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Legal Profession
University of Denver School of Law
Sterling, Joyce S.

Legal Profession


Spring 2016


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

Different perceptions

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
Prosecutors, judges

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
Courts exclusive?

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
Sanctions include:

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
Provides Restatements

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)

Professional Discipline

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:

Better funding
More staff
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