The entire point of this article is to explain the rules and regulations that help keep lawyers in check.
Institutions that Regulate Lawyers
Lawyers take pride in being “self-regulated.” That is, lawyers have a code of ethics and are almost entirely governed by the judicial branch. This means that lawyers rules are likely more lenient than they would be had they been governed by legislatures, but it also provides freedom and flexibility to provide representation to those who might otherwise oppose the government, without fear of governmental retaliation against the lawyer.
The Highest State Court
Typically, the highest state court (usually a Supreme Court but may go by another name) has the ability to:
- Adopt ethics code and rules that govern lawyers
- Set the standards for licensing
- Supervise investigation of complaints against lawyers
- Oversee sanctions imposed by lower courts
- And decide appeals on lawyer disciplinary cases.
Depending on the state, some of the courts claim exclusive right to govern lawyers. In other states, the courts allow the other branches of government to regulate some lawyer laws.
State Bar Associations
There are two types of state bar associations: voluntary or unified. Unified bars are those that are delegated some responsibilities from the state’s highest court. In states where there is a unified bar, being a member of the bar is often requirement of being licensed.
There is no need for there to be only one bar association within the state. For instance, in California, there are two bar associations. One governs regulation and discipline of lawyers while the other focuses on leadership and networking functions.
In Iowa, the Iowa State Bar Association (ISBA) also issues advisory opinions.
Discipline Agencies
Agencies that investigate lawyer misconduct.
American Bar Association
The ABAs role in legal ethics is primarily through the drawing of the Model Rules of Professional Conduct. These rules, although not binding upon first draft, are often adopted by the court’s throughout the country.
The ABA has also been helpful developing criminal ethics (for both prosecution and defense), and Model Rules of Judicial Ethics.
Additionally, the ABA issues advisory opinions that are usually relied on by the states.
American Law Institute
The ALI is the primary organization responsible for draft the Restatements of Law. When it comes to lawyer ethics, they drafted the Restatement (Third) of the Law Governing Lawyers. Although this law differs in some aspects to the Model Rules of Professional Conduct, they are often also adopted by court’s throughout the country.
Other Courts
Lawyers may also be subject to claims of malpractice which are ruled on by the courts. Additionally, there are litigation rules that lawyers must follow or they may become subject to sanctions.
Lawyers are also liable to other claims such as torts, breach of fiduciary duty, breach of contract, etc. In these cases, the ethical rules may drive the cases, but they are not identical to malpractice rules. For instance, a lawyer may make a mistake that results in a malpractice case, this might not necessarily mean that there was an ethical violation. However, repeated mistakes may result in an ethical violation.
In summary, malpractice and ethics are related, but they have different purposes. Malpractice claims makes the victim whole while the ethics claims are designed to police the lawyers.
Legislatures
Lawyers are still subject to the law that governs the general public. In some cases, legislatures may also create statutes that make lawyers more liable while others provide exemptions.
Administrative Agencies
Lawyers must often be admitted to the agency in question before they are allowed to represent cases dealing with that agency. A large reason for this is because these agencies may have additional procedural and ethical rules that attorneys are expected to follow.
Prosecutors
If a lawyer engages in a crime, they may be subject to criminal prosecution.
Malpractice Insurers
Many malpractice insurers have rules that the attorneys need to follow if they want to file a successful claim. This can be seen as a form of “private law” where the parties contract what rules are going to be followed. Often, these rules tend to encourage attorneys to perform with better ethics than any other public agency.
Some states require lawyers to carry malpractice insurance. In Iowa, there is no requirement to carry.
Law Firms
Firms often have an internal set of ethical rules, the purpose of which is to help prevent their attorneys from being involved in ethical dilemmas.
Clients
Some larger clients like insurance companies have special rules (generally about how much time can be billed for a certain activity) within their agreements that attorneys need to follow.
State Ethics Code
Essentially, the ABA created model ethics rules which have been codified by the states (with some variations). Attorneys are subject to the ethics code of the state where they practice. If they engage in misconduct, they can be charged with a violation of that code and disciplined accordingly.
Judges can do two things with the ethics code: First, they can use it to determine the discipline of an attorney. Second, they can provide advisory opinions, explaining a rule (usually at the request of an attorney).
The Disciplinary System
If a lawyer engages in misconduct the disciplinary system flows as follows:
- Complaint is made about the lawyer
- Bar counsel investigates the complaint
- If there is no basis for the complaint the case is closed
- If there is a basis for the complaint, charges are filed.
- A hearing is conducted to gather facts and recommend a sanction.
- The decision is reviewed by an agency or highest state court who makes a final decision.
The issue with this process is that there are tens of thousands of complaints. Because of the insufficient means to discipline every complaint, many of them are dismissed (even if they have merit).
What happens if there is disciplinary action in one state but the attorney is licensed in multiple states. There is this concept of reciprocal discipline. The attorney is required to disclose that they were disciplined in one state. The other states where the attorney is licensed can then engage in the disciplinary process themselves.
Grounds for Discipline
The simple answer to this question is that a lawyer can really be disciplined for nearly anything. Lawyers can be disciplined for advising or assisting a client in committing a crime (intentional or otherwise), for committing a crime, providing false testimony, improper actions under the influence of drugs and alcohol, etc. However, the most common reasons an attorney faces discipline is for mishandling client funds or negligence within the client case (whether it be lying to the client about the status or not working on the case at all).
For instance, according to Rule 1.2(d):
“[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
In other words, attorney’s are not allowed to assist a client to engage in unlawful conduct. This could be as simple as faxing a document for the client (regardless of whether you know about the unlawfulness or not). It is your requirement as an attorney to make a good faith effort to ensure the document is not fraudulent or criminal.
Lawyers are also no allowed to skirt around this responsibility by assigning duties to others (e.g. an office staff signing instead of the lawyer).
Reporting Lawyer Misconduct
The Duty
Lawyers also have a legal obligation to report the known (not suspected) professional misconduct of other lawyers. See Rule 8.3. This is a good thing because it regulates the legal profession. However, there are some challenges with this rule as well. An Associate who reports a Partner could very easily harm the Associate’s career and reputation. According to the rule however, the violation needs to raise a “substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyers.” Additionally, the report needs to be made to the appropriate authority (not a senior partner within a firm).
Law Firms and Associations – Partners, Managers, and Supervisory Lawyers – Rule 5.1
Partners (and other senior personal) must engage in reasonable efforts to ensure the law firm is run ethically.
Law Firms and Associations – Responsibilities of a Subordinate Lawyer – 5.2
A subordinate lawyer can still be be subject to discipline even if they were directed by a senior lawyer to do something.
Attorney Discipline in Iowa
Iowa rules nearly mirror the ABA.
The process starts with a complaint of the lawyer’s misconduct. The board determines if the complaint has merit. If the complaint has merit, then the board (made up of attorneys and a few lay individuals) investigates the clam.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
