What is Legal Ethics?
Understanding the Role of a Legal Ethics Attorney
As with any profession, lawyers must commit themselves to certain standards for the good of their practice and the community they serve. Such principles and standards are known as legal ethics. Legal ethics relate to the procedure and ethical rules that govern those practicing law, and the profession of law as a whole. A legal ethics attorney, then, is an attorney that specializes in these principles and procedures as well as issues that deal with the professional conduct of a lawyer.
Attorneys face a number of ethical dilemmas in their practice, from confidentiality to diligence to conflicts of interest, which can result in severe penalties. A breach of these rules can result in anything from a reprimand to disbarment if not addressed in a timely manner.
An example of an ethical rule that may come into play is that of confidentiality. This means that in almost any situation, lawyers have the obligation to protect the confidences of their clients . Even the notion of attorney-client privilege does not prevent lawyers from fulfilling these duties, as even if a lawyer finds out about a confidence during an unrelated representation, they are still bound to keep these thoughts and information to themselves.
This also includes information divulged to a lawyer by another attorney or the agent of a client. If such information comes to a lawyer’s attention, it should remain a secret between the two attorneys, or the lawyer should be careful to avoid any conversation that may let it slip.
The duty of loyalty is another main concern for attorneys. Any situation that may create a conflict of interests should be avoided, unless the parties involved provide their consent. This could deal with any situation that may be adverse to the interests of a client.
There are many other rules pertaining to legal ethics, but generally adherence to they revolve around the idea that the client comes first, and to never place your own interests above those of your client.
The Responsibilities of a Legal Ethics Attorney
A legal ethics attorney provides many functions and assumes many duties for the attorney requesting their help. If an attorney is facing ethical discipline problems at the state bar, the attorney may request that the legal ethics attorney defend him in the case. If the bar association attorney does not do defenses, the legal ethics attorney can still guide the case through the bar’s disciplinary process and evaluate the merits of the case for the attorney’s sake.
Often, however, attorneys find themselves in an ethical dilemma for the first time and want to speak with an attorney experienced in ethics who is independent of the situation. Perhaps an attorney wants to avoid an ethics problem altogether, and wants to know if a hypothetical circumstance would trigger an ethics problem. The legal ethics attorney provides direction for the attorney in these situations, recommending solutions to potential ethical dilemmas so that the attorney can avoid future problems.
The legal ethics attorney may also give legal advice for a variety of situations, including assisting in the handling of a client file where there is a dispute over fees, with the disciplinary process after a bar complaint has been filed, in a termination of representation of the client during the middle of the representation (where client confidences are at issue), in cessation of representation after completion of the legal representation, and in a representation agreement boilerplate provision upon opening of a new client file.
The legal ethics attorney also evaluates other attorney’s conduct for a variety of reasons. The legal ethics attorney may be called upon by competent authorities in the government or judiciary to evaluate an ethical situation where an assessment of the facts and legal issues is needed. The legal ethics attorney may also be called upon by clients to assess an opponent’s ethical conduct. The legal ethics attorney has no authority, however, to sanction any attorney whose conduct is unethical, absent an existing case filed against that attorney by the bar association against whom to complain.
While the legal ethics attorney may perform many different functions for clients and attorneys, the main agent of the ethics attorney is to guide attorneys in ethical matters proactively, and thus avoid ethical dilemmas before they happen.
Why Retain a Legal Ethics Attorney?
When might an individual or law firm require the services of, or advice from, a legal ethics attorney? For example, the client may be a licensed attorney being investigated by the state bar, or the client may be a corporation or other entity being investigated by outside counsel of its own or by the state bar. Counsel my be needed to advise the accused attorney under investigation, or to advise any entity which is subject of a threatened or actual investigatory proceeding. Counsel may be needed to provide guidance and direction to an attorney in a pending matter, or who is considering what ethical course to take (such as whether to withdraw representation, how to avoid conflicts of interests, etc). Counsel may also be needed for representation in a court proceeding or alternative dispute resolution proceeding involving the Law Governing Attorneys at Law and Legal Professional Ethics.
Attorneys and Their Duties
Legal ethics attorneys provide information on the Model Rules of Professional Conduct and the American Bar Association’s Code of Judicial Conduct. The Model Rules are the rules of ethics for attorneys found at the state level. There is considerable variation from one jurisdiction to the next, but the Model Rules have been adopted in some form or another by every state bar association except for California. The Model Rules are broken into eight divisions.
The American Bar Association recommends the Model Rules as a model for state bar associations to adopt. In fact, many boards employ a legal ethics attorney to oversee the entire process as a result. A legal ethics attorney can implement a sanction guide, create a hotline to take calls when an attorney is under investigation and provide support and guidance. Millions of dollars are spent each year by attorneys and bar associations to make sure policies and procedures are ethical, fair and informative.
