential contenders does not support choice. If he is elected and the law changes,
someday a woman’s exercise of choice may be illegal again, and some would say it is
now immoral. Yet, do we want to discipline lawyers for that most personal private
decision?
 Diane Karpman can be reached
at 310/887-3900 or karpethics@aol.com.
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