Legal Ethics
MUCH OF WHAT LAWYERS DO, AND DON’T DO, is dictated by the rules of ethics, known in some states as the Rules of Professional Conduct or Professional Responsibility. They set out lawyers’ responsibilities and govern everything from communication, confidentiality, and fees to safeguarding property, trial publicity, and responsibilities for employees. But of course, ethics goes beyond following the rules. We’ll talk about some common ethical issues that might arise in fiction: conflicts of interest, representing multiple defendants charged with the same crime, and lawyer-client sexual relationships. We’ll also look at the lawyer as witness, discipline, and readmission after disbarment.
Is there such a thing as legal ethics?
Yes, of course—but you knew I’d say that, didn’t you?
The public sometimes perceives that lawyers lack ethics, in part because of the occasional bad apple, but also because of a failure to understand or appreciate the lawyer’s role. The adversarial system means lawyers advocate for their client’s position—as long as that position is supported by the law or makes a good-faith argument for extension of the law. And, lawyers often take on unpopular clients. At times, those roles put lawyers in conflict with accepted standards in society. Examples might include harsh cross-examination that casts a witness in a poor light or seeking acquittal for a client “everyone knows” is guilty.
Each state bar establishes ethical standards through rules of professional conduct, based on the ABA’s model rules. The rules are meant to protect the public and individual clients and to give lawyers guidance in sticky situations. Most state bars have an Ethics Committee that reviews proposed rules changes and issues opinions on specific questions of law and ethical conduct, often with the advice of a state bar lawyer or a professor of ethics.
Of course, ethics goes beyond the written codes, which address specific recurring situations and establish, as the voice of a considered, knowledgeable group, what a lawyer should or must do. Some rules establish minimum standards, such as for communication with a client; others dictate required actions, such as rules controlling deposits of clients’ funds.
Many state bars now require lawyers to take regular continuing legal education (CLE) classes on ethics. Allegations of ethical violations can’t be used as a trial tactic, although lawyers do have an obligation to report clear violations to the bar. Malpractice is not of itself an ethical violation, or vice versa, though there can be some crossover.
TIP: Lawyers concerned about ethical dilemmas often consult other lawyers, state bar counsel, or professors of legal ethics. Your characters might do the same or keep their doubts to themselves, not wanting to choose between competing arguments.
What’s a conflict of interest?
Simply put, it’s any situation where the lawyer’s interests may conflict with those of the client. The possibilities are limitless. Common situations where real and fictional lawyers need to be alert to potential conflicts:
• How do a potential new client’s interests relate to those of existing or former clients?
• Business transactions with clients or those that are adverse to a client are barred. This doesn’t mean a lawyer can’t have dinner in a client’s restaurant, just that he shouldn’t invest in it, unless it’s a public company.
• Substantial gifts from clients are prohibited, particularly “testamentary gifts”—that is, by will—except among relatives. A restaurateur can give his lawyer free dessert, but not a share in the business.
• Financial assistance to clients is strictly limited. You can buy your client lunch, or advance him the costs of a lawsuit, but if you want to advance him money for living expenses from a hoped-for settlement, check the rules closely.
• When a lawyer can be paid by someone other than the client is strictly controlled. Common examples include insurance companies hiring counsel to defend insureds in lawsuits, under the policy terms, or a parent who pays for representation of a young criminal defendant. The lawyer-client relationship is with the client, regardless who pays, and all duties are owed to the client.
The lawyer-client relationship is with the client, regardless who pays, and all duties are owed to the client.
• In settling civil cases, a lawyer representing more than one person must be extremely careful and may need to bring in other lawyers to evaluate offers and advise the clients.
• Specific rules apply to current and former government lawyers, and to former judges. When a former government lawyer joins a law firm, conflicts could be extensive. Notice and screening procedures have been established; otherwise, former prosecutors or agency lawyers might have trouble changing jobs.
Some conflicts can be waived by the client, while others can’t—they’re just too serious. If a conflict prevents a lawyer from representing a particular client, the conflict is “imputed” to the rest of his or her law firm, and no lawyer in the firm may take the case. Lawyers should check for potential conflicts of interest before taking a case. If a conflict surfaces later, he’ll need to withdraw from the case.
