In re Landry 276 In the News 279 Video Case Study 280
Appendix A NALA Code of Ethics and Professional Responsibility 281
Appendix B NALS Code of Ethics 283
Appendix C National Federation of Paralegal Associations, Inc. Model Code of Ethics and Professional Responsibility 285
Appendix D Rules of Professional Conduct 290
Appendix E ABA Model to California Rule Translation 308
End Notes 310
Case Index 319
Subject Index 323
Video Case Index
UPL: When Friends Ask for Help 36
UPL: Helping the Client without Practicing Law 71
UPL: Traditional Exceptions 71
UPL: Interviewing a Client 72
UPL: Working with a Witness 72
UPL: Working with Experts 72
UPL: Improper Supervision 72
UPL: Helping the Client Fill Out Forms 72
Privilege: Misdirected E-mail 105
Confidentiality: Need-to-Know Circle 105
Confidentiality: Public Information 105
Confidentiality: Disclosure of Damaging Information 105
Confidentiality: Family Exception? 106
Confidentiality: Attorney/Client Privilege 106
Conflict of Interest: Relationships with Clients 139
Conflict of Interest: Independent Paralegal 139
UPL: Disclosure of Status (Misrepresentation) 202
Fees and Fair Billing: Contemporaneous Timekeeping 202
Fees and Fair Billing: Using Time Effectively 202
Zealous Representation: When You Are Asked to Lie 263
Zealous Representation: Handling Evidence 263
Zealous Representation: Gifts to Judges 263
Zealous Representation: Candor to the Court 263
Zealous Representation: Signing Documents 280
Preface
Ethics for the Legal Professional has set the standard for professional responsibility textbooks for over twenty years. Since 1986, this text has led the pack— making critical changes in each edition to adjust to the different learning styles of our students, evolving teaching methodologies of our instructors, advances made possible by technology, and (of course) changes in the law.
Once again, Ethics for the Legal Professional has made a few bold changes: First and foremost, this eighth edition emphasizes finding and using your own state law. We can’t create a different edition for each state. Our challenge, then, was to make one edition flexible enough to teach the law of all fifty states. We did that by teaching and reinforcing important research skills. Rather than reading about some amorphous “model rule,” that we hope can one day be applied to some similar situation, beginning in Chapter 1 students are thrown head first into “here’s the issue, now let’s go find that law.” At the end of a brief (focused) exercise, students are armed with their own state law to apply to that everyday ethical issue. No foolin’ around. This stuff is real and immediately relevant. And, because it’s real and relevant, it’s more challenging (less dry, not so filling) and a lot more fun! (Caveat emptor: If you don’t have a sense of humor, you won’t like this textbook.)
In this edition, the student will find more references to specific Rules but will need to check references to the NALA, NFPA, and NALS codes. We took out the margin boxes about them. Instead, we focus on three primary items in the margin boxes: Key Terms (words you must understand for each chapter); Watch the Video (relevant videos from our collection to watch and apply the law you have just learned in a real-life situation—explained below); and Challenge Assignments (research for the student who is looking for more).
The eighth edition continues to tackle ethical issues in the frank, conversational style for which the author is well known. This book is purposefully written from the point of view of the paralegal. The lesson is “we should do this” and “we should avoid doing that” as opposed to “the paralegal should . . . or should not . . . ” The object is to draw the paralegal into the profession in a self-assured manner. Ethics can be scary. The eighth edition makes every attempt to put the student at ease, to use humor, where appropriate, and to keep the tone warm and the language user-friendly.
Our goals haven’t changed with this edition. Our promise remains the same: By the end of this course of study, the student will be able to recognize a potential ethical issue, put a name on it (this is a conflicts issue; this is a privilege issue; and so on), research possible courses of action, and make an educated decision about the next steps. We don’t expect any student to know the right thing to do in every ethical situation. We do expect the student to spot that ethical situation, name it, and then research state law. That means that throughout this eighth edition we ask the student to spot, name, research, find, and then apply your state law. The exercises throughout the book teach, guide, and then give the student a gentle push to do the work independently. Then we reinforce the lesson through more guided and independent practice.
We recognize that researching on the Internet can be the black hole of time, so we’ve provided a Web site that contains information about your state law. If you
can’t find your state law with our research guide, go to the Web site. Then, click on your state. It’s as easy as that!
