• July 8, 2013

Update (July 8, 2013): As discussed in the somewhat controversial original post below, in my opinion, the trauma of horrific and unforeseeable work-place violence has been further compounded by an over-reaching lawsuit against the Accent Signage (whose owner was among the victims).  And the case has now survived a motion to dismiss (order linked here) in part.  Defense counsel are Larry Rocheford of Jardine Logan & O’Brien and Leatha Grein Wolter of Meagher & Geer.  So, those of us who are doubly sympathetic to survivors at Accent Signage (for the initial tragedy and the unfortunate piling on lawsuit) can take some solace that (1) the defendants have top flight counsel and,(2) it would appear that insurers, ultimately, will be footing the bill.

Original post (February 21, 2013):  As a law student the University of Michigan Law School, I was summoned by the law school to meet with a potential donor who was considering whether to make a donation to the law school dedicated to an ethics program. (No clue why I was picked for this task.  Probably random.)

“Does it make sense to devote more resources to teaching more ethics to law students?” the potential donor asked me, “Isn’t the ‘moral compass’ of a law student pretty much ‘baked in’ by the time a law student has reached the age of being in law school?  They’re either going to do the right thing or be the ‘bad apple,’ don’t you think?”

As I had been recruited by the law school to land this donation (that was my inference, anyhow), wasn’t my answer a foregone conclusion?  I advocated what I thought would be the school’s position:  while it is true that law students’ adherence to moral principles (or lack of adherence to them) is probably fixed and entrenched in law students by the time they hit law school, legal ethics and morals are distinct.  Many situations arise where the two may seem inconsistent.  Legal ethics are different rules, related to but separate from morality.  And the interrelationship is complex and worthy of further study.

I never found out whether the Law School was the beneficiary of that donation.  But ever since, this has come to mind when I think of the complicated interrelationship between a general sense of right and wrong (“morals”) and what legal ethics demand.

Andrew Engeldinger went on a shooting rampage at Accent Signage in St. Louis Park on September 27, 2012, killing six people, including his co-worker Jacob Beneke.  The surviving workers at Accent Signage will bear the unimaginable and devastating scar of this trauma for the rest of their lives.

Now, lawyers Phillip Villaume and Jeffrey Schiek are representing the family of Jacob Beneke in a lawsuit against Accent Signage.  Their theory, in a nutshell, is that Accent Signage, ironically, should have seen the signs.  The lawyers take the position that Accent Signage should have foreseen the tragedy, and Accent Signage, they allege, was “grossly negligent” in not taking steps to avoid the killing of Jacob Beneke and others.

Now, in addition to being the witnesses of these horrific homicides, the Accent Signage survivors are targets in a lawsuit suggesting that they are to blame for the loss of their beloved co-worker, Jacob Beneke, and five other people.

Is it fair to judge the family of Jacob Beneke for this lawsuit, for heaping yet another hardship on Accent Signage, forcing Accent Signage survivors to re-live this horror in depositions or at trial?

Most of us, recognizing the profound loss and grief the family of Mr. Beneke undoubtedly have suffered and will forever suffer, will withhold judgment, reserving only pure and deepest sympathy for the family of Mr. Beneke and their senseless loss.

But what about the lawyers?  Do we hold them to a different standard?  Is it fair to question their judgment or their sense of right and wrong?  Certainly, from a legal ethics point of view, we have no reason to question any aspect of the lawsuit.  Does this, by itself, remove any righteousness from moral condemnation of the lawyers?  Maybe it does.

On the other hand, legal ethics do not replace moral responsibility, they overlay it. We learn legal ethics but we cannot fully consciously adopt our sense of right and wrong, our sense of morality, nor can we decide to shed it.  It is deeper.  It is in the bones and in the heart.  It is, at least to a degree, beyond volition.

So, maybe it is wrong to judge or condemn the lawyers’ decision to pursue this case on some kind of moral basis; but we might find ourselves doing it anyway.  And maybe, ultimately, there is nothing wrong with that.

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