The Limits of Codes of Professional Conduct and the Value of a Lawyer Following Their Own Conscience: Lessons From Atticus Finch
“Is it or is it not an ethical dilemma?” “Does such a behaviour violate the ethical rules in the Rules of Professional Conduct?” These are questions that we students were asked each day in our Professional Responsibility class. However, day after day, we were often unable to reach a conclusive answer to a myriad of ethical dilemmas. I found myself often pondering why it was often so difficult to reach a conclusive answer to an ethical issue.
As law students, we are trained to unfailingly following rules, such as the Law Society of Upper Canada’s Rules of Professional Conduct, and fitting our professional lives into these rules. Interestingly, however, in Harper Lee’s To Kill a Mockingbird, the infamous Atticus Finch primarily relies on one rule above all others, a rule that is not given prevalence in our Rules: always follow your conscience. Is it possible, then, that sometimes we are unable to reach an answer because we have become so obsessed with finding the answer in the Rules that we forget to reflect on our own conscience, our own sense of right and wrong?
Many lawyer codes of professional conduct encourage a divorcing of a lawyer’s personal convictions from their professional responsibilities. However, Harper Lee’s portrayal of Atticus Finch encourages the notion that such codes are not always a feasible guide to legal ethical dilemmas, nor are they the “be-all and end-all” of what it means to be a professionally responsible lawyer. Rather, while codes of professional conduct are often a useful guide, sometimes ethical situations arise in which the solution cannot be found by solely relying on outside forces – like a professional code of conduct— for the answer. Sometimes, the most fruitful way to solve a dilemma is to rely on our own conscience and have faith in ourselves to do the right thing.
The Case of Tom Robinson
A key principle commonly discussed when it comes to lawyer-client relationships is making sure to separate one’s personal life and beliefs from their professional relationships with their clients. In many respects, our Rules reflect this principle, as they do not promote a lawyer’s personal convictions of morality or ethics guiding their legal work. There is no mention in the Rules, for example, of the words “empathy” or “compassion,” two often very strong personal morals. Instead, the Rules attempt to create a sense of “professional” ethics which is separate from one’s personal ethics. For example, commentary two of rule 7.2-1 cautions against lawyers having their judgment “clouded by emotional factors.” Similarly, commentary two of rule 5.6-1 cautions lawyers about how they must be careful with how their “public” and non-professional life – which to me includes their personal convictions –may negatively impact the administration of justice.
As we see throughout the novel, Atticus does not separate his personal morals from his professional responsibilities when it comes to his professional relationships. Instead, he amalgamates them. He lets his own sense of what is right and wrong guide him through his professional responsibilities. In the words of Miss Maudie “Atticus Finch is the same in his house as he is on the public streets.” Scout echoes this observation when she later says, “He’s the same in the courtroom as he is on the public streets.”
We see Atticus’s morally driven approach to his lawyer-client relationship with Tom Robinson. Despite having been appointed by Judge Taylor to represent Tom, Atticus comes under fire for following through with Tom’s defence, both because Tom is a black man and because he is accused of raping a white woman– a capital crime. In one scene, for example, Atticus’s daughter Scout overhears two townsfolk talking about Atticus’s case in which the first man says: “You know the court appointed him to defend this nigger?” to which the other responds, “Yeah, but Atticus aims to defend him. That’s what I don’t like about it.”
Despite the criticisms, Atticus does not listen to external forces when it comes to his defence of Tom, but is driven by his own moral code and conscience. Despite the criticisms, if he did not zealously defend Tom he says, “I couldn’t hold my head up in town, I couldn’t represent this country in the legislature, I couldn’t even tell you or Jem not to do something again.” To him, Tom’s case “is something that goes to the essence of a man’s conscience” and while he believes everyone is entitled to their opinions as to what he should do, he says, “before I can live with other folks I’ve got to live with myself. The one thing that doesn’t abide by majority rule is a person’s conscience.” Atticus does not let anything – not the opinions of others, not his perceived professional duty as a lawyer – dissuade him from his conscience telling him that he must give Tom a proper defence.