Our Video Case Studies have gotten rave reviews from students and teachers! Just like the textbook, the videos are upbeat, funny when appropriate, and designed for critical thinking. Within a chapter, you will see a video icon in the margin to let you know that this is a good time to show a video, and assignable video case studies have been added at the end of each chapter. The video case studies can be accessed by instructors and students at www.pearsonhighered.com/careers.
We’ve changed the way we look at learning objectives in this edition, too! We begin each chapter with learning objectives. Along the way throughout each chapter, students will find “Check Your Understanding” questions and then, at the end, we have open-ended questions to see if those objectives have been learned. But there are also several different types of end-of-chapter exercises to meet the learning styles of all students. First, Key Terms are reviewed at the end of each chapter. There are open-response answers that correspond directly to the learning objectives of the chapter. There are critical thinking hypotheticals for class discussion or essay writing. These hypotheticals include the citation to the case on which each is based so students can discover how a court resolved the issues. There are collaborative assignments for small groups of students and assignments that include exercises such as discovering local resources or watching a movie looking for ethical issues. Each chapter includes “Cases for Consideration,” followed by short essay questions. These cases have been edited to focus the student’s attention on the ethical issues.
We took out many of the boxes that teachers said were distracting. Margin boxes are now restricted to Key Terms, Challenge Assignments, and Watch the Video.
We have also added an “In the News” article to the end of each chapter designed to engender lively classroom discussion about ethical issues that are in the news today. Here’s the point: Ethical issues go on around us every day, but not everyone will find them in the newspaper or trade magazines. By putting them directly into the text, we make the news more readily available, and we provide discussion questions to go along with each article.
appendices
Appendix materials are as complete as we could make them in the eighth edition. We have provided the NALA, NFPA, and NALS codes so the student doesn’t have to look to too many outside resources. We’ve provided an entire copy of the Rules of Professional Conduct, graciously loaned to us by several states. These Rules are word-for-word like the ABA Model Rules but are a compilation of the rules as they were adopted by the states. The ABA Opinion on how to handle old client files has been taken out.
New in this Edition
Each chapter has been updated for changes in the law and reorganized—ever searching for the perfect explanation and the clearest example. Here is a more complete list of the most important changes and clarifications in each chapter:
Chapter 1
• An expanded discussion of what education is required for lawyers
• A new discussion of NFPA’s certifications
• A new discussion about the authority of the Supreme Court of each state
• A reorganization of the chapter so that all of the lawyer information is in one place, followed by all of the paralegal information.
Chapter 2
• “Why Should the Practice of Law Be Limited to Lawyers?” has been moved to follow the explanation of UPL
• A discussion about LegalZoom and other online legal assistance has been added
• An expanded section on penalties for UPL.
Chapter 3
• This chapter has been completely reorganized (again) to more clearly compare and contrast attorney/client privilege with the duty of confidentiality
• The discussion of the effects of technology on confidentiality has been expanded and now includes sample confidentiality notices
• The discussion of the exceptions to the duty of confidentiality has been expanded
• There are new sections on offshoring and outsourcing legal work
• There is a new section on computer backup systems and how confidentiality can be maintained, even when you are backing up to the cloud
• An entirely new section on how to maintain confidentiality and change jobs.
Chapter 4
• A new discussion about how freelance paralegals can avoid conflicts of interest
• A more complete discussion of how personal relationships create conflicts of interest
• A new discussion about how to look for a new job while still maintaining the confidentiality of your present job
• A more complete discussion of how to get a waiver for a conflict of interest.
Chapter 5
• This chapter has been reorganized to clearly delineate the differences between advertising and solicitation
• Some attorney advertising examples have been added
• A more complete discussion of how technology has changed the subject of attorney advertising and solicitation
• “Runners” and “cappers” have been more completely explained
• The sections “Access to Justice” and “The Unpopular Client” have been moved to the end of the chapter
• A more complete discussion of moratoriums on contacting potential clients
Chapter 6
• The discussion of trust accounts has been moved to the end of the chapter and expanded
• A new section on unbundled legal services and fees
• A challenge assignment has been added on the subject of the tax consequences of settlements
Chapter 7
• The section heading of “other causes of action” has been deleted and the content moved to the section on who is responsible for negligence
• A new discussion about the supervisor’s duty to ensure competence
• A new discussion of ensuring competence in outsourced legal work
• A new section on competence in unbundled legal work
• Added information about nonengagement letters.