If a conflict prevents a lawyer from representing a particular client, the conflict is “imputed” to the rest of his or her law firm, and no lawyer in the firm may take the case.
Here’s a twist for real and fictional lawyers who aspire to write about their cases: A lawyer may not make or negotiate an agreement with a client giving the lawyer “literary or media rights to a portrayal or account based in substantial part on information relating to the representation,” although he may do so once the representation ends (Model Rule 1.8(d)). Such an agreement would create a conflict between the lawyer’s personal interests and those of his client, and could affect his judgment, because what’s best for the client during the case might not be best for the story.
Conflicts of interest can become pretty technical, and dicey, ethics problems. If you plan to use one to complicate your fictional lawyer’s life, look at the specifics in Model Rules 1.7–1.12, or talk to an expert about the options. Conflicts can make things real uncomfortable real fast—bad in real life, but great in fiction.
How does a lawyer withdraw from a case?
Very carefully. A lawyer representing a client in a specific transaction, e.g., a business or real estate purchase, or ongoing matters, such as advising a business on employment or tax issues, has a different task than a lawyer involved in litigation. And, of course, the reason for the withdrawal makes a difference, too. The lawyer’s first obligation is to make sure that the client’s interests are not harmed or neglected in the process of “disengaging.” He can’t simply stop work on matters with time limits because his invoices have gone unpaid. He should first communicate with the client and tell him that if the bills aren’t paid by a certain date, he will withdraw. However, if a document is already prepared, he needs to file it. If it’s not prepared, he may need to do the work anyway and risk not being paid, or request an extension from the court, depending on the circumstances.
Withdrawals during litigation may be governed by the Rules of Professional Conduct or by state statute. Typically, the lawyer must file a motion with the court requesting “leave,” or permission to withdraw. He’ll need to state the reasons, e.g., unpaid bills, inability to locate the client, lack of cooperation, or an irretrievable breakdown in communication. He must also give written notice of the client’s last known address, so the court and opposing counsel can communicate directly with the former client. Leave to withdraw may be refused if trial is in progress or fast approaching, especially in criminal cases, where a waiver of the right to speedy trial may also be needed.
Most written fee agreements give the lawyer the right to withdraw if he isn’t paid or if the client does not tell him the truth, withholds information, or fails to cooperate with the lawyer.
Disputes often arise over the files. Generally, the file belongs to the client and must be given to him, although the lawyer may retain any “work product,” that is, material he prepared, such as research memos or strategic analyses. The lawyer can keep a copy of the entire file, at his own expense. If the disengagement is friendly, the lawyer may talk with the client’s new lawyer to bring him up to speed. But if the withdrawal is because of a newly discovered conflict of interest, it’s a good idea not to talk, to avoid the risk of passing on privileged information.
If withdrawal doesn’t require a court order, the smart lawyer confirms the end of the lawyer-client relationship with a “disengagement letter,” expressly terminating the relationship and outlining the work he’d been retained to do, what’s been done and what remains, and providing any relevant deadlines or statutes of limitations.
Can a lawyer represent two people charged with the same crime?
Generally, no. When two defendants are charged with the same crimes, or with different charges arising out of the same incident, there’s a good chance that one defendant will implicate the other. That would create an impermissible conflict of interest if they shared the same lawyer. While some conflicts can be waived, this isn’t one of them.
Even so, some sharing of information and resources is likely. For example, in financial or environmental crimes and conspiracies charged against the officers of a corporation, the cases are often tried jointly and defense counsel coordinate their strategy. The obvious exceptions are cases where one defendant shifts primary blame to another, as in the felony murder case of the young man who lent his car to his friends and found himself charged along with them.
Does a lawyer violate something—besides common sense—if he sleeps with a client who isn’t his wife?
Yes. Rule 1.8(j) of the Model Rules says: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” If the conduct results in a complaint to the bar association, sanctions are possible. We’ll talk more about sanctions and the disciplinary process in a minute.
Even if the personal relationship predates the professional, the lawyer should consider whether it will interfere with his independent judgment or limit his ability to represent the client properly. The rule does not prohibit sexual relationships with former clients.