In many ways, Atticus’s approach to defending Tom and to his lawyer-client relationship with Tom does not follow the conventional lawyer-client relationship as laid out in the Rules. The Rules instill a sense that a lawyer’s behaviour should be drawn from his or her professional responsibility to clients, the profession, and the administration of justice as laid out in codes of conduct. Codes of conduct, in this sense, are perceived as the main guide to a lawyer’s professional responsibilities. However, as stated by Thomas Shaffer, “Atticus did not define his professional function from criteria within the profession, but from the same criteria he used when he talked to his children,” his personal ethics. Atticus’ primary reason for defending Tom, even when all roads point to not defending him, is because he could not live with himself as a person if he did not defend Tom, not because he would not be a good lawyer, or would bring the administration into disrepute, for example, if he did not.
Despite the negative view Atticus’s conduct may cast on lawyers and the legal profession in Atticus’s community due to the extreme unpopularity of Tom’s case, can we really say Atticus did a bad thing by allowing his personal morals and conscience guide his defence of Tom? I do not think we can. Atticus is the infamous lawyer hero he is for the strict reason that he doesn’t compartmentalize who he is a person from who he is as a lawyer. As Thomas Shaffer states, Atticus Finch was a hero “whose sense of himself as a lawyer was not a compartment of his life, but was the same sense he had of himself as a person.”
Even though Tom did not win his case, Atticus still fulfilled his professional duties as his lawyer. However, were it not for Atticus’s personal morals guiding him, he likely would not have fulfilled the professional duties given much importance in the Rules: his duty to act honourably and with integrity even when people criticized him; his duty to be honest and candid both with Tom and the public, rallying for the public and the jury to believe in Tom’s innocence while ensuring that Tom’s expectations of winning were not fueled; his duty of loyalty to his client by representing him zealously both inside and outside the courtroom. The fulfillment of these duties were driven by the sense that Atticus let his conscience and personal ethics guide him. If he solely let the outside world – including his professional responsibilities– guide his professional function, I am not sure Atticus would be such an admired lawyer as he is today. Atticus is proof that sometimes doing the right thing and being a good lawyer does not necessarily come from doing what the society expects you to do or even the profession guides you to do, but comes from following your own heart.
The Case of Boo Radley
Another key ethical dilemma Atticus faces is at the end of the novel when Boo Radley kills Bob Ewell, who was attempting to murder Atticus’s children, Scout and Jem. Heck Tate, the sheriff, insists that Ewell fell on his knife, which Atticus later discovers is not the truth, as it was Boo Radley that killed Ewell. However, Heck thought it would be a sin, given Boo’s mental illness and past of isolation, to put him in the limelight that charges and a trial would bring. Heck asks Atticus to uphold the lie to protect Boo. Atticus again, follows his personal conscience in agreeing and deciding to conceal the true manner of Ewell’s death.
Some scholars have argued that Atticus breached no professional duty and was under no obligation to disclose the truth since he was not a witness to Ewell’s death. However, the situation still presents an ethical dilemma for Atticus and has the potential to wreak significant havoc. For one, if the lie were discovered, Atticus’s reputation as a lawyer would likely suffer because he negated his professional duty to act honestly and with integrity by lying. Not only this, but he would likely be labelled a hypocrite because he criticized the jury in Tom Robinson’s trial for not giving him a fair trial, but judging him in the “secret court” of their hearts. Aren’t Atticus and Tate judging Boo in the secret court of their hearts by precluding him from trial?
In addition, the lie being discovered would likely have a negative impact on the public’s confidence in the legal profession and the administration of justice. A lawyer lying to allow a murderer to avoid punishment is not something the public would likely look upon favourably. Second, if we look at our own Rules, it is likely that Atticus’s lie would be considered a breach of his professional responsibility. Firstly, the dishonesty could be considered “conduct unbecoming a lawyer” which the law society could discipline him for under Rule 7.8-2-3. Also, Concealing Boo’s role in the death of Bob Ewell, may also fall under Rule 3.2-7, which states that “A lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment.”
If one solely looks at the Rules and the repercussions that could befall both Atticus and the legal profession because of his lie, then it would seem as though there is no question that Atticus breached his professional responsibility by protecting Boo with the lie. However, Harper Lee challenges the reader to discern whether what Atticus did was, indeed, wrong. Was following his conscience and protecting Boo the wrong thing to do?
