In the United States, attorneys are both advocates and officers of the court. As advocates, attorneys must zealously represent clients. As officers of the court, attorneys have social responsibilities demanding that they act truthfully and with integrity in both professional and personal dealings. On occasion, attorneys’ dual roles conflict, pitting client allegiances against the rules of professional responsibility and conduct. In such instances, attorneys face an ethical dilemma that can result in negative consequences for a client and/or disciplinary action for an attorney.
The legal profession is self-governing. Attorneys’ duties and ethical standards are determined by the American Bar Association (ABA). Established on August 21, 1878, the ABA is a voluntary, national organization of lawyers and law students. To provide minimum standards for attorney conduct, the ABA has established Model Rules of Professional Conduct. The goal of the Model Rules is to ensure that attorneys satisfy obligations to their clients and the profession. Though jurisdictional bar associations may impose their own occupational regulations, those regulations typically comport with the ABA’s Model Rules. Attorneys who fail to comply with the Model Rules or their jurisdiction’s occupational regulations may face disciplinary action ranging from minor sanctions to the suspension of professional licensure or disbarment.
Evaluating America’s legal system in the 19th century, Alexis de Tocqueville described attorneys as part of a noble and enlightened class. Today, praise for attorneys and their work has largely evaporated. The common portrait of attorneys paints them as combative adversaries teeming with greed and willing to subvert justice in a quest for wealth. Highlighting this popular conception of attorneys Supreme Court Justice Sandra Day O’Connor noted, “few Americans can even recall that our society once trusted and respected attorneys.” Like the public, many attorneys are also disheartened by the state of the legal profession. Researchers have found that most attorneys report low job satisfaction and growing discontent with the level of professionalism within the legal profession.
With the Model Rules, the ABA has attempted to address criticisms of the legal profession raised by the public and attorneys. Yet, many commentators argue that professional self-governance is impossible and that the Model Rules are a misguided attempt to clean up the image of the legal profession. To date, the Model Rules have largely been ineffectual, doing little to improve perception of attorneys or the legal profession. Moreover, attorneys report dissatisfaction with the ABA’s efforts to regulate conduct, suggesting that the Model Rules are oppressive and counterproductive.
History of the Model Rules
Established in 1887, the first variation of the Model Rules was the Alabama Code. That code, drafted by attorney and future governor of Alabama Thomas Jones, was the first to codify standards of ethics for the legal profession, describing the roles and duties of practicing attorneys. Following its drafting, several states adopted the Alabama Code. In 1908, a commission established by the ABA drafted the Canons of Ethics, a second comprehensive body of ethical standards. A restatement of the Alabama Code, the Canons of Ethics became more broadly disseminated and were ultimately adopted in all U.S. jurisdictions. In 1969, yet another commission of the ABA revisited the Canons of Ethics. Created by ABA President and eventual Supreme Court Justice Lewis Powell, the committee updated the Canons of Ethics, producing the Model Code of Responsibility. Though the Model Code of Responsibility was organized around nine canons of ethics, it was very similar to its predecessors, prompting some commentators to note that the rules governing attorney ethics and conduct had changed little since the promulgation of the Alabama Code in 1887.
The Model Code of Professional Conduct is still enforced in approximately 10 U.S jurisdictions. In 1977, however, the ABA established the American Bar Association Commission on Evaluation of Professional Standards. Chicago attorney Robert J. Kutak chaired the commission. The commission undertook the task of revamping the Model Code of Responsibility in the wake of the Watergate incident, a scandal involving several attorneys that ultimately led to the resignation of President Richard M. Nixon. After six years of deliberation, the Commission published the Model Rules of Professional Conduct. Two-thirds of U.S. jurisdictions subsequently adopted the Model Rules, and in all U.S. jurisdictions the Model Rules serve as the recognized minimum standards of attorney conduct. The most controversial aspect of the Model Rules was the notion that attorneys’ are more than client advocates. The Model Rules make clear that attorneys have additional responsibilities to society and the legal profession at large.
The ABA Model Rules
The ABA Model Rules generally fall into two categories, those that govern an attorney’s role as an advocate and those that govern the legal profession as a whole. The Model Rules specify eight topics that fall into these two general categories: client–lawyer relationship; attorney as counselor; attorney as advocate; transactions with persons other than clients; law firms and associations; public service; information about legal services; and maintaining the integrity of the profession. In all instances, the goal of the Model Rules is to ensure that attorneys conduct themselves with integrity in their dealings with clients, other attorneys, the court, and the public. Yet, as many commentators note, these provisions can often conflict, creating ethical dilemmas for attorneys.
The Attorney as Advocate
For the public, an attorney’s most familiar role is as a zealous client representative. Several provisions of the Model Rules define and reinforce this role. For example, the Model Rules require that an attorney must provide a client with competent representation, defined as the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The Model Rules also address attorney–client confidentiality, noting that an attorney may but is not required to reveal information relating to the representation of a client without informed consent if revealing such information will prevent reasonably certain death, substantial bodily harm, or serious financial injury. Numerous other provisions of the Model Rules also establish duties relating to a lawyer’s role as client advocate including provisions specifying when an attorney’s representation of a client results in a conflict of interest, governing the safekeeping of client property and the termination of the attorney–client relationship, and defining how an attorney may advise a client on legal and nonlegal issues. In general, the Model Rules require that attorneys maintain a high level of professionalism while.