Chapter 8
• A new section on the importance of honest communication with the client
• An expanded discussion of the duty of candor to the court.
Chapter 9
• The discussion about the duty to report misconduct has been expanded and includes several new cases
• A new section on how an integrity issue will happen in real life with examples of how others have handled these situations.
resources for teaching
The following instructor supplements are available for download from the Pearson Instructor’s Resource Center. To access supplementary materials online, instructors need to request an instructor access code. Go to www.pearsonhighered.com/irc, where you can register for an instructor access code. Within 48 hours of registering, you will receive a confirming e-mail including an instructor access code. Once you have received your code, locate your text in the online catalog and click on the Instructor Resources button on the left side of the catalog product page. Select a supplement and a log-in page will appear. Once you have logged in, you can access instructor material for all Pearson textbooks.
Online Instructor’s Manual with test Item File
The instructor’s manual, written by the author, contains the author’s general thoughts about teaching ethics, sample syllabi, lesson plans, notes on teaching methods and tools, lesson lecture suggestions for each chapter of the text including activities, assessment suggestions, and answers to end-of-chapter review questions. The Test Item File allows you to generate quizzes and tests using questions.
PowerPoint Lecture Presentation
The PowerPoint Lecture Presentation includes key concept screens and exhibits from the textbook.
Student resources Online
The following student resources can be accessed at www.pearsonhighered.com/ careers.
Paralegal Professional Ethics Video Series
The following videos presented in the book are available at www.pearsonhighered. com/careers free of charge to adopters of the eighth edition.
● UPL: When Friends Ask for Help
● UPL: Helping the Client without Practicing Law
● UPL: Traditional Exceptions
● UPL: Interviewing a Client
● UPL: Working with a Witness
● UPL: Working with Experts
● UPL: Improper Supervision
● UPL: Helping the Client Fill Out Forms
● Privilege: Misdirected E-Mail
● Confidentiality: Need-to-Know Circle
● Confidentiality: Public Information
● Confidentiality: Disclosure of Damaging Information
● Confidentiality: Family Exception?
● Confidentiality: Attorney/Client Privilege
● Conflict of Interest: Relationships with Clients
● Conflict of Interest: Independent Paralegal
● UPL: Disclosure of Status (Misrepresentation)
● Fees and Fair Billing: Contemporaneous Timekeeping
● Fees and Fair Billing: Using Time Effectively
● Zealous Representation: When You Are Asked to Lie
● Zealous Representation: Handling Evidence
● Zealous Representation: Gifts to Judges
● Zealous Representation: Candor to the Court
● Zealous Representation: Signing Documents
ancillary and State Specific Material
Codes and cases related to ethics in many states have been collected and are available at this website. Chapter Assignments and Challenge Project Resources worksheets, additional instructions, and links to helpful Web resources are provided to aid completion of assignments.
CourseSmart
CourseSmart is an exciting new choice for students looking to save money. As an alternative to purchasing the printed textbook, students can purchase an electronic version of the same content. With a CourseSmart eTextbook, students can search the text, make notes online, print out reading assignments that incorporate lecture notes, and bookmark important passages for later review. For more information, or to purchase access to the CourseSmart eTextbook, visit www.coursesmart.com.
acknowledgments
reviewers
I am deeply grateful for the insights and contributions from the following reviewers:
Brian Craig, Globe University/Minnesota School of Business; Abby Fromang Milon, University of Central Florida; Julia Tryk, Cuyahoga Community College; Kylie M. Wheelis, Virginia College Online; Ronald A. Feinberg, Suffolk Community College; George William Jenkins, III, University of Memphis; Roberta Lahr, Mt. San Antonio College; Hillary Michaud, Stevenson University; Kathleen Mercer Reed, University of Toledo; Bruce M. Rands, Pikes Peak Community College; Carrie Vaia, North Hennepin Community College; and Jean Volk, Middlesex County College.
chapter one digital resources
• Video case studies
• Ancillary and State Specific Material
Available at www.pearsonhighered.com/careers
chapter one Regulation of tHe legal PRofession
{Hypothetical}
Paralegal Mary Rose acts as both paralegal and calendar clerk in the law firm of Attorney Smith. Smith asks Mary to calendar the date an answer to a complaint is due. Mary makes a mistake and calendars the date sixty days from the day the complaint was served instead of thirty days. As a result, Smith does not answer the complaint on time, and his client’s default is taken.
