National Paralegal College

An Overview of Legal Ethics

by Susan Israel

Introduction

All legal professionals, lawyers and non-lawyers alike, are expected to maintain strict ethical standards – for the protection of colleagues, clients, the court, and anyone even tangentially affected by a case. The ethical rules guide lawyers in all aspects of their representation of clients. They are integral to every facet of the law and its practice – whether the lawyer is working on a case related to antitrust law, matrimonial law, or environmental law.

The rules of professional responsibility serve as a roadmap to follow in many common scenarios. Familiarity with the ethical rules will help lawyers face what are sometimes awkward challenges and choices.

The courts, legislature, and state bars all take part in governing the practice of law in each state. States have “integrated bar associations,” which all attorneys are required to join. These bar associations promulgate ethical rules that members promise to uphold. State bars also administer bar exams and generally regulate entry into the profession.

Adopted in August 1983, the ABA’s Model Rules of Professional Conduct serve as the foundation for ethical rules in the majority of states. As of the year 2000, 40 states in the union have adopted the Model Rules as their state rules of professional conduct for legal professionals. The Model Rules speak volumes on all sorts of areas of the law, guiding lawyers and non-lawyers within and without the courtroom.

Unauthorized Practice of Law

Without a doubt, paralegals and other non-lawyer assistants may be more talented and more knowledgeable than the attorneys who supervise them. Assistants are given tremendous responsibilities that require great skill. Nonetheless, even the best non-lawyer assistants must be actively supervised by lawyers and, importantly, there are a host of tasks they must not ever perform. It is important to note that an individual engaged in the unauthorized practice of law may be prosecuted criminally.

Here’s a short list of activities that only lawyers may perform:

Here’s a short list of activities that do not constitute the practice of law:

Supervisors and Subordinates

lawyer is certainly entitled to delegate responsibilities to paralegals, clerks, interns, and others, but the lawyer must always supervise and accept responsibility for the work. Under the Model Rules, an attorney is required to exercise “reasonable care” to ensure subordinates act ethically. See Model Rules 5.3(a) and (b). This is an affirmative obligation. A failure to supervise even those subordinates whom a supervisor trusts sincerely is a violation.

lawyer will be responsible for another’s violation of the ethical rules if the lawyer orders or knowingly ratifies the violation, or, on finding out about the violation, the lawyer fails to take remedial steps at a time when its consequences could still be avoided or mitigated. See Model Rules 5.1(c)(1) and (2). These rules apply to a lawyer who supervises a non-lawyer, as well. See Model Rule 5.3(c).

Duties to Clients and Clients’ Rights

Loyalty: Loyalty is a key topic in legal ethics. It is a perennial source of controversy because of its occasionally subtle but possibly fatal impact on the outcome of legal representation. Loyalty to a client should never be compromised during the representation, as this would certainly impact the lawyer's performance.

Zealous Advocacy: Lawyers also have a strict ethical responsibility to advocate zealously on behalf of their client. Zealous representation does not mean a lawyer should strive to “win” a case at all costs, if that means harming third parties and adversaries unnecessarily in the process. It means doing everything reasonable to help a client achieve the goals set forth at the outset of the representation. Therefore a balance must be struck in strategizing -- between what is achievable within the bounds of the law, and what is reasonable in light of the impact on parties involved.

Diligence: Practicing lawyers are busy people, and can get into trouble if they procrastinate. Cases rarely go smoothly, and there are always innumerable tasks to accomplish, including documents to draft and file, calls to make, and meetings to schedule. A setback in the form of a forgotten document filing could easily harm a client’s case. A lawyer must be diligent, organized and thoroughly and well-prepared for any challenge.

Communication: A lawyer has a responsibility to keep lines of communication open with clients. Lawyers are notorious for not returning phone calls; the most common reason for clients’ complaints to disciplinary boards is the lawyer’s failure to communicate with the client, including returning telephone calls in a timely manner. The Model Rules hold that a lawyer must keep a client reasonably informed about the status of a matter and must promptly comply with reasonable requests for information. The lawyer also has an obligation to explain a matter to the extent reasonably necessary to permit the client to make informed decisions in the case.

Competent Representation: The Model Rules hold that competent representation requires the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Lawyers get into trouble with clients and the ethics authorities if they take on a case they are incapable of handling, whether it be due to their training, experience, or if the volume of work is simply too much for one person to handle.

Safeguarding Client Property: Lawyers must hold property of clients or third parties in an account separate from the lawyer’s personal property. There must be no commingling of client funds with the lawyer’s funds. The lawyer must keep records of all deposits and withdrawals to the account, and must promptly inform the client of the receipt or disbursement of funds from the account.