Why the ban? We’ve talked about the lawyer’s “fiduciary” obligations to the client; that is, that the relationship is built on trust. And, it’s almost always unequal. A lawyer has a basic obligation not to misuse or abuse the client’s trust. Whenever the relationship becomes emotional, either person’s judgment can be impaired. There is tremendous potential for undue influence and for harm to the client’s interests, which he or she may not recognize until too late.
If your fictional lawyer just has to do it, deepen the characterization with a moment of doubt.
Can a lawyer testify for or against a client?
Only in very limited situations. For lawyer-witnesses, silence has two sources: the attorney-client privilege and the rules of ethics. The privilege, established by statute, belongs to the client, and only the client can waive it, e.g., by authorizing the attorney to speak or by revealing the contents of the conversation to someone else. A conversation is not privileged if it occurs in the presence of a person not covered by the privilege. For example, if the client’s girlfriend is in the room when he talks to his lawyer, no privilege arises, but if the third person is the lawyer’s paralegal, the conversation is privileged.
If the privilege doesn’t apply, the attorney may testify, subject to the second source of silence, the rules of ethics. Under the American Bar Association Model Rules, if the testimony involves information relating to the representation—e.g., what the client said about a crime, his own negligence, the sources of money he used to pay fees—the lawyer can testify in three situations:
1) only if the client gives “informed consent";
2) the testimony is necessary in carrying out the representation and therefore implicitly authorized; or
3) “to the extent the lawyer reasonably believes necessary” in the following circumstances:
• “to prevent reasonably certain death or substantial bodily harm,” e.g., if the client makes a threat the lawyer thinks he’s likely to carry out;
• “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;”
• “to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;”
• “to secure legal advice about the lawyer’s compliance with these Rules”—e.g., when the lawyer faces an ethical dilemma and consults a colleague or expert;
• “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Examples might include a claim for fees, a malpractice claim, a criminal or civil claim alleging fraud by the lawyer and client acting together, a claim of ineffective assistance of counsel in a criminal case, or a lawyer discipline proceeding; or
• to comply with other law or a court order.
Note that not every state has adopted the Model Rules verbatim. (The Model Rules are simply guidelines, and states may review and update their own rules when they please, as they please.) Some states expand the first exception to include property crimes. Some did not adopt the second and third exceptions, which allow disclosure to prevent fraud or crime causing financial or property damage, or to address damage from crime or fraud that has already occurred, if committed using the lawyer’s services. Say bad guy Gary sold good guy Harry a house, concealing his knowledge that it had been used as a meth lab and needed expensive restoration; the lawyer who wrote the real estate contract could not reveal confidential information about Gary learned in representing him unless those exceptions were in place.
How are lawyers officially sanctioned or disciplined?
State systems vary in structure and terminology. The state bar or regulatory agency has an office of bar counsel or disciplinary counsel that handles complaints, typically from clients or other lawyers, but sometimes from judges or other persons.
According to a 2009 ABA Survey on Lawyer Discipline, there are about 1.42 million lawyers with active licenses nationwide, ranging from 2,200 in Vermont to nearly 170,000 in California. The disciplinary agencies received about 120,000 new complaints. Many were dismissed for lack of jurisdiction—e.g., they involved claims of malpractice or fee disputes, an unsuccessful case, or a personality conflict, but not possible rules violations—with about 76,000 of the complaints investigated. Ultimately, 5,507 lawyers, or.3 percent, received a private or public sanction; 823 lawyers were disbarred—489 involuntarily and 334 with consent (typically, because the lawyer accepts the inevitable). That’s.05 percent of all lawyers.
The investigation process varies, so check the state bar website for your story state. However, one thing is the same all over: that letter from disciplinary counsel is the scariest thing a lawyer can get in the mail, short of a box with a live snake or a severed finger.
That letter from disciplinary counsel is the scariest thing a lawyer can get in the mail, short of a box with a live snake or a severed finger.
While investigations themselves are typically confidential, that changes once discipline is imposed. Some states make public the details of an investigation resulting in public sanctions, while others identify the lawyers, rules violated, and sanctions imposed but keep the details confidential unless the lawyer consents to disclosure. Discipline may include private sanctions, such as a letter of admonishment, or public sanctions, including reprimand, censure, suspension, or disbarment. Payment of costs may be ordered, and conditions such as addictions counseling or use of an approved mentor may be imposed.