CHaPteR objeCtives
By the end of this chapter, you will know the answers to these questions:
• What Are Lawyers?
• What Is Required to Become a Lawyer?
• Where Do Lawyer Ethics Rules Come From?
• Where Are the Laws of Ethics for My State?
• What Is the Authority of the ABA Models?
• What Is the Authority of the State Supreme Court?
• How Are Lawyers Disciplined?
• What Are Paralegals?
• How Are Paralegals Regulated?
• What Does It Mean to Be “Regulated by the Courts”?
• Have Paralegals Considered Self-Regulation?
• What Other Choices Are Available for Regulating Paralegals?
Key Terms
Lawyer: a person educated in the law and who has a license to practice law
Attorney: another term for lawyer
Member of the bar: a person who is licensed to practice law may be referred to with this term
Bar association: an association of lawyers, bar associations may be mandatory (integrated bar) or voluntary, depending upon the state.
Juris Doctorate (JD) degree: a doctorate in law
Why Are We Here?
A discussion of the regulation of the legal profession would be brief and simple if all members of the legal profession subscribed to the same rules and were responsible to the same authorities. Like most things, it’s just not that simple. So, we begin our discussion of the regulation of paralegals with a discussion of the regulation of lawyers. After we understand how lawyers are regulated (including where their rules of ethics come from), we’ll take a look at what paralegals are, how they are regulated, and what rules of ethics apply to them. What we will find is that the rules of ethics for lawyers make them responsible for “regulating” the ethical obligations of the paralegals they employ. We will also see that paralegals are responsible for the same ethical obligations that are written by lawyers and to which lawyers subscribe. And we’ll find that paralegal organizations have written codes of ethics that reiterate these same ethical obligations. What about paralegals who don’t work for lawyers? That question has a more complex answer. Not all of the questions about paralegal regulation have answers here. Some of them will be up to you to answer. The future of the paralegal profession is yours. That’s why we’re here. We start, then, with an understanding of what lawyers are.
What Are Lawyers?
A lawyer (also called an attorney) is sometimes also referred to as a member of the bar. Membership in the bar (short for bar association) is a privilege that is given to people who have met certain requirements. These requirements include education, a bar examination, and fitness of character. Each jurisdiction also has its own additional requirements such as minimum age restrictions and/or mandatory fees.
What Kind of Education Is Required?
Typically, people who want to be lawyers attend a four-year college and then a threeyear law school. About half of all states require some undergraduate education, ranging from two years of college to a four-year degree. Most jurisdictions require a Juris Doctor (JD) degree. A Juris Doctor is the degree awarded upon successful completion of law school. (Juris is Latin for law.) Some states allow a law school student to take the bar examination (discussed below) before graduation. A few states, such as California, New York, and Virginia, allow applicants to the bar who have been educated by means of law office study (something like an apprenticeship). A handful of states, for example, California, Minnesota, and Oregon, allow law study through correspondence courses. Most of those states also allow law study online. Additionally, all states have some requirements for people who studied law outside of the United States. Just a few states require law students to have taken specific courses in law school. For example, Indiana, New Jersey, and Ohio require bar applicants to have studied legal ethics. Educational requirements are detailed and different for each state. If you are interested in finding out exactly what is required in your state, the American Bar Association’s (ABA) Comprehensive Guide is waiting for you at www.pearsonhighered.com/careers under “Ancillary and State Specific Material.” The ABA accredits law schools. California has many ABA-accredited law schools and many that are not accredited. Most states only have accredited schools
but now that a legal education is available through the Internet, states are having to take another look at whether this education is rigorous enough for admission to their bar. The ABA, as an accrediting body, can also take accreditation away or suspend a school’s accreditation. A recent example of that process can be found at www.pearsonhighered.com/careers under “Ancillary and State Specific Material.”
What Is the Bar Examination?
