One aspect of my disciplinary case with the Massachusetts Bar and its false findings calling me immoral is a microcosm of why professional rules of ethics should not be used as a normative process to regulate any profession, in particular that of being a lawyer. This aspect is the simple and undisputed fact that one of the three hearing officers was absent for an entire day of evidence and testimony yet was allowed to sign-off on the factual findings made against me as being true. It is undisputed that this aspect is perfectly legal and thus accepted as moral by the few who judged me and thus is considered irrelevant for any moral criticism of their findings. Yet, to anyone with any working class instincts, the arguable immorality of such an aspect is readily apparent and thus the accuracy of the findings would be immediately questioned. The conflict between these moral perspectives created by such simple and undisputed facts is a microcosm on why lawyers and the law generally should not be using the language of morality for its normative discipline purposes.
The so-called “professional ethics” disciplinary process of the Massachusetts Board of Bar Overseers is governed — as of course is everything in the law — by a set of rules; this set of rules is called the Rules of the Massachusetts Board of Bar Overseers. This is to be expected; lawyers are educated and trained in rule-following and rule-making, that is what they do — and of course in how to find loopholes for the rules they create and to get around those same rules when they want. However, to anyone who has seriously or even just academically studied morality, ethics, or especially meta-ethics, rule-following — deontological ethics as it is formally called — as a basis for morality comes with serious problems. Even for the law sometimes, such as for the losers in war, “I was just following orders” is not accepted as a defense. Everything from enabling human extermination laws to slavery was at one time allowed by a legal rule, but this allowance did not make such rule-following moral. Morality is supposed to be about such things as values, consequences, and intentions not just about rule following. As moralists from Plato to Kant and onto Rawls have argued, even a completely amoral psychopath can follow rules so as to avoid punishment and to succeed in their ambitions, such does not make the amoral either moral or good people. (Such explains why many of the most esteemed members of the Bar and particularly of the Board of Bar Overseers are often psychopaths, but I digress.)
Few members of the Bar and no one who is a member of the BBO has ever seriously studied morality, ethics, or meta-ethics — if they had, they would not be members of the BBO. Becoming a member of the BBO or sitting as one of its disciplinary hearing members as with almost everything in the law is a political process — one need not even be a lawyer because some non-lawyers are accepted. To join the elite few with the legal power to pass judgment on the lives of others — “othering” them as so many of these elites hypocritically like to complain of hoi polloi — one need only be sufficiently sycophant enough to volunteer and to pass the popularity test interview application process. Thus, it is not a surprise that one of the BBO Rules consisting of their §3.7 governing disciplinary hearings states that:
( c) The absence of a committee or panel member from any hearing shall not be cause for continuing the hearing as long as a quorum of the hearing committee or panel is present. Such member may participate fully in all deliberations of the committee so long as the transcript of the hearing at which he or she was absent is available to him or her.
To anyone with a working class background, lower class social consciousness, or even anyone who served in the military, such a rule as §3.7 instinctively or upon reflection causes moral discord. In the Navy for example, especially in the Submarine Service, not only would there be no respect for any shipmate or superior officer who does not show up for watch or a duty for which they volunteered, but it would be a basis for believing that shipmate or officer to be untrustworthy — not someone you could trust to have your back. Not only would such officers not be respected and trusted in their leadership roles, but in situations of life and death, their orders would not be trusted and thus even lawful orders risk being disobeyed. No superior officer in their right mind would take such a leadership risk. The reason for this discord is simple: one of the problems with being low in a social totem pole of power is that those who rule over us usually made their judgments and decisions on our lives without bother of ever knowing us. They do not need to know us personally or even to see and hear the evidence, they already know us as their social inferior based on their social superiority — in short, based on their social bias, prejudices, and beliefs. Such a rule is a socially acceptable means of allowing socially acceptable bigotry. (Unfortunately, the military was much more of a meritocracy than the oligarchy that is the Bar.)
In my disciplinary hearing, the above rule was invoked. One of the hearing members, the non-attorney member, did not bother showing up for an entire day of evidence — including the cross-examination of the complaining party. Despite such absence, this hearing officer signed off on the findings calling me immoral and destroying my professional career. From my moral perspective, this hearing officer volunteered for a job to pass moral judgment on another’s life so as to discipline the other’s life and to punish their family while lacking the integrity to even bother seeing and hearing the evidence — if they were unavailable for good reason, they should have withdrawn from being a hearing officer. From my moral perspective, I reached the same conclusion of this member of the elite as I would have of a shipmate or of a naval officer: they are dishonest and hypocritical sycophants who volunteered solely to get it on their resume and could not be trusted. They would still be members of the crew and of society — I do not want to punish them by excommunication or other form of social ousting — but I would, as many a shipmate would, consider them immoral and not trustworthy in a situation of risk.
Of course, for the other members of the hearing panel and for the BBO and the judiciary, because the absence was in accordance with §3.7( c), from their moral perspective none of my moral conclusions were reached or even considered nor are they considered valid or sound. From their perspective, this hearing officer because they were just following their orders, was acting morally and their absence is an irrelevant fact in the state of affairs. Until they lose a battle with my or any moral perspective that opposes their moral perspective, “I was just following orders” is a valid and sound defense for the missing hearing member.
I emphasize: I am not criticizing or whining — however you consider it — that the use of §3.7 or reliance on it as a moral standard is invalid or unsound. No, no, no. My point is that from a meta-ethics perspective, the BBO’s “I was just following orders” moral standard and my lower-class-values moral standard are both equally valid and equally sound. I understand that people can have different moral standards and still be good people. The important point that I am trying to make is that the moral busybodies of the BBO only see their moral perspective and have no understanding of mine or of any other moral perspective: they most certainly do not understand or accept that their moral perspective may be more shallow or less rigorous than mine or any other. My point is that I understand as any studious moralist would understand that the BBO and I have equally valid and sound moral standards or perspectives — that we equally have concepts of good and evil that give meaning to life. I would not go around demanding and I have no ethical basis to demand that the dishonest hearing member, who could not bother to do their moral duty to hear and see the evidence before signing off on calling another immoral, be ousted from society or suspended from their profession. No, the best that I can do is call them immoral and bigoted because from my moral perspective which values a higher standard than that required by §3.7, they are immoral and bigoted. However, even this free speech is considered immoral by the moral busybodies of the Bar. They not only demand the power to judge my life and publicly to brand me with a scarlet letter of “immorality”, they demand the power to stop me from ridiculing them while they ridicule me and my family and destroy it if they so choose. They demand power not because they understand morality and are morally superior but because they need the power of morality in order to feel superior.
What makes these simple facts even more an exemplification of why lawyers should not be using morality as a normative language is their hypocritical public marketing of “diversity, equality, and inclusion” not only as virtues but as public social virtues sought after by the Bar and the BBO. If such a simple fact as §3.7 distorts their normative perspective with ignorance, just imagine how their more complicated social class bias and prejudices distort more convoluted facts. A hearing panel made up of sycophants that have no clue as to the arguable immorality of a simple issue such as §3.7 is not one that should be deciding complicated interpretive issues such as duties owed between lawyer and client. They cannot deal with the simple, they have no training nor idea of what they are doing with the complicated. As Wittgenstein famously said in ¶201 of his Philosophical Investigations: This was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it.