Governance & Membership
President's Message - August 2023
Make Ethical Behavior a Daily Practice
By Brian Hermanson
“Ethics is knowing the difference between what you have a right to do and what is right to do.” - Potter Stewart
One of the major goals of my year as OBA president is to open a dialog among our state’s attorneys and judges about the ethical issues that face each of us on a daily basis. While I would think that many people feel uncomfortable talking about what they perceive as ethical violations that occur in our profession, only by having those discussions can we educate ourselves and others about how we can improve the way that we conduct ourselves as lawyers.
In writing about this, I don’t hold myself as an expert on this issue; like many of you, I am only an observer. With this month’s Oklahoma Bar Journal devoted to the topic of Ethics and Professional Responsibility, it seems important for me to try to address some of those observations.
While I know ethical abuses can occur in any practice setting, I want to specifically address what I see in trial work. I have been a trial lawyer almost all my adult life. I was fortunate to have been tutored in the law by people I consider to be legal giants. They taught me to show respect to those attorneys that I had cases with and to avoid doing things in the courtroom that would detract from our profession. It has been my experience that a vast majority of the lawyers of this state do that every day. I am so proud of my fellow bar members as I watch them skillfully present their cases in the court of law.
But I have to admit I have seen things happen in the courtroom that are far from what I would call professional conduct. I have seen attorneys engage in name-calling and bullying of other attorneys. I have seen attorneys who disrespect the rule of law when they present an argument to a judge, and I have seen judges fail to control their courtrooms when these activities occur.
One might ask why it matters that one may go too far in advocacy for their clients. Why, they may ask, is it wrong to do everything I can to help my client win their case? If one does not understand the answer to that question, perhaps this article will fall upon deaf ears.
It is important to remember the important role of judges in controlling these issues. The judges have many important roles in all stages of legal proceedings. The most important of which is to ensure that each party’s rights are protected and that legal decorum is always present. Judges have a responsibility to control improper conduct in the courtroom.
American philosopher Aldo Leopold once wrote, “Ethical behavior is doing the right thing where no one else is watching – even when doing the wrong thing is legal.” We as attorneys are expected to set a high bar when dealing with ethical issues. Cases should be decided based upon the facts of the case, not because someone was a better bully.
For many people, the only true glimpse they see into the practice of law is the short time they are in the courtroom as a juror, party or witness. I know some will say that they learn about it on television, but I think we would all agree such a glimpse is not a real vision of the practice of law.
There is some concern that the lawyers of today may think they do not have access to the mentors that lawyers in the past were able to learn from. Many lawyers graduate from law school, hang out a shingle and begin to practice on their own. Please be aware that there are many attorneys out there who would love to answer your questions and provide guidance. Most would feel honored to be asked.
In the final analysis, it is up to each of us to ensure our conduct meets the standards of the profession. We must raise an objection to the conduct, challenge the tactic and stop the abuse. We must not act in ways that are contrary to fairness and civility, and we must always remember that a trial should be a search for the truth. Justice will be the true victim if we fail to act in accordance with the ethical rules.
Brian Hermanson serves as district attorney for the 8th District of Oklahoma.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 6 (August 2023).
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.