After the schooling requirement is fulfilled, in most states, people who want to practice law must take a “bar examination.” Also called the bar exam, this test is long, comprehensive, and grueling. (In California, the exam is three days long, and approximately 50 percent pass.) Bar exams across the nation are made up of essay questions and multiple-choice questions. Most but not all states have made the Multistate Bar Examination a part of their general bar exam. The Multistate Bar Exam is a six-hour, two-hundred multiple-choice questions exam. It is given on the same day in all of the states so that the questions and answers cannot be shared between a test taker in New York and one in California, for example. Most states also use the Multistate Professional Responsibility Exam (MPRE) as part of their general bar exam. The MPRE consists of sixty multiple-choice questions. Each question sets up a hypothetical ethical situation such as the one discussed here. It tests the ABA’s version of ethical codes for lawyers as well as the ethical codes for judges. Because the law is ever changing, the MPRE must also change questions or perhaps just change which answer is the correct one. Because MPRE cannot test any state-specific law, it tests for an understanding of general concepts of professional responsibility—something big and global such as this one on the propriety of writing a letter of recommendation for a bar applicant:
Good Friend has asked Attorney to write a letter of recommendation for Good Friend’s cousin (Cousin) who is applying for bar membership soon. Attorney has never actually met Cousin but Good Friend assures Attorney that Cousin is an upstanding young woman who will make an excellent lawyer. What should Attorney do?
A. Write the letter of recommendation based on Good Friend’s assurances about Cousin.
B. Write the letter only if Attorney has never heard anything bad about Cousin.
C. Conduct a personal investigation of Cousin and write the letter if Attorney is satisfied, after investigation, of Cousin’s good character and fitness to be an attorney.
D. Tell Good Friend that Attorney cannot write such a letter under any circumstances.
The answer to this question is C and would be C in all jurisdictions. We’ll learn all about the “fitness” requirement and letters of recommendation on the next few pages.
All of the states have different bar exams. Some exams have a “practical” component in which the examinee is, for example, given a mock-up “file” and asked to produce a memorandum of law, just as would happen on the job. These “practical” components were phased into state bar exams in response to complaints that the exam doesn’t test a person’s lawyering skills but, rather, determines how well the person can take a test on legal theory. Some states test many subjects of law on their
CHALLEngE AssIgnmEnt
Anyone can log in to the MPRE’s practice test on the National Conference of Bar Examiners (NCBE) Web site. All it requires is that you create a username and password. It doesn’t ask for any other information. Try it now and then take it again after you have finished your course of study in ethics.
If you are interested in finding out more about the MPRE, check out the NCBE Web site at www.ncbex.org
Key Term
Bar exam: exam taken by people who want to become lawyers
Key Terms
Good moral character: the absence of evidence of bad moral character, based on traits such as honesty, candor, fairness, trustworthiness, and respect for state and federal laws
Rehabilitation: to show that a person has regained good moral character
bar exam. Some test just a few subjects but expect the examinee to have greater depth of knowledge. Yet another group of states allows any graduate of that state’s law schools to become a member of that state bar without taking a test. (Wisconsin is an example.) This is presumably due to the state’s belief that anyone who can graduate from its law schools must have enough skill and knowledge to practice law. On the other hand, California, a state that has many law schools that are unaccredited by the ABA and the state’s accrediting body (the State Bar of California), is of the opinion that everyone is entitled to an education in the law, but if you want to actually practice law, you have to show that you’ve learned enough to pass the test—thus, the low passing rate on the California bar as compared with that of other states.
Is there a moral Character Requirement?
The requirement of “good moral character” seems obvious for bar membership. The question is, How do we measure it? The equation starts with this premise: Good moral character is assumed in the absence of evidence of bad moral character. For example, bar applications ask if the applicant has “ever been arrested for, charged with, or convicted of a criminal act.” Conviction of a crime does not automatically preclude bar membership, but there is an investigation of arrests and so on to see if there is evidence that the applicant does not have the good moral character required.
Some states publish standards of “bad” moral character. For example, a prior felony conviction will prevent you from being a member of the Mississippi, Missouri, and Texas bars. There is also a large body of case law on the issue of moral character requirements for bar membership. Cheating in law school probably will not disqualify you from becoming a member of the bar,1 but cheating on the bar exam probably will.2 Traditionally, telling the truth about prior misdeeds is more important than the actual misdeeds themselves.3 There are examples of people who have been convicted of murder later becoming lawyers. To gain bar membership, the former criminal has to show that he paid his debt to society and is rehabilitated, or that the person has changed for the better. People change. The people in charge of bar admission recognize that.4
Good moral character is also shown by letters of reference from people who have known the bar candidate for some time. If there are no complaints in your file and your references are good (one would think you would get references only from people who will say good things about you), you have proven good moral character. There is a rule of ethics that requires lawyers to tell the truth and to not omit any material facts when writing letters of recommendation for bar applicants. The same rule requires lawyers to respond to requests for information about bar applicants when asked by the admissions authority. Bar applicants must answer all of the questions in the application truthfully and completely. Refusing to answer questions is grounds for denying the application, as Mr. Konigsberg found out in the case we discuss in the following section. The bar application is long and asks questions that span the applicant’s lifetime. Some questions seem irrelevant to us, but they must be answered nevertheless.
