Problems in Professional Responsibility Outline
Adams, Spring 2017
Morals- define what is right versus wrong, good versus bad, usually attributed to a higher being or authority
Legal Ethics- a principle of conduct that members of the profession are expected to observe in the practice of law; an outgrowth of the profession itself
In evaluating any question in legal ethics, you should ask 2 questions:
Does the conduct violate the ethics code?
Was it the right thing to do?
The Regulation of Lawyers
Institutions that Regulate Lawyers
Highest State Courts
Legal profession is largely self-regulated; it sets and enforces its own standards of conduct
In most states, highest court, not the legislature, is responsible for adopting the rules of conduct that govern lawyers
Lawyers set and maintain their own standards of integrity and performance.
Government regulation of lawyers is distinguished from other industries because courts play such a prominent regulatory role
Self-regulation is beneficial because it provides the legal profession with some independence from the state
lawyers often work contrary to the state, so this could cause conflicts-of-interests
Highest courts of each state usually:
adopt ethics codes and court procedural rules,
set and implements licensing for lawyers,
supervise agencies that investigate and prosecute complaints of unethical conduct by lawyers, and
supervise administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.
Inherent Powers Doctrine: Courts claim that they have the inherent authority to regulate conduct of lawyers as a matter of common law because courts need the authority to govern the conduct of those who appear before them
Negative Inherent Powers Doctrine: some state courts have asserted that their regulatory authority over lawyers is exclusive of other branches of government
State and Local Bar Associations
Most state bar associations are organized as NPO’s but some have government functions.
Integrated/unified bar: a bar that accepts delegated functions from the state’s highest court; membership is mandatory
Lawyer Disciplinary Agencies
Lawyer Disciplinary Agencies bear responsibility for investigating and prosecuting misconduct that violates the state ethics code
They are usually run by state’s highest court and/or the state bar association
American Bar Association
The primary drafter of ethics codes
Independent of state bars
American Law Institute
A private organization of 3,000 judges, lawyers, and law teachers that produces the Restatements
Federal and state trial courts
Courts set rules for the conduct of lawyers in litigation, by sanctioning lawyers who violate those rules, and by hearing and deciding motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.
A judge who becomes aware of lawyer misconduct may sanction the lawyer directly under civil procedure rules.
Legislatures adopts constitutions and statutes, including criminal laws, banking laws, securities laws, etc… that apply to everyone, including lawyers.
a proceeding in which the applicant is being prosecuted, but rather, an investigation of conduct of an applicant for the purpose of determining whether he shall be admitted
Problems with drug abuse and mental illness à a lawyer with these problems is not a very good person for clients to count on
Focus is on protecting the public interest
Debt? à Concern about whether the applicant has fiscal prudence
History and Process of Lawyer Discipline
In most states, the highest court runs the disciplinary system, usually by setting up an independent office with paid staff attorneys to investigate and prosecute charges against lawyers
Process of Discipline: complaint made by client/lawyer, bar counsel investigates complaint, charges filed if warranted by investigation, hearing committee conducts hearing, makes factual findings, recommends sanctions, decision are reviewed by the highest state court
Private sanctions—the lightest form of discipline—are imposed twice as often as any other type of sanction.
Public reprimand- case made public and notice probably published in the bar journal announcing the decision
Most common problems are fee disputes and delays in completing work and low quality job performanc
Grounds for Discipline