The U.S. Legal System
Unethical Conduct of Attorneys
Inappropriate behavior by attorneys that may be punished by the bar associations or supreme courts in the states in which the attorneys practice law.
In the United States admission to the practice of law and oversight of attorney conduct are matters supervised generally by the supreme courts of each state. In most states the supreme court remains the final authority in regulating admissions and attorney conduct, although the court may rely in part on the assistance of state bar associations. In practice, however, complaints concerning the conduct of lawyers should normally be directed to the state or local bar association, which generally plays the most important role in the initial investigation of and decisions concerning complaints.
Sanctions against attorneys for unethical conduct should be distinguished from other means of redress for inappropriate attorney behavior. The chief alternative avenues for such redress are criminal proceedings and civil lawsuits. Attorneys who violate the law in connection with their legal practice can find themselves subject to criminal sanctions. Similarly, attorneys who violate legal obligations owed to clients and other third parties can be sued for legal malpractice or a variety of other legal claims.
Varieties of Sanctions
The sanctions available to disciplinary authorities who regulate the conduct of lawyers vary from private reprimands to disbarment. For a relatively minor infraction disciplinary authorities may simply censure an attorney privately, informing him or her of the bar's verdict and warning against repeating the infraction. This private reprimand remains in the attorney's file, however, and might have a bearing on the severity of sanctions in future cases should further transgressions occur. For more serious cases, disciplinary authorities may move to a public reprimand, which informs other lawyers of the offending lawyer's ethical misconduct, generally by mentioning it in a legal publication such as the state bar association's monthly periodical. The next level of sanction is a suspension from the practice of law for some period of time, generally ranging from three months to five years. Finally, disciplinary authorities deal with the most severe ethical lapses by disbarring the offending attorney. Disbarment strips the attorney of the right to practice law in the state in question. In some cases, attorneys so disbarred may seek reinstatement to the bar after a period of time, normally specified in the original disbarment order. Reinstatement depends on whether the attorney demonstrates that the offending conduct is not likely to be repeated.
In the late twentieth century the traditional sanctions of reprimand, suspension, and disbarment were supplemented with other sanctions designed to educate offending lawyers. For example, disciplinary authorities sometimes dismiss complaints against lawyers for relatively minor infractions if the lawyers agree to attend a continuing legal education program on the subject of attorney ethics. Sometimes the right to undertake the practice of law again after a suspension or disbarment is linked to this kind of requirement. In addition, disciplinary authorities may occasionally make readmission to the bar after disbarment contingent on an erring lawyer's passing all or part of the state bar exam.
Beginning early in the twentieth century national and state bar associations attempted to set forth principles of legal ethics that would guide the conduct of lawyers and provide a basis for disciplining wayward attorneys. In 1983 the American Bar Association (ABA) proposed a set of ethical rules called the Model Rules of Professional Conduct. Since the ABA does not itself have authority to establish standards for legal ethics in each state, the Model Rules were simply a uniform collection of ethical principles proposed for adoption by the various state supreme courts. In fact, most states subsequently enacted some version of the Model Rules as their own, although many states modified them in some respects. A few states still operate under a predecessor set of ethics rules proposed by the ABA in the 1970's called the Model Code of Professional Responsibility.
Rules of legal ethics, whether the Model Rules or the older Model Code, attempt to set forth ethical principles to guide lawyers in dealing with the various ethical problems that occur in the practice of law. They define the various obligations that lawyers owe their clients, the courts, and third parties. Violation of these rules, which touch on matters as various as the kinds of fees lawyers may charge and their obligation to disclose the misconduct of their fellow lawyers, is the chief basis for sanctions against lawyers.
Sanctions for Other Types of Unethical Conduct
In the main lawyers receive sanctions for unethical conduct committed in their role as attorneys. Occasionally, however, disciplinary authorities sanction lawyers for ethical infractions that are not committed in the context of legal practice. For example, a lawyer might be sanctioned after being convicted of embezzlement or tax evasion. Lawyers may also be sanctioned for unethical business conduct, even if the conduct does not occur in connection with their practice of law.
The modern view--reflected, for example, in the ABA's Model Rules of Professional Conduct--is that lawyers should be disciplined only for conduct outside the scope of their practice under certain circumstances. According to the ABA's Model Rules, some kinds of illegal or unethical conduct may not reflect adversely on lawyers' fitness to practice law. Thus, even though private moral infractions, such as adultery, might be a crime in particular jurisdictions, this infraction does not necessarily mean that an attorney who engages in this conduct lacks the characteristics necessary to practice law. On the other hand, criminal offenses involving violence, dishonesty, or interference with the administration of justice would reflect adversely on a lawyer's fitness to practice law.
Timothy L. HallSuggested Readings
Among the many books cataloging the unethical practices of lawyers and suggesting possible remedies are Deborah L. Rhode's In the Interests of Justice: Reforming the Legal Profession (New York: Oxford University Press, 2001), Jethro K. Lieberman's Crisis at the Bar: Lawyers' Unethical Ethics and What to Do About It (New York: W. W. Norton, 1978), Donald E. DeKieffer's How Lawyers Screw Their Clients: And What You Can Do About It (New York: Barricade Books, 1995), and David W. Marston's Malice Aforethought: How Lawyers Use Our Secret Rules to Get Rich, Get Sex, Get Even . . . And Get Away With It (New York: W. Morrow, 1991). The late twentieth century witnessed a spate of books seeking to divine the roots of ethical failure in the legal profession. These include Betrayed Profession: Lawyering at the End of the Twentieth Century by Sol M. Linowitz with Martin Mayer (New York: Charles Scribner's Sons, 1994), and Anthony T. Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass.: Harvard University Press, 1993). The many authoritative works on ethics in the legal professions include Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients, and Public Officials, edited by Patricia E. Salkin (Chicago: Section of State and Local Government Law, American Bar Association, 1999); Ethics for Adversaries: The Morality of Roles in Public and Professional Life, by Arthur Isak Applbaum (Princeton, N.J.: Princeton University Press, 1999); The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon (Cambridge, Mass.: Harvard University Press, 1998); and Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation, edited by Deborah L. Rhode (New York: Oxford University Press, 2000).
See Also: Adversary system; American Bar Association; Attorney-client relationship; Attorney confidentiality; Attorney fees; Attorney trust accounts; Attorneys as fiduciaries; Bar associations; Effective counsel; Evidence, rules of; Family law practice; Grievance committees for attorney discipline; Judicial conduct code; Model Rules of Professional Conduct; Personal injury attorneys; Pro bono legal work; Solicitation of legal clients.
SALEM PRESS, a division of EBSCO Publishing. · 131 North El Molino Avenue · Pasadena · CA 91101
© Salem Press, Inc. All Rights Reserved.