A famous case on moral character is Konigsberg v. California State Bar.5 This case comes from the Cold War era, when many Americans were afraid of “the Communist influence.” Mr. Konigsberg’s record showed that he may have attended
Communist Party meetings and criticized U.S. participation in the Korean War. When Mr. Konigsberg’s application to the bar was denied, he sued the state bar. His case went all the way to the top: The U.S. Supreme Court did not believe that attendance at Communist Party meetings was enough to prevent him from being a member of the California Bar. When the California Bar denied his application again, Konigsberg sued again. In the next Konigsberg v. California State Bar6 (also known as Konigsberg II), the U.S. Supreme Court affirmed the California State Bar’s rejection of Konigsberg because of his refusal to answer certain questions concerning membership in the Communist Party. Refusing to answer the questions, while not grounds for supporting an inference that he lacked good moral character, was a sufficient impediment to the investigation of his application. From this case we glean the rule that all questions must be answered, even if the answer is not favorable to the applicant or seems irrelevant to the questions of competence to practice law and good moral character. There is a public policy reason for a good moral character requirement. The legal profession needs the public to know that the profession is looking out for the best interests of the public by not allowing people with “bad” moral character to practice law. Just as the profession needs to ensure members of the bar have appropriate education for the sake of the public, so does it need to ensure members are of good moral character. Logical, yes?
What Else Is Required?
A tax
States are permitted to levy an “occupational tax” on the practice of law.7 This is a tax on conducting the occupation of being a lawyer. In Connecticut, for example, the 2012 Attorney Occupational Tax was $450. In Texas, it’s only $200. In addition to paying a state occupational tax, lawyers in your area may have to pay a city or county occupational tax.
An Oath
After satisfying the requirements to become a lawyer, in many states the lawyer is “sworn in.” That means that the applicant must show up at a swearing-in ceremony or appear in front of a judge and take an oath to perform his or her knowledge skillfully and ethically in addition to support the constitution of his or her state and the Constitution of the United States. The applicant does not have to swear an oath that invokes the name of God, however, as invoking the name of God cannot be made a prerequisite to entering the practice of law.8 The next step is becoming a member of the bar association, and that typically involves paying dues and adhering to state regulations regarding continuing education. (Later, we will see that paralegal associations require continuing legal education, too.)
Proper titles
When you graduate from law school, technically you are a “JD,” meaning that you have a Juris Doctor degree. Only after you become a licensed lawyer you can call yourself “Esq.” (short for Esquire) or Attorney at Law or attorney or lawyer. To
CHALLEngE AssIgnmEnt
Is there an occupational tax on attorneys in your state? Try this Internet search to find out: “attorney occupational tax” + “yourstate.” Substitute the name of your state for “yourstate.”
Key Terms
Public policy: a course of action taken by a government for the good of the governed people Esquire: Esq. is a designation used by lawyers
Key Terms
Partner: a person who is a lawyer and a top member of a law firm that is a partnership
Member: a person who is lawyer and part of a limited liability partnership
Associate: a lawyer who works in a law firm who is junior to partners and members
Law clerk: a person who works for a law firm who is not yet a lawyer
Summer clerk: a law student who works for a law firm during the summer.
ABA: American Bar Association. A voluntary organization of lawyers from across the country. Its goal is to serve the legal profession.
call yourself by any of those titles and not be a member of the bar fits under the general category of the unauthorized practice of law, or UPL, which we cover in Chapter 2. Lawyers who are partners in law firms are called partners or members depending upon the legal form of the law firm: corporation, partnership, or limited liability company. The lawyers who work for the partners are usually called associates. People who are still in law school but work for lawyers are called law clerks. Because they are not yet licensed to practice law, law clerks do many of the same tasks done by paralegals, including factual and legal research and drafting documents. During the summer months, when law schools are typically closed for summer vacation, law firms take on summer clerks. This is a good way for the firm to see if this person will be a good match for the firm after graduation, and a good way for the student to see if the firm or, indeed, the practice of law is a good fit for him or her.
membership
Many states require membership in the state bar association in order to have the right to practice law in the state.9 These states are said to have “integrated” or “unified” bars. Becoming a member of the state bar association makes each lawyer subject to the rules of ethics enacted by the state and requires the lawyer to pay annual dues. Other states do not require membership in a state bar association. Instead, they are overseen by the state supreme court. Every state has rules of ethics, also called Rules of Professional Responsibility or Rules of Professional Conduct. These are the rules that govern lawyers.
