September 2011 #2. RAISING THE BAR IN ETHICS.


Hawaii Bar Journal


September 2011 #2.


Hawaii State Bar JournalSeptember 2011RAISING THE BAR IN ETHICSBY EVAN SHIRLEYWhy Both Drivers and Lawyers Violate Rules

As a practicing attorney engaged in the law of lawyering, teaching legal ethics at CLE programs, and an occasional appearance in the classroom, I am familiar with the want of enthusiasm that most lawyers and law students bring to the study of professional responsibility. The same lack of interest applies to the learning about traffic laws-unless you have to go to the DMV because you let your license expire. This short article compares two somewhat similar modes of misconduct-the failure of a driver to follow the traffic laws and a lawyer's violation of the Hawai'i Rules of Professional Conduct.(fn1)

The comparison is somewhat apt because, as human actors, drivers and lawyers simply will not or cannot comply with all of the rules. Some violations can be chalked up to inadequate or out-of-date rule drafting, little or long-forgotten education about them, or fortuitous rule enforcement. The thesis is that drivers and lawyers primarily violate the governing rules because they are ignorant, negligent, or deliberately defiant of them.

Common rule violations by both drivers and lawyers are divided into two broad categories: unintentional violations and deliberate violations, both of which have subcategories. The first subcatego-ry of unintentional violations is negligent behavior: the driver or lawyer knows the rule but nevertheless fails to pay adequate attention and inadvertently breaks the rule. The second type of unintentional violation is due to ignorance, where the driver or lawyer does not know that a rule outlaws the behavior at issue.

Deliberate violations by drivers and lawyers fall into three subcategories. The first is the small category of situations is where the violation results from a flawed law or rule which the driver or lawyer refuses to obey because it is outdated or otherwise does not re flect commonly accepted practices. The second category of deliberate violation is extraordinarily rare and occurs when the driver or lawyer defies the law or rule for a noble reason such as speeding to take person in need of critical care to a hospital.

The third and far more common type of intentional violation is due to the selfish...

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