When it's time to find legal representation, you want a good, honest lawyer. Attorneys must study and be licensed in the practice of law, but what about their professional responsibilities? What rules of conduct are attorneys required to follow in court or the conference room? And what happens when they violate those rules?
This article reviews some of the rules of professional conduct that attorneys must obey and the ethical requirements for attorneys in and out of court. You'll also learn what to do if your attorney doesn't follow these rules.
Rules of Professional Conduct
The American Bar Association (ABA) regulates the entire legal profession. It establishes the legal and ethical obligations attorneys owe to their clients, the courts, and the public at large. The ABA also issues ethics opinions amid questions about interpretations of the rules. Even in law school, budding attorneys agree to abide by the ABA's Model Rules of Professional Conduct. Every state bar association except California has adopted the Model Rules. California has its own code, which resembles the ABA's but has a slightly different format.
The Rules of Professional Conduct define advocacy and representation, hourly and contingent fee agreements, and attorney-client privilege. The rules also explain the attorney's conduct toward the court, other lawyers, and the public in general. The rules clarify attorney discipline and reporting misconduct.
The most important rules for the client-lawyer relationship:
- Competence: The lawyer must have the legal education, knowledge, and skill necessary to represent their client adequately. The lawyer must use their best professional judgment when advising a prospective client about their legal matter.
- Scope of representation: The lawyer must abide by the client's decisions regarding the course of the case. The lawyer may advise the client of all possible outcomes and recommend certain courses of action, but the decision to settle or plead must be the client's.
- Communication: The lawyer must keep the client reasonably informed about all matters that require the client's consent or action. The lawyer shall answer all questions and explain all matters so that the client can make informed decisions about their case.
- Fees must be reasonable and calculated according to the guidelines laid out in the ABA's or state's rules.
- Advertising and solicitation must follow ABA guidelines. The association has strict rules about when and how an attorney may solicit new clients. Attorney referrals and fee-sharing are also restricted by the bar to protect clients' interests.
The Model Rules of Professional Conduct can only define required behavior. Legal ethics — how the attorney carries out the representation of a client — depends on the individual lawyer's character. An attorney must always act in the client's interests, but that does not mean they are acting ethically. Some common ethical breaches may happen when the lawyer and the client believe the lawyer's conduct is acceptable.
- Conflicts of interest: An attorney should not represent two clients whose interests oppose one another. An example is a divorce attorney who represents both parties during the divorce. If the parties give informed consent to the conflict, the representation can continue, but each party should have separate counsel.
- Failing to communicate: Attorneys are busy, like everyone else. Some cases, like personal injury cases, go for long periods where nothing happens. Attorneys are still responsible for checking in with their clients and returning phone calls and emails.
- Commingling funds: Attorneys have a fiduciary duty to separate client trust accounts from business funds. Failing to do so is commingling funds. This can be intentional but may also be due to carelessness and mismanagement.
- Breach of confidence: Attorneys need to keep confidential information between themselves and the client. If a third person overhears discussions, even in the law office, it may be an ethical violation.
Not all ethical violations are harmful or intended to hurt a client. However, that doesn't mean the attorney is off the hook. Clients go to attorneys expecting professional services. If you believe your attorney has not acted professionally, you should contact the disciplinary office of your state bar association. Each state has its own disciplinary authority over professional misconduct. Even if it was a momentary lapse — for instance, someone in the lobby overheard your conversation with the lawyer while the door was open — the bar wants to hear about it.
You should consider filing a legal malpractice lawsuit if your attorney's misconduct harmed you or your case. A legal malpractice suit, like other malpractice suits, requires that the attorney's negligence in some way caused you financial or physical harm. In a civil or criminal case, this can mean you lost your case or suffered a worse outcome because of your attorney's actions.
You can find out if an attorney has had any disciplinary proceedings before you hire them. Each state bar has an attorney listing that will give you an attorney's “vital statistics," such as their bar admission date, the courts where they may practice, and any disciplinary action or suspensions.
Frequently Asked Questions About Legal Ethics
Attorneys are not the only legal professionals who must abide by rules of conduct. Whenever you consult anyone for legal advice, they must follow certain restrictions set by state and federal laws. Here are some common questions about other legal service providers.
Are judges required to follow any rules of conduct?
Yes. Every state has its own code of judicial conduct for judges presiding over courts. These codes affect elected and appointed judges, magistrates, and the employees of courthouses who work for judges, such as clerks and judicial assistants. Codes of judicial conduct are similar to legal rules of conduct.
The state's legal system determines the judicial rules of conduct, but each jurisdiction has its own court rules. Court rules apply to specific documents, court orders, and appearances.
Do mediators and arbitrators have rules of conduct?
Most arbitrators follow the rules set by the American Arbitration Association (AAA). Binding arbitration rules are similar to court rules, and most courts have accepted AAA rules as acceptable to all parties.
Mediation is a less formal process than arbitration, and mediators generally set their own rules of conduct. They follow the same rules of confidentiality and communication as attorneys and arbitrators. As third-party neutrals, mediators should not do any fact-finding or make any legal determination in the case.
What about non-lawyers who provide legal assistance?
Federal and state law and the ABA prohibit the unauthorized practice of law. Paralegals, legal document assistants, and other quasi-legal professionals may only practice under the supervision of an attorney. They may also provide legal information. Public service clinics that provide legal assistance should either have attorneys on staff or have disclaimers saying they do not provide legal advice.
Legal services fall into a gray area. A non-lawyer may not offer advice or opinions on a legal matter. They can assist a client in finding answers about the matter. For instance, a paralegal can help a client find a divorce packet online and explain the financial declaration. The paralegal cannot tell the client what assets and debts to put in the declaration unless an attorney is available to review the document.
What responsibilities do in-house attorneys have? What about prosecutors?
Attorneys who work for a corporation have the same responsibilities on behalf of a client as private attorneys. The difference is that the client is the company rather than one person. A corporate attorney must keep client confidences for the entire business. Any conflict of interest may include former clients of the company or of the attorney.
A prosecutor has some special responsibilities. As the lawyer serving the public interest in a criminal case, they owe a special duty of candor and truthfulness to the opposing party. Prosecutors must manage trial publicity to avoid prejudice to the defendant.
Legal Ethical Questions? Ask a Lawyer
If you're a former client and have questions or concerns about the actions of your previous attorney, you should discuss them with a legal malpractice attorney. They can tell you if your former lawyer's services were negligent and if you have a potential case you should bring to the state bar's attention.