Legal ethics attorneys make sure the ethics opinions that the attorney commission publishes are consistent with what can be expected in real life and are consistent across the board. They also provide educational opportunities on ethical issues.
The Model Rules have been adopted by the American Bar Association as "The Rules of Professional Conduct." The Model Rules are a set of guidelines established to regulate and oversee attorney conduct under the ABA and determine what actions are misconduct according to the ABA.
The Difficulties of Being a Legal Ethics Attorney
One of the most difficult challenges facing a legal ethics attorney is identifying the potential risk of a conflict of interest prior to the client’s hiring. Most legal ethics attorneys are retained in post hiring situations, after the conflict has occurred. But when clients do ask whether the individual they intend to hire has any conflict, it is usually a difficult task for the legal ethics attorney to predict when the attorney they intend to hire may have a conflict . There is usually the expectation, sometimes unfully, that a legal ethics attorney can predict and prevent all legal ethics disputes before they arise. Legal ethics attorneys also have the challenge of counseling clients on the potential risks of going forward with their case. Clients have a difficult time understanding how their case may progress. For example, a client may want to disclose information to their attorney that would be protected by the attorney-client privilege. The legal ethics attorney must counsel the client to avoid disclosing the information until after the attorney has been retained.
Selecting a Legal Ethics Attorney
A competent legal ethics attorney should possess significant experience in the area under review. In the context of Georgia law, that means a lawyer should have spent a substantial amount of time in the Georgia Office of the General Counsel representing Georgia lawyers, or doing legal research or writing in the area under review. See more here about the Georgia Office of the General Counsel.
We also recommend that you make sure that a legal ethics attorney adheres to the highest ethical standards. One measure of an attorney’s reputation is Martindale-Hubbell (which publishes nationwide attorney rankings). It gives each attorney a "Peer Review Rating" based on "performance in five key areas: legal ability, knowledge and skill, judgment, communication and legal experience."
In addition to experience and reputation, the law requires that a legal ethics attorney must posses subject matter competence. For example, in Georgia, Rule 5.5(c)(2) of the Rules of Professional Conduct provides that a lawyer may provide legal services in another state, tribunal, or other jurisdiction in the best interest of a client in association with a lawyer who is admitted to practice in the jurisdiction where the legal services are rendered. See here for more on this "pro hac vice" rule of the Georgia State Bar.
Prospects for Legal Ethics
The contours of the ethical landscape are never truly defined. Rather, they form, shift, expand and contract over time. But it seems clear that as we move further into the 21st century, the profession of law and legal ethics will inevitably be affected by certain processes already in motion; processes that have yet to reach their full potential.
Today, as at any time, it is the general consciousness, the societal trend that most exerts its influence, but now, that general consciousness is increasingly informed and driven by the exposures and efficiencies of a technological world that is growing denser and more interconnected by the day. Whether it is through changes in model rules, the proposed adoption of ethical guidelines for e-discovery, or innovative approaches to professional responsibility cases, we are seeing the face of legal ethics undergoing fundamental renovation. In the future, those renovations will become inevitable. More, as technology accelerates the general evolution of culture and society, the body of ethical rules and interpretations will rest less on custom and tradition, and more on general principles and specific codes constructed from common values and applications.
It seems very likely that the increase in virtual law offices and dispersed teamwork will give rise to changes in attorney registration and practice jurisdiction requirements. Perhaps there will arrive a time when certain skill-sets can be licensed to specialized sections of the legal profession. Such an evolution would seem to raise even greater challenges for the regulation of advanced technology issues than those self-regulating standards that license them. Where ethics committees are no doubt struggling now to look into crystal balls with the clarity of vision of a scientist , 20 or 30 years down the line, they will undoubtedly be stronger and more decisive in their responses to the steady impact of technology on practitioner conduct.
E-Discovery has already impacted the practice of law, and will soon revolutionize it altogether, including the manner in which standards of privilege and confidentiality are applied. Both the prosecutor and the defender must anticipate that, in the future, dozens, if not hundreds, of cases may hinge on the obligations and practical limits imposed on the collection, metadata tracking, production and storage of electronic data. Even more, as courts are already grappling with the concept of collective rather than compartmentalized discovery, we will likely see a revolutionary shift in the manner in which privileged and confidential documents and messages are handled. E-discovery will force the profession to consider and account for the possibility that forms of communication once thought to be totally secure may not be secure at all. But given the perniciousness of the threats implicated in the new technologies, the profession will also have to balance the countervailing requirement of confidentiality with the need for a more open process of litigation, by creating procedural remedies and sanctions designed to protect both the client and the integrity of the process.
As for dispute resolution, the implications of technology are too numerous to be covered here. From basic efficiencies of distance and cost, to enhancing access to justice, technology will undoubtedly revolutionize our understanding of what dispute resolution is, which will, in turn, impact how we understand and implement regulations.