The complexity of Boo’s situation and Atticus’s decision shakes the foundation of a rigid, rule-based approach to regulating the legal profession. For one, Boo Radley suffers from mental illness and has spent most of his life inside his home. Indeed, charging him and forcing him to stand trial has the potential of doing more harm than good. Second, Bob Ewell was attempting to murder two innocent children. Were it not for Boo Radley killing Ewell and intervening, perhaps the lives of two innocent children would have been lost. When one considers the context of Boo’s situation, Atticus’s decision to follow his conscience in protecting Boo does not seem to be such a gross violation of his professional responsibility as a lawyer. Atticus was merely trying to do the right thing in trying to protect yet another harmless mockingbird from having their life ripped from them.
Even if Atticus did make a mistake by concealing Boo’s crime, Atticus’s conduct highlights the way that there is always more to a situation and to a decision than whether it conforms to a certain principle or rule. Sometimes rules and principles need to be bent and challenged to achieve a just an equitable result. The bending of rules is, after all, consistent with Atticus Finch’s opinion of how the law should work. As he tells Scout, “Sometimes it’s better to bend the law a little in special cases.” Boo Radley’s case is clearly Atticus’s special case. Does that make him a bad lawyer? Absolutely not. It makes him a zealous advocate driven by his personal conscience – his own sense of right and wrong –to accomplish a just result.
As Atticus’s ethical dilemmas throughout the novel depict, sometimes it is very difficult to separate personal convictions and morals from a lawyer’s professional obligations, contrary to what many codes of professional conduct attempt to instill. As Harper Lee portrays, however, a lawyer being empathetic and following their moral conscience is not a bad thing. Yet, “the claim that a lawyer must obey his conscience fades a little more every time the [legal] profession recodifies its rules of professional conduct.”
However, trying to ignore our conscience does not make us better lawyers. Had Atticus ignored his conscience, he likely would not be the lawyer hero many perceive him to be today. Instead, the novel demonstrates the value that can come from a lawyer embracing their conscience and not solely relying on external expectations of the profession to guide their conduct. Not only that, embracing one’s conscience also brings out the humanity in lawyers, which is something else that Harper Lee attempts to make clear throughout the novel by making Atticus such a conscience driven character. As the epigraph to the novel reads, “Lawyers, I suppose, were children once,” and children are the purest form of humanity. Children are driven by their conscience largely because, as Atticus puts it when talking to Jem about Jem’s dismay at how the jury could have wrongly convicted Tom, “so far nothing in your life has interfered with your reasoning process.” Every lawyer comes from that innocent, conscience driven state of humanity and should not be so swift to dismiss it.
Always following one’s conscience is clearly a slippery slope and I am in no way suggesting that the Rules should be outlawed in favour of every lawyer merely following their conscience. The Rules are often more than a helpful guide to lawyering, they are a necessity. However, Atticus’s struggles and even the struggles of my colleagues and I in our Professional Responsibility course merely highlight how difficult it sometimes is to rigidly follow the Rules. Sometimes ethical dilemmas call so strongly to our personal morals, and other times, a dilemma is such that following the Rules may not result in an equitable and just result. These situations are not creatures of our profession, but of humanity, and thus cannot necessarily be captured by a professional code of conduct. As such, sometimes the answers to such ethical dilemmas – like Atticus Finch’s – simply cannot be found in a code of conduct. Sometimes the best guide to an ethical dilemma is ourselves.
Catarina Ferreira is a third-year law student at the University of Ottawa, Faculty of Law in the English Common Law program. When she is not doing school work or legal clinic work, she can be found buried under her endless “to be read” pile of novels.
 Harper Lee, To Kill a Mockingbird (New York: Grand Central Publishing, 1960) at 61.
 Ibid, at 266.
 Ibid, at 218.
 Ibid, at 101.
 Ibid, at 139
 Thomas L Shaffer, “The Moral Theology of Atticus Finch” (1981) 42:181 University of Pittsburgh Law Review 181 at 218.
 Ibid, at 223.
 Abbe Smith, “Defending Atticus Finch” (2011) 14:1 Legal Ethics 143 at 160.
 Shaffer, supra note 6 at 196.
 Smith, supra note 8 at 162.
 Lee, supra note 1 at 40.
 Shaffer, supra note 6 at 223.