I. The Regulation of Lawyers
A. Institutions that regulate lawyers
1. The highest state courts
a. The responsibility of self-regulation
i. In most states, the highest court of the State is responsible for adopting the rules of conduct.
ii. The ethical rules require lawyers to report misconduct (their own or that of another lawyer) to the disciplinary agency charged with enforcement of the rules.
b. The inherent powers doctrine
i. In states in which the constitution doesn’t expressly delegate this power to the judiciary, the courts claim that they have the inherent authority to regulate the conduct of the lawyers as a matter of common law because the courts need the authority to govern the conduct of those who appear before them.
ii. Courts tend to strike down legislation that states that the legislature has the authority to make rules that regulate lawyers.
2. The American Bar Association
a. The ABA makes ethics rules – the Model Rules of Professional Conduct – which have no legal force unless they are adopted by the relevant governmental authority, usually a State’s highest court.
3. The American Law Institute
a. The ALI drafts the Restatement of the law Governing Lawyers.
i. This isn’t law, but it includes much more information and reasoning than either the ABA Model rules or the Comments.
4. Federal and state trial courts
a. State and federal trial courts set rules for the conduct of lawyers in litigation by sanctioning lawyers who violate the rules, and by hearing and deciding motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.
b. If a judge becomes aware of lawyer misconduct, he must report it to the lawyer disciplinary agency if the misconduct violates an ethical rule that “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
B. The law governing lawyers
1. Legal malpractice, breach of contract, and beach of fiduciary duty
a. A client seeking redress for some harm caused by a lawyer may complain to a disciplinary agency.
i. In such a case, the client is a witness, not the plaintiff.
ii. The plaintiff is the state agency that prosecutes lawyers for violating the ethics rules.
b. In addition, the client may sue the lawyer for legal malpractice, for breach of contract, or for breach of fiduciary duty.
c. A tort claim of legal malpractice may involve either a claim of negligence or one of intentional misconduct.
i. The client must assert:
1. that the lawyer owed a duty to the plaintiff;
2. that the lawyer failed to exercise “the competence and diligence normally exercised by laywers in similar circumstances”; and
3. that the breach of duty caused harm to the plaintiff.
ii. A court may order the lawyer to pay damages for harm caused by malpractice, but it could also order compliance with an injunction, return of property, alteration or cancellation of a legal document, or other remedies.
a. The knowledge must be more than a mere suspicion that misconduct has occurred. The question is whether “a reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred.”
i. Note that the standard here is similar to a preponderance of evidence
ii. (b) A lawyer who knows that a judge has committed a violation of applicable rules . . . shall inform the appropriate authority.
iii. (c) This Rule does not require disclose of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
2. Lawyers’ responsibility for ethical misconduct by colleagues and superiors
a. Rule 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers:
i. (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
1. Note that “law firm” includes legal services organizations or the legal departments of corporations, government agencies, and other organizations.