In addition to membership in a state bar association, many lawyers choose to join local bar associations. These local bars may be county bars, city bars, regional bars, or special interest bars. Many lawyers also choose membership in the ABA (American Bar Association). Contrary to urban legend, membership
Check Your Understanding
1. There are typically a few requirements to become a lawyer. What are they?
a. Graduating from a law school and passing a test
b. Graduating from a law school, passing a bar exam, proving good moral character, taking an oath, and paying a membership fee
c. Passing a bar exam and paying a fee to the state supreme court
d. none of the above
2. To show “good moral character,” a bar applicant must:
a. have no arrests
b. have letters of reference and no evidence of bad moral character
c. have a “clean” record
d. receive a passing grade on a moral character exam
3. Upon graduation from law school, a person is called:
a. Esq.
b. JD
c. Attorney at Law
d. any of the above
in the ABA is voluntary. ABA membership offers lawyers many benefits such as continuing education courses and eligibility to be involved in ABA committees, commissions, and other activities.
Where Do Lawyer Ethics Rules Come From?
The ABA is a private organization. Membership is voluntary. It has no authority to discipline anyone. The ABA has over the years created committees and commissions to study the regulation of lawyers and to create “model laws.” If you think about it, it is easier for a state to enact law if it has some premade laws to look at. Then it doesn’t have to write anything from scratch. When some of the finest legal minds and ethics experts come together and write a model code of ethics, the states that use that code as a model for their own law start out with a solid product. They also have the benefit of discussion and comment and debate conducted by the ABA. If you were a state legislature or Supreme Court, wouldn’t you be happier to let the ABA do the work for you? So, the ABA writes and refines a model and puts it out to the states for adoption.
Early Canons
The first set of rules offered by the ABA was the 1908 Canons of Professional Ethics. They were written by the ABA Committee on Professional Ethics and adopted by the ABA at its thirty-first Annual Meeting in 1908. There were thirtytwo original canons that were adopted and used by many states for the next sixtyplus years. They were based on the Code of Ethics adopted by the Alabama State Bar Association in 1887, which was borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title Professional Ethics, and from the fifty resolutions included in David Hoffman’s 1836 publication: A Course of Legal Study.10 Piecemeal amendments to the canons were occasionally made by the ABA. Some of those early canons look rather like rules we have today, such as the original Canon 9:
A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.
That’s the same rule we have today. Another follows.
It is the duty of a lawyer to preserve his client’s confidences. This duty outlast(s) the lawyer’s employment and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage to the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.11
This rule is also the same!
CHALLEngE AssIgnmEnt
Do a search on the Internet for “ABA opinions” and you can read some recent opinions online.
CHALLEngE AssIgnmEnt
If Watergate is a reference you are not familiar with, here’s a challenge assignment for you: John Mitchell, President Nixon’s former law partner, was Attorney General of the United States during the Watergate Scandal. Go to www. fordlibrarymuseum.gov and read the indictment filed against Mitchell and others.
Key Terms
Canon: a rule or body of rules that set a standard for behavior
Model Code of Professional Responsibility: written by the ABA in the 1960s, 49 states eventually used some form of this model for their state rules of professional responsibility for lawyers
Ethical Consideration (EC): reasons for the canons and guidelines that lawyers may consider while making ethical assessments
Disciplinary Rule (DR): rules which if violated are unethical
Model Rules of Professional Conduct: written by the ABA in the 1980s, these rules serve as a model for states’ rules of professional responsibility for lawyers
In other rules from the early ABA Canons, we see that the law has changed. An example is Canon 3412 that appears to permit lawyers to pay people for referring cases to them (“referral fees”), unlike the ABA’s position on them now. We talk about referral fees in Chapter 5.