What a Client Decides in a Case: The ultimate control over decisions that will impact on the merits or substance of a case lies with the client. The client, and only the client, determines the “objectives of representation.” See Model Rule 1.2(a). Here’s a short list of what the client decides in a matter:

What the Lawyer Decides in a Case: The lawyer makes decisions in a case related to strategy or tactics, or technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests. See Model Rule 1.2. Tactical or strategic decisions may involve the following:

Confidentiality

“Confidentiality” is a broad term that comprises a number of legal doctrines related to a lawyer’s duty not to reveal secrets, including the attorney-client privilege, the work product doctrine, the spousal privilege, the psychiatrist-patient privilege, and the priest-penitent privilege.

Attorney-Client Privilege: A privilege is meant to encourage a client who needs legal advice to tell the lawyer the truth. Without knowledge of the truth, a lawyer will be less able to help the client. In essence, the attorney-client privilege protects against the required disclosure of any confidential information given by a client to his attorney during the course of seeking professional legal advice. “Required” implies that for the attorney-client privilege to be invoked, there must be a demand for information by subpoena or other order sanctioned by the law. A client may not, at least from a technical legal perspective, invoke the attorney-client privilege without first receiving an order to produce information. Once there is a request for information from an adversary, a client has the privilege to refuse to disclose and/or to prevent another person from disclosing confidential communications between that client and his attorney. An important exception is the “crime or fraud” exception to the attorney-client privilege: if a client seeks a lawyer’s help to commit a crime or fraud, no privilege arises for any communications related to the illegalities. There is absolutely no reason to protect communications which facilitate criminal activity by clients and attorneys, so the law provides a needed exception.

Work Product Doctrine: The work product doctrine is another limitation on discoverable material. It includes the thoughts and mental impressions of the lawyer, memorialized in notes and other documents and crafted in anticipation of litigation that are not discoverable by an adversary.

Other Privileges: Physicians and psychotherapists/social workers may not disclose information obtained from patients regarding their medical or psychiatric treatment, nor may a priest disclose information obtained by a penitent. Spouses are not required to disclose confidential marital communications, and one spouse may prevent the other spouse from doing so. Furthermore, a spouse cannot be compelled to testify against the other spouse in a criminal matter.

Conflicts of Interest

Lawyers must refrain from establishing relationships where a potential conflict of interest will detrimentally affect the quality of the representation. Conflicts of interest may have negative effects on a lawyer’s ability to exercise independent and professional judgment.

Model Rule 1.7, the general rule for conflicts of interest, holds that a lawyer must not represent a client if the representation of that client will be directly adverse to the interests of another client unless the lawyer reasonably believes that his representation will not adversely affect the relationship with the other client, and each client consents after consultation.

Model Rule 1.9(a) holds that a lawyer “shall not oppose a former client in a ‘substantially related matter’ by representing another whose interests are ‘materially adverse’ to the former client, unless the former client consents after consultation.” The biggest problems with opposing a former client usually occur because a lawyer has obtained confidential information from the former client that the lawyer might be tempted to use on behalf of his present client.

Model Rule 1.8 holds that a lawyer must not enter into a business transaction with a client, unless the terms are reasonable and fair; the terms are fully disclosed in writing; the client is given a chance to seek the advice of independent counsel; and the client consents in writing.

Model Rule 1.8 prohibits a lawyer from providing financial assistance to a client in connection with litigation. Exceptions exist for the advancement of court costs and litigation expenses, and for paying costs and expenses for an indigent client.

Model Rule 1.7 permits an attorney to represent a corporation and its employees (including directors and officers) provided that their interests are not adverse and that consent is obtained for the dual representation.

Lawyering

Fees: Lawyers may set fees for their representation of clients, but may not set “minimum” fees. Fees must be reasonable, a subjective term that is related to the lawyer’s experience, ability and reputation; the skills necessary to perform the legal service; and the usual fee in the lawyer’s locality for similar work. Contingency fees, where the lawyer receives a set percentage of the client’s recovery, must be in writing, and are not permitted in matrimonial and criminal cases.

Advertising: Lawyers are permitted to advertise, but are prohibited from making false or misleading communications, e.g., misstating or omitting material information; creating unjustified expectations; and making unverifiable comparisons. See Model Rules 7.1(a), (b) and (c). Lawyers may not advertise that they are “specialists” in an area of law, unless they are certified as such. See Model Rules 7.4(c) and (d).

Courtroom

Judges: Lawyers may not have ex parte communication with judges, with some exceptions, and may not attempt to influence judicial opinion outside of the courtroom. Lawyers should not give gifts to judges, or enter into business transactions with judges.

Jurors: Lawyers may not directly communicate with a juror, either inside or outside the courtroom, prior to, during, or following a trial, although some jurisdictions allow lawyers to contact jurors after a verdict.

Witnesses: Lawyers may not contact a person who is known to be represented by counsel, without the consent of the person’s attorney. Lawyers may not attempt to influence witness testimony.

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Master of Science in Legal Studies
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Master of Science in Taxation