Testing Ethics

Question: During the trial of a case by Attorney Alpha, Attorney Beta saw Alpha having a drink in a bar with one of the jurors in the case. The ethical obligation of Attorney Beta, who was not involved in the case, was to 1) keep this knowledge confidential; 2) reprimand Alpha for drinking in a public place with a juror; 3) inform the judge trying the case of this incident; 4) warn Alpha and the juror not to talk further to each other. Answer: No. 3.

A special two-hour section in this year's California bar examination contained 40 such multiple-choice questions on professional ethics. The section was added in an apparent response to a widespread feeling that the shocking number of lawyers involved in the nation's recent political scandals called for much greater attention to legal ethics. The test results bore out the feeling. The examiners report that 44.2% of the 2,313 aspiring attorneys who took the exam last February got fewer than 28 questions right and thus flunked the ethics section. That is roughly the same percentage that failed the exam as a whole; nonetheless, the examiners were shocked, since it was considered a "simple test." Those who failed the ethics section will have to retake it, even if they passed the rest of the test.

California's practicing attorneys are not likely to hoot too loudly at the oncoming generation: they may eventually be taking a similar test themselves. The state bar's board of governors has already approved in principle a requirement that California lawyers take 60 hours of refresher courses on various subjects--including ethics--every five years. Minnesota is just beginning such a program, and Kansas, New Jersey, New Mexico, Oregon, Washington and Wisconsin are now considering similar requirements. Applied nationwide, such courses should make a start at weeding out or shaping up those members of the bar who do not practice actively, those who fail to keep current on the laws affecting their specialties, and it is hoped, those who are ignorant or insensitive about the ethics of their profession.

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