The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Cultural Difference "Cannot Be Accepted as a Reason to Mitigate" Ethiopian-Born Lawyer's Dishonesty-Related Misconduct
From the long (20K-word) decision of the Washington Supreme Court Thursday in In the Matter of Disciplinary Proceeding Against Feyissa, written by Justice Sheryl Gordon McCloud:
After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO's disbarment recommendation. Feyissa appeals….
Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….
There's a lot going on in the case, and you can read it for yourself here. But here's one brief passage that particularly struck me:
Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….
As stated above, Feyissa's friend testified about cultural differences between Ethiopian and Western cultures relating to norms in negotiations. The witness opined that "in Ethiopia, 'If you tell a lie but everybody's happy, then you didn't do anything wrong.'"
The HO clearly did not refuse to consider this testimony or to evaluate its impact on the case, as evidenced by her conclusion of law on the issue; the HO made the sustainable legal conclusion that this cultural difference "does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent's conduct as a lawyer."
Here are the passages from Feyissa's counsel's briefs that raise the argument to which the supreme court was apparently referring:
The complaint also alleged that Mr. Feyissa made false statements in negotiating on his clients' behalf. As explained below, due to the very different set of norms in Ethiopian culture surrounding negotiations, he did not understand the limits of bluffing and puffery in negotiations, and made the false statements solely to get his clients more money. Mr. Feyissa admitted the false statements for which he was responsible, stopped engaging in that practice after receiving the grievance; and expressed regret for his conduct during the hearing…..
[T]he Hearing Officer refused to consider evidence that in Mr. Feyissa's culture, telling lies is accepted as long as it makes other happy and that in negotiations, both sides understand that the other will exaggerate and twist the truth….
The Hearing Officer also erred by refusing to consider Mr. Feyissa's cultural background in finding that the false statements "seriously adversely reflected on his fitness to practice," wrongly concluding that because his cultural background did not "exempt Respondent" from the RPCs, it should not be considered at all. Mr. Feyissa never asserted that he was exempt from the RPCs. Instead, the context for the misstatements is critical in evaluating whether the misrepresentations to third parties seriously adversely reflected on his fitness to practice. As discussed above, there was uncontested evidence that false statements are acceptable in negotiations in Ethiopian culture. Mr. Feyissa now understands that the rules governing his conduct in negotiations and agrees that he did not comply with the RPCs, but the reason he thought he was allowed to make such statements needs to be considered when determining the degree to which his conduct reflected on his fitness to practice….
ODC criticizes Mr. Feyissa's counsel for asking race-related questions and claims that "[t]he Hearing Officer's explicit rejection of Respondent's attempt to inject race into the proceeding makes clear that the Hearing Officer had foreclosed any consideration of race as a factor in this case and undercuts the claim that the decision was tainted by racial bias." That assertion is based on Respondent counsel attempting to impeach Dr. Britton after ODC opened the door by eliciting demonstrably false testimony that he and Mr. Feyissa had a similar skin tone. The Hearing Officer's refusal to permit impeachment based on race-related testimony on direct is itself a potential instance of implicit racism. As discussed in the Opening Brief …, color-blindness is a contemporary form of racism. That is further reflected in the Hearing Officer's refusal to consider evidence that falsehoods in negotiations are acceptable in Mr. Feyissa's culture, which she wrongly viewed as using "cultural background [to] exempt Respondent from his professional obligations under the RPCs."
Just to be clear, I have no reason to think that Ethiopians are indeed culturally more open to lying than Westerners in negotiations; of course, many Westerners lie about all sorts of things, including during negotiations; and the rules related to honesty in negotiation can be complex—to quote the comments to the Model Rules of Professional Conduct, for instance,
Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact [as to which a duty of honesty applies]. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.
But even if Feyissa's counsel was correct that Ethiopian norms related to honesty in negotiation are different here, I agree with the hearing officer that this shouldn't be seen as a mitigating factor here.