1960s model Code of Professional Responsibility
The second ABA model was the Model Code of Professional Responsibility. This model was released by the ABA in the late 1960s and adopted in some form or another by forty-nine states. (California was the only holdout.) The Model Code had only nine canons, each of which was followed by Ethical Considerations and Disciplinary Rules. The canons of the Model Code of Professional Responsibility state in general terms the standards of professional conduct expected of lawyers in their relationships with the public, the legal system, and other legal professionals. The Ethical Considerations (EC) include reasons for the canons and guidelines that lawyers may consider while making ethical assessments. Also provided are the Disciplinary Rules (DR), a violation of which is unethical as a matter of law. If lawyers should fall below the standards set forth in a DR, they will be subject to disciplinary action. As changes were made in case law and the needs of the public changed, the Model Code was also amended by the ABA, and those amendments were, by and large, adopted by the states.
When you are researching in the area of professional responsibility, you will come across cases that refer to, for example, EC 4.3, so you should know what they are. Because all of the states that once used the Model Code now use the law and format of the Model Rules, you need to be able to translate from the Model Code to the Model Rules, or at least understand the relationship between the Code and the Rules in your state. We’ll look at an example of that in a moment.
Code of Professional Responsibility examples:
Canon 1: A lawyer should assist in maintaining the integrity and competence of the legal profession.
EC 1-1 A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of the lawyer of integrity.
DR 1-101(B) A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute.
model Rules of Professional Conduct Only a brief seven years passed before the Model Code’s shortcomings inspired the creation of a new ABA commission. It would be called the Kutak Commission after its chair Robert Kutak,
an inspired ethicist/lawyer from Nebraska. With Watergate in the news and the public’s awareness of lawyer ethics on the rise, the Kutak Commission released the Model Rules of Professional Conduct in the mid-1980s. As of this writing, all states except one have adopted some form of the Model Rules. Even California, again the only holdout, is considering a change to a format modeled after the ABA’s Model Rules. The ABA makes changes to the Model Rules periodically, and some states adopt these changes, while others do not. Your state law, not the model, is what’s important to you.
Other Places Where You Can Find Ethics Rules
There are rules of ethics that apply to us that come from places other than the Rules of Professional Conduct. For example, if some ethical situation comes up that is not exactly covered by the Rules, the ABA’s Standing Committee on Ethics and Professional Responsibility might issue an “opinion” on that matter. When there is an issue that concerns many lawyers in many states, the ABA’s committee will consider and debate the matter and issue an opinion on it. This opinion is not “law” in that it is not a statute. But insofar as judges rely on it, or quote it in cases, it can become case law
Your state’s ethics committee issues opinions as well. State bar opinions (or opinions issued by the ethics committee of your state supreme court) are usually responses to questions posed by lawyers (when the question is not specifically addressed by the rules of ethics or case law) and can be issues that have arisen in response to new technology. For example, when e-mail was new, there was a question about its security; so many lawyers wanted to know if they should send sensitive information by encrypted e-mail. Ethics committees in many states grappled with that gnarly question via “opinion.” Opinions typically come in two flavors: formal and informal. Ethics committees can also respond to questions by writing a letter and not publishing the response at all.
To look at some state ethics opinions we use Florida for our example. Go to the Florida Bar Web site at http://www.floridabar.org and click on the link that says “Ethics Opinions.” Then click on the link for the Index and choose any topic and opinion. You’ll find that opinions are numbered in order starting with 1 each year, and preceded by the year of the opinion. So, opinion 01-4 is the fourth opinion written in 2001. Notice also that the opinions typically provide references to the Rules of Professional Conduct or case law or other authority used. That makes it easy to do more research.
Opinions, once again, do not have the force of law like a statute does. Opinions will be relied upon (by a court or other authority) in the absence of specific law. We call this “filling in the gaps.”
You will find laws that apply to your ethical responsibilities in other places, as well. For example, when we start talking about the attorney/client privilege, you’ll have to go looking in your state’s evidence code. And, if you are working in the field of probate, you will find ethics responsibilities all over the probate code. You will also find rules about ethics in your court rules and rules of civil procedure. It’s not easy finding the rules of ethics. Thanks to the Internet, it’s much easier now than it was.
Key Terms
Statute: a law enacted by a legislature, either state or federal
Case law: law that is based on judicial decisions rather than statute
Ethics opinion: formal or informal, opinions are typically written by state or local bar associations on ethical issues
