Washington Lawyer - January/February 2022 - 19

LEGAL ETHICS continued from page 14
GET
For example, with respect to my role as an
in-house counsel at an association, Rule 1.13
regarding an organization as a client is important
for client identification. My client is the
Association of Zoos and Aquariums, not the
members of the association. Thus, for example,
in the accreditation process, I can take positions
adverse to a particular member, if necessary,
in order to represent the association's
interest in fair and accurate accreditation
decisions.
As a general matter, the ethics rules apply in
different practice environments.
ML: Before you came to the Association of
Zoos and Aquariums you were at the Legal Aid
Society of the District of Columbia. Are there
unique challenges for legal services lawyers?
For example, with respect to retainer agreements
with clients who are essentially indigent,
or with communicating with clients who may
not have easy means of communication?
JK: Well, there were different challenges, but
they were not ethical challenges. Let me just
give a huge shoutout to Eric Angel, who ran a
great program at Legal Aid, and the numerous
dedicated attorneys there. The challenge
usually is in client communication. You have to
go the extra mile to make sure that your client
really understands what you're saying. Now,
you can deal with language difficulties by using
translators; unfortunately, my Spanish is nonexistent,
but I had so many colleagues who were
fluent that that was not a problem.
The ethics challenges on retainer letters were
never any more difficult with a Legal Aid client
than with a private client. Frankly, the biggest
difference between Legal Aid clients and other
clients is that they are so appreciative of the
help, and it is a pleasure to work with them. It
is also, to some extent, more challenging and
leaves you with more sleepless nights because
their situation is often so desperate that you
feel you have to win.
We're talking about evictions, about losing
custody of a child. We're talking about major
life events and devastating personal consequences.
So, you had to win, and you had to
win all of them. My hat's off to the colleagues at
Legal Aid who did great work when I was there
and are still doing great work today.
ML: Two final questions: First, when you taught
legal ethics as a practicing lawyer, what did you
think was the most important thing for you to
communicate to your students?
JK: Know your local rules. Common sense is
not enough. I [taught] the mandatory course
and nobody wants to take the mandatory
ethics course because they all think of themselves
as very ethical, good people. What they
don't understand is that common sense is not
enough. There are actually rules, and you have
to know these rules, or you're gonna screw up
because common sense sometimes gives you
the wrong answer.
The example I would always use for my class
is D.C. Rule 3.3(b), about allowing a criminal
defendant who you know is going to perjure
himself to testify at trial. If you took a poll of the
class at the beginning, everybody would say,
" That is totally unethical. You cannot do that.
If you do that, you should be disbarred. " That
is totally the wrong answer in D.C. The right
answer in D.C. is a procedure set forth in the
D.C. Rule about how to do it. You put the
person on. You ask only a narrative question
such as, " What happened? " You make no
comment in the closing argument.
However, if you did that in Virginia, you could
be disciplined. If you did that in Maryland, they
could bring disciplinary charges. But if you
don't do that in D.C., and your criminal defendant
is insisting that he wants to take the stand
and perjure himself, you could be charged with
ineffective assistance of counsel. So, it's important
not to rely only on common sense. You
need to look up the rules because the rules
differ, and you cannot assume you know what
the right moral answer is because that may be
the wrong ethics answer.
ML: I'm sure you were a fantastic ethics professor.
I think that was great advice to give to
your students.
Jack, I want to thank you very much for speaking
with us today. I know your comments will
be appreciated by the members of the Bar. It's
been a pleasure to talk to you.
JK: It was great to talk to you, Myles. Thank
you.
Visit 50years.dcbar.org to watch Jack Keeney and
Myles Lynk share their thoughts about what membership
with the D.C. Bar means to them and what
they think the organization can do to further
secure its future and better serve its members.
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