Without a doubt, the column reporting on lawyer discipline is one of the most popular features of the state bar journal. Train wrecks are both
frightening and fascinating. The sex cases make good reading for the myriad ways lawyers can exercise astonishingly bad judgment.
How are lawyers disciplined by the bar viewed by their colleagues?
With fear, terror, disbelief, repulsion, pity, sadness, love, and astonishment. The response depends upon the conduct, and on the relationship between the lawyers. A lawyer who’s always been considered a bit shady and is reprimanded for a minor rules violation will be watched more closely. But if he’s suspended for a serious violation, opposing counsel will be very wary of him in future cases. If the conduct that prompts the discipline is unrelated to the practice—a criminal conviction for drug possession, or domestic violence—individual reactions will vary, but professional relationships may be little changed.
Alcoholism and mental illness play a role in far too many ethical lapses. Most states now require lawyers to take continuing legal education classes in ethics, and some require “SAMI” (substance abuse and mental illness) education.
Your fictional lawyer may come back to the practice after being sanctioned, determined to redeem himself and prove that the problems of the past are past. Or, he may be unchastened and carry a grudge the size of Kansas. Mess up his marriage, his friendships, and his case load, give him one loyal client or referral source, and see what happens.
Can a disbarred lawyer ever practice again?
Yes. In most states, a disbarred lawyer requesting reinstatement goes through the same application process, including character and fitness reviews, as a new graduate. There’s a waiting period, typically five years, although some states allow permanent disbarment in particularly egregious cases. The applicant must also show compliance with all requirements of the discipline, including payment of fines or restitution. If the disbarment resulted from a criminal conviction, the sentence must have been completed. If drug or alcohol use were involved, evidence of successful treatment is required. There must have been no subsequent professional misconduct and the lawyer must admit the wrongdoing. He’ll have to show he’s kept up with the law, usually by taking continuing legal education classes, although if he’s been away a long time, he may need to repeat some law school classes or retake the bar exam. Any hint that he practiced law while disbarred is a serious obstacle, because it shows a disrespect for the profession that admissions committees take very seriously.
In most states, a disbarred lawyer requesting reinstatement goes through the same application process as a new graduate.
A reinstated lawyer has no obligation to inform new clients of his past disbarment. However, disciplinary results are public, even in states where the details aren’t disclosed, so a savvy client could do some quick research online, or call the bar. Does someone in your story carry a grudge and spread news or false rumors of your fictional lawyer’s past?
The bar commission may hold a public hearing to hear evidence for and against reinstatement. Conditions may be imposed, such as working with an approved mentor, limiting the scope of practice, practicing with another lawyer who handles the trust account, or maintaining sobriety. A lawyer disbarred in one state is typically disbarred in all other states where he’s admitted through reciprocal discipline; reinstatement must be sought in each state separately.
Famous disbarments: Spiro Agnew was disbarred in Maryland in 1974 after pleading no contest to tax evasion charges. Richard Nixon resigned from the California bar, but the New York bar would not accept his resignation unless he acknowledged his lack of a defense to obstruction of justice charges related to Watergate; he refused and was disbarred in 1976. He resigned from the U.S. Supreme Court bar before any action was taken against him. Several other lawyers were also disbarred for their role in Watergate, including John Dean, Gordon Liddy, and Donald Segretti.
F. Lee Bailey was disbarred in Florida in 2001 on several charges stemming from using millions of dollars of a client’s stock—which the client later agreed to forfeit to the government in his own criminal case—as collateral for personal loans. He’d been admitted in Massachusetts as a new lawyer in 1960, but was disbarred under reciprocal discipline; his application for reinstatement in Massachusetts was denied.
And in 2001, facing disciplinary action, Bill Clinton accepted a five-year suspension and fine in Arkansas. In exchange, he was not charged with perjury for lying about his relationship with Monica Lewinsky. He was suspended from the Supreme Court bar and resigned, no doubt to avoid the infamy of being tossed out.