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PROFESSIONAL DISCIPLINE

One of the characteristics of a profession is a code of ethics. A profession involves, among other things, a sense of service and responsibility to the community, and the conduct required of a professional is delineated in a code of ethics for that profession. A lawyer’s code of ethics deals with his or her relations with clients, other lawyers, the court, and the public (American Bar Association, 2016).

The legal profession has long been concerned with the ethical forms under which lawyers operate. In 1908, the ABA published its Canons of Ethics. In 1969, it was revised and called the Model Code of Professional Responsibility. The standards of professional conduct promulgated by the code were adopted by most states. The code covered a variety of important rules from representation of conflicting interests and preservation of clients’ confidences to matters of professional etiquette. In 1977, the ABA decided that the code was insufficient in view of the changing nature of the profession and established a commission to come up with a new, more realistic, and more practical set of ethical rules.

In 1983, the ABA adopted the Model Rules of Professional Conduct and Code of Judicial Conduct (American Law Institute, 1989). It contains a series of guidelines and rules on matters such as fees, confidentiality of information, certain types of conflict of interest, safekeeping property, UPL, advertising, and reporting professional misconduct. Some of these are from time to time modified at the ABA’s annual meetings.

The 2016 edition of the Model Rules of Professional Conduct provides an up-to-date resource for information on lawyer ethics. The topics include:

  • • Client-lawyer relationship. Addressing issues such as competence, fees, confidentiality, conflict of interest, and safekeeping property
  • • The lawyer as counselor. The lawyer's role as advisor and intermediary
  • • The lawyer as advocate. On meritorious claims, expediting litigation, fairness and impartiality, trial publicity, the lawyer as witness, special responsibilities of a prosecutor
  • • Transactions with persons other than clients. Dealing and communicating with third parties and unrepresented persons
  • • Law firms and associations. Examining the right to practice; responsibilities toward partners, associates, and nonlawyer assistants; restrictions on right to practice
  • • Public service. Pro bono service and other community activities
  • • Information about legal services. Advertising and other communications with prospective clients
  • • Maintaining the integrity of the profession. Disciplinary and misconduct matters, including information on political contributions to obtain legal engagements or appointments by judge.

A serious weakness of the codes and model rules is that they are not always binding on lawyers, because local bar associations are not required to adopt them. The ABA exerts no control over state bars in this process. Furthermore, enforcement is not obligatory. Although the ABA advocates uniform standards in disciplinary procedures, it is unable to instrument uniform adherence.

Disciplinary authorities are supposed to make sure that only honest and competent people are licensed to practice law. In some states, the disciplinary committee operates under the auspices of the state court system. In others, the bar organization runs the disciplinary agency and investigates complaints but any sanctions are imposed by the courts. Although the procedures vary from state to state, the boards investigate complaints about alleged violations of professional rules of conduct.

In general, disciplinary sanctions, such as reprimand, suspension, or disbarment, are imposed only for serious instances of misconduct, such as criminal acts, mishandling of client’s property, and flagrant violation of certain rules of professional conduct, such as breach of confidentiality. Of course, unhappy clients can always sue their lawyers, and an indirect form of punishment is the very high cost of attorneys’ malpractice insurance (Rhode and Hazard, 2007). Although other rule violations rarely evoke formal disciplinary action, informal discipline may occur in the form of expressed disapproval and questions about one’s professional reputation.

Generally, and as noted earlier, the highest ethical standards are found among attorneys who work for large firms and represent corporate clients. Solo practitioners and other attorneys who represent individuals in cases that are characterized as “unsavory,” such as personal injury plaintiffs’ work, divorce, and criminal defense, tend to have lower ethical standards. As Herbert Jacob (1984:62) once noted, the more contact such attorneys have with lower courts, the less likely they are to comply with legal ethics: “The culture of lower courts—waiting around, exchanging gossip, litigating petty criminal and civil cases” promotes unethical conduct.

Punishments for violations of legal ethics include a reprimand, a temporary suspension of the license to practice law, or the revocation of the license. In his influential study, Carlin (1966:170) found that only about 2% of the lawyers who violated ethical norms were even processed by the bar’s disciplinary machine, and only 0.2% were officially sanctioned. In 1994, the ABA created a nationwide, online database of disbarred and censured lawyers, some 25,000 to start with, to keep track of lawyers who move from state to state (Stevens, 1994). The service is available to disciplinary authorities but not to consumer groups, because in case of the slightest inaccuracy, it could harm a lawyer’s reputation and lead to potential lawsuits. Discipline boards and state bar associations welcomed the service. Because each state regulates its own lawyers, discipline is complicated as lawyers become increasingly mobile and register in more than one state. Lawyers who are disciplined in one state can move to another, take the bar examination, and start over without alerting authorities or potential clients of the infractions.

Lawyers have an obligation to report known or suspected ethical violations by other lawyers according to the ethics rules and standards of the governing bodies (Rhode and Hazard, 2007). But most complaints against lawyers are filed by clients or initiated by the bar council. It is rare that lawyers or judges report lawyer or judicial misconduct. They fail to do so for one or more of several reasons:

  • They feel that nothing will happen if they do report an ethical violation.
  • They do not want to ruin someone's career.
  • They fear it would take too much time to testify in a disciplinary proceeding.
  • They do not know where to report the misconduct.
  • They are afraid of being sued if they do report misconduct.

Despite these reasons, it is unfortunate that more attorneys do not report alleged ethical violations by other attorneys that come to their attention. Their failure to do so harms public trust in the legal profession, and it also harms the general welfare of the clients and other parties with whom ethically corrupt attorneys interact. Because the legal profession, as with other professions, generally polices itself, the ethical violations that occur within its ranks can be reduced only to the extent that attorneys do report these violations, and only to the extent that disciplinary boards sanction the lawyers who commit them.

 
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