Ethics, Morals, and Professionalism
Legal ethics – principles of conduct that members of the profession are expected to observe in the practice of law
When evaluating questions of legal ethics, you must ask whether the conduct in question violates the ethics codes.
Permitted to do work that is forbidden to non-members (licenses)
Committed to serving others
To do an unusually careful job
Agrees to comply with articulated standards of conduct
Some Central Themes to this book
Conflicts of Interest – Person notices conflicting obligations to two or more people, one of whom may be themselves
Truthfulness – Whether and to what extent a lawyer is obligated to be truthful
Duties to clients vs. Duties to justice system
1) important cogs in the adversary system
See role as almost exclusively to be in the protection and advancement of client interests
Criminal defense attorneys
By focusing on the representation of their clients, they are contributing to the improvement of the justice system
2) Primary responsibility is to protect judicial system
Ensure proceedings are fair and participants play by the rules
Most lawyers take very seriously their duties to their clients, and simultaneously notice aspects of their work impact broader group of people
Lawyer’s personal/ professional interests vs. vs. fiduciary obligation – lawyer’s own interest conflict in some way with duties to a client.
Self-interest as a theme in regulation of lawyers
Can see reflections of the drafters’ concern for their own or other lawyer’s interests.
The rules are drafted mainly by lawyers and, in states that have adopted it, approved through a process in which most or all of the participants are lawyers.
Lawyers as employees: Institutional pressures on ethical judgments –
Conflicts between a lawyer’s obligations under ethics rules or other law and the lawyer’s felt duties to employers
Lawyers tend to absorb the ethical norms of the institutions they work for
Those who matter to the lawyer at the time (i.e. direct boss) are the source for ethical and other norms
New lawyers often have little authority within the institutions where they work, and they have strong incentives to be diligent and loyal and not to criticize the conduct of their supervisors
The changing legal profession – globalization, changes in technology, and recession that began in 2008 have all changed the profession.
Rules in this book
The American Bar Association (ABA) drafts and issues Model Rules of Professional Conduct and recommends that state courts adopt them as law. Most states have adopted the ABA’s Model Rules often with several variations reflecting local policy.
MPRE exam tests students on the Model Rules
ABA would not allow reproduction of the rules, but DE has adopted almost verbatim. That is what the book quotes.
Chapter 1: The Regulation of Lawyers (23)
Each lawyer is urged to have the responsibility to participate in the governance of and the improvement of the profession. They play a key role in developing the standards by which they must practice by. They are also regulated by a complex web of statutory and regulatory law.
Institutions that Regulate Lawyers
The highest state courts
The responsibility of self-regulation
In most states adopts the ethics codes and court procedural rules that govern lawyers
They rely heavily on committees of lawyers at the state bar associations, who produce drafts of new and amended rules
Most of comments on these rules come from lawyers
Letting lawyers regulate themselves
Con – the governing lawyers are more protective of lawyers and impose less regulatory constraint than they would if state legislatures wrote them.
Pro – Lawyers often challenge governmental actions in the course of representing clients. They raise questions about the validity of statutes and regulations and defend people charged with crimes by the state. To be regulated by those very bodies they challenge is counter-intuitive.
Judges have the ultimate responsibility for rule adoption
Lawyers have responsibility to report certain misconduct to disciplinary agencies, every lawyer has a duty to help enforce the ethics codes
Standards for licensing lawyers, including educational and moral character requirements
Supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers
Supervisees administrative judicial bodies that impose sanctions on lawyers who violate ethics codes
The inherent powers doctrine
Legislatures typically make the law, but in law profession, courts make, implement, enforce, and hear challenges to the ethical and procedural rules
Courts claim authority to regulate lawyers as an aspect of their authority to administer the courts
Some state courts have asserted their regulatory authority over lawyers is exclusive of other branches of government
Some state court decisions acknowledge that all three branches of government play roles in regulation of lawyers (Ex: statutes protecting lawyers from vicarious liability for some acts of their partners)
State and local bar associations
While states’ highest courts are formally responsible for the regulation of lawyers, some courts delegate lawyer regulatory functions to the state bar associations
There are many voluntary bar associations in each state
Lawyer disciplinary agencies
Lawyer disciplinary agencies, called bar counsel’s offices or disciplinary counsels bear the responsibility for investigating and prosecuting misconduct that violates the state ethics code
Public or private reprimand
Usually run by the highest court in the state, by the state bar association, or both
American Bar Association
Private nonprofit membership organization.
Independent of ABA, although membership of the ABAHouse of Delegates (governing unit) is selected by state and local bar associations
Primary drafter of lawyer ethics codes
ABA committee drafts a model rule or set of revisions to existing rules
Debated and approved by ABA as a whole through House of Delegates
Committees of state bar associations review, sometimes at the request of the highest court
Can solicit comments from members of the bar and public
State’s highest court accepts, rejects, or amends the rule
Has limited governmental authority with no legal force unless adopted by the relevant governmental authority (usually highest state court)
American Law Institute
Private org of judges, lawyers, and professors
Restatement (Third) of the Law Governing Lawyers – not law, but is the best available synthesis of information about lawyer law
Sometimes Restatements diverge from ethical rules because the ALI do not agree with ABA a
ate systems through which applicants with history of emotional trouble of substance abuse can be admitted to bar conditionally for a probationary period, subject to certain conditions such as getting treatment
Misconduct during law school
In re Mustafa – Mustafa used moot court program funds for personal use. He was very forthright and honest during the investigations, and had completely repaid the amounts “borrowed” by the time anything was reported. The Committee unanimously recommended admission to the state bar.
: In order to gain admission to the bar, an applicant must demonstrate by clear and convincing evidence, that the applicant possessed good moral character and general fitness to practice law…at the time of the applicant’s admission.
: Although Mustafa had an outstanding law school record and was on the right track since the embezzlement, the amount of time that had elapsed between the embezzlement and bar application was not long enough. They denied admission, but said he should apply again.
: He was later admitted to the bar and only a few years later was sanctioned for misconduct. During his suspension, more charges were filed against him. Instead of fighting them, he resigned his bar membership.
Law school discipline: A preliminary screening process
Law schools have internal disciplinary processes to evaluate student misconduct allegations and impose sanctions
Sometimes ran by professional staff, sometimes entirely student run
Sanctions include: letter of apology, suspension, expulsion, transcript notations, notes in confidential records, etc.
Chapter 2: Lawyer Liability (79)
Violation of the state ethics rules may lead to disbarment, suspension, reprimand, or another sanction.
The disciplinary system is not the only system through which lawyers are regulated, but it is a central element in the state supreme court’s efforts to require high standards of professional conduct.
History and process of lawyer discipline
State gradually established administrative agencies to investigate/prosecute lawyer misconduct
Disciplinary systems have become professionalized:
Greater ability to police lawyer misconduct
In most states, the highest court run the disciplinary system. An independent office set up by the court uses paid staff attorneys to investigate and prosecute charges against lawyers
Can be administered by state bar associations
Majority are independent of bar associations
If agency thinks there is misconduct:
1) presents the case to an adjudicator (committee or judge)
2) They hear evidence, make findings of fact, recommend sanctions
3) Reviewed by administrative board
4) Administrative Board decisions may be appealed to state’s highest court