Governing the Legal Profession
Provisions of the Model Rules also establish minimum ethical standards relating to the practice of law. These provisions address an attorney’s duty as an officer of the court, regulating an attorney’s interactions with the court and other attorneys. For example, the Model Rules require that when advocating for a client, an attorney may not bring or defend a proceeding that has no basis in law or fact. In short, the ABA forbids attorneys from engaging in frivolous claims. The Model Rules also mandate that an attorney make reasonable efforts to expedite litigation and may not misrepresent law or fact in dealings with a court or tribunal. Along these lines, an attorney must also bring to light controlling prior law or precedent that contradicts his or her client’s position.
Conflicting Provisions of the Model Rules Legal scholar Eugene Gaetke suggests that “two antagonistic models describe the role of lawyers in our legal system.” Certain provisions of the Model Rules reflect this statement. For example, the Model Rules require that in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Contrast this provision with those mandating zealous representation of a client. Thus, as Gaetke notes, a lawyer in such a situation faces an ethical quandary, forced to decide whether to subordinate the interests of the client or those of the judicial system and the public.
Other instances may also require that a lawyer ignore vested client interests. Consider a scenario in which a criminal defendant admits guilt to an attorney of record, forcing the attorney to weigh responsibilities to the client against “the pursuit of truth and justice.” As scholars Michael Asimow and Richard Weisberg contend, in such circumstances, a lawyer might act as a “weak adversarialist.” In such cases, lawyers are “less concerned with … zealous advocacy, protection of client confidences, and procedural justice, and more concerned with the pursuit of substantive justice.” Authorized by the Model Rules, this position allows an attorney to “do less than the lawyer’s adversarial best,” and to a degree, subvert responsibilities to the client in favor of obligations to the justice system. Again, this difficult decision forces a lawyer into an ethical dilemma.
Perceptions of Attorneys
Though the ABA has promulgated the Model Rules to ensure honesty and trustworthiness among practicing attorneys, studies reveal that the Model Rules have done little to enhance the reputation of attorneys or the legal profession. If one attends enough social functions, one will undoubtedly encounter “a lawyer joke.” Focusing on the undesirable characteristics of attorneys, these quips often center on an attorney’s perceived singular focus on amassing wealth. Many make light of an attorney’s role as advocate, highlighting the claim that a lawyer fills an unnecessary role in the American justice system. Such attempts at humor illustrate a pervasive sentiment in the United States. Research reveals that roughly three-fifths of U.S. citizens believe that attorneys are greedy, while one-half feels that attorneys charge excessive fees.
Research also suggests that the public has little confidence in the honesty of attorneys. Merely one-fifth of the public would characterize attorneys as honest and ethical. Conversely, one-third of Americans think that attorneys are less honest than most people. The public also blames lawyers for the supposed shortcomings of the legal system. Members of the public often criticize the legal system as too cumbersome and too easily manipulated by those who can afford legal representation. Relatedly, two-thirds of Americans feel that attorneys care little about justice, while one-fourth believe that attorneys unnecessarily manipulate the legal system for personal gain. One-half of Americans feel that attorneys file too many lawsuits, while three-quarters think that the country has too many lawyers.
The Self-Governing Dilemma
Some commentators argue that the Model Rules have failed to change the public’s perception of attorneys and do little to protect clients. They contend that the Model Rules are ineffective precisely because they focus entirely on altering the public perception of attorneys and the legal profession while failing to actually police the profession. Legal scholar Deborah L. Rhode has suggested that the ABA’s self-governing structure is the root of the problem.
In all U.S. jurisdictions, attorney discipline falls under the purview of state supreme courts. Yet, as Rhode notes, courts “have insufficient time, interest or capacity to exercise that authority efficiently.” She points out that courts’ caseloads and lack of expertise in the area of professional discipline often make it difficult and impractical to pursue matters of attorney misconduct. Moreover, judges and the
lawyers they oversee share similar backgrounds and worldviews, and often maintain mutually beneficial relationships. These factors, Rhode asserts, provide a disincentive for courts to diligently pursue possible instances of attorney wrongdoing.
As a result, courts typically delegate the task of policing attorney conduct, appointing commissions and organizations as gatekeepers. These commissions and organizations are theoretically independent, but, as Rhode explains, are most often made up of attorneys and are closely aligned with the bar. Similarly, though virtually all jurisdictions require the reporting of professional misconduct, attorneys seldom initiate complaints against fellow attorneys. As a result, only serious infractions receive attention, leaving the public unprotected and the legal profession with a precarious reputation.
Bibliography:
- Binnall, James M. “Convicts in Court: Felonious Lawyers Make a Case for Including Felons in the Jury Pool.” Albany Law Review, v.73 (2010).
- Cohen, James A. “Lawyer Role, Agency Law, and the Characterization ‘Officer of the Court.’” Buffalo Law Review, v.48 (2000).
- Gaetke, Eugene R. “Lawyers as Officers of the Court.” Vanderbilt Law Review, v.42 (1989). Gillers, Stephen. “How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession.” Pepperdine Law Review, v.40 (2013).
- O’Connor, Sandra Day. “Address at the University of Oregon Dedication of the William W. Knight Law Center: Professionalism.” Oregon Law Review, v.78 (1999).
- Rhode, Deborah L. In the Interests of Justice: Reforming the Legal Profession. New York: Oxford University Press, 2000.
- Rhode, Deborah L. and Alice Woolly. “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada.” Fordham Law Review, v.80 (2012).
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