Sometimes you hear Lawyers claiming that they provide "ethical representation" in their advertising. Does this imply that only they provide ethical representation, but other lawyers do not provide "ethical representation"?
We occasionally read about a lawyer that has been disciplined by the Bar for violation of some particular rule of professional conduct, and that discipline may include admonishment, suspension, or even disbarment of the lawyer, if the violation is significant enough.
All lawyers that are members of a State Bar association must comply with their states code of ethics for lawyers. As such the general public may rely upon, and expect that lawyers conduct themselves in such a manner as to be in compliance with the rules of professional conduct. When a lawyer violates the rules, the general public may also rely upon the fact that the bar association enforces the rules of conduct.
Due to the complexity of the rules, the wide range of possible violations of the rules, and the type of discipline that may apply to a particular rule violation, it is a gross oversimplification to simply state that a lawyer provides "ethical representation" . All lawyers are expected to provide ethical representation, and it is inappropriate to for a lawyer to claim that they provide ethical representation, implying that other lawyers do not.
If a lawyer has not provided ethical representation in the past, you do not need to take a lawyers word for it, all one needs to do is check with their state bar association to find out. Lawyer discipline is a matter of public record. Another place to find out if a lawyer provides ethical representation is AVVO, an online service that provides information about lawyers, including lawyer discipline.
The American Bar Association has developed model rules of professional conduct which are outlined below, and from which individual state bar associations may develop specific rules of conduct for lawyers.
A LAWYER'S RESPONSIBILITIES (ABA Model Rules, Preamble and Scope)
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
[3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
[5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.
[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.
[10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.
[12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
ABA - SCOPE OF THE RULES OF PROFESSIONAL CONDUCT
[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.
[16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
[18] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.
Below is a listing of the model rules of professional conduct, without a detailed discussion of each rule. This is provided simply to give you an idea of the types of rules that lawyers must follow.
Client-Lawyer Relationship
Rule 1.1 Competence
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule 1.3 Diligence
Rule 1.4 Communications
Rule 1.5 Fees
Rule 1.6 Confidentiality of Information
Rule 1.7 Conflict of Interest: Current Clients
Rule 1.8 Conflict of Interest: Current Clients: Specific Rules
Rule 1.9 Duties to Former Clients
Rule 1.10 Imputation of Conflicts of Interest: General Rule
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Rule 1.13 Organization as Client
Rule 1.14 Client with Diminished Capacity
Rule 1.15 Safekeeping Property
Rule 1.16 Declining or Terminating Representation
Rule 1.17 Sale of Law Practice
Rule 1.18 Duties to Prospective Client
Counselor
Rule 2.1 Advisor
Rule 2.2 (Deleted)
Rule 2.3 Evaluation for Use by Third Persons
Rule 2.4 Lawyer Serving as Third-Party Neutral
Advocate
Rule 3.1 Meritorious Claims and Contentions
Rule 3.2 Expediting Litigation
Rule 3.3 Candor toward the Tribunal
Rule 3.4 Fairness to Opposing Party and Counsel
Rule 3.5 Impartiality and Decorum of the Tribunal
Rule 3.6 Trial Publicity
Rule 3.7 Lawyer as Witness
Rule 3.8 Special Responsibilities of a Prosecutor
Rule 3.9 Advocate in Nonadjudicative Proceedings
Transactions with Persons Other Than Clients
Rule 4.1 Truthfulness in Statements to Others
Rule 4.2 Communication with Person Represented by Counsel
Rule 4.3 Dealing with Unrepresented Person
Rule 4.4 Respect for Rights of Third Persons
Law Firms and Associations
Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer
Rule 5.2 Responsibilities of a Subordinate Lawyer
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
Rule 5.4 Professional Independence of a Lawyer
Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practiceof Law
Rule 5.6 Restrictions on Rights to Practice
Rule 5.7 Responsibilities Regarding Law-related Services
Public Service
Rule 6.1 Voluntary Pro Bono Publico Service
Rule 6.2 Accepting Appointments
Rule 6.3 Membership in Legal Services Organization
Rule 6.4 Law Reform Activities Affecting Client Interests
Rule 6.5 Nonprofit and Court Annexed Limited Legal Services Programs
Information About Legal Services
Rule 7.1 Communication Concerning a Lawyer's Services
Rule 7.2 Advertising
Rule 7.3 Solicitation of Clients
Rule 7.4 Communication of Fields of Practice and Specialization
Rule 7.5 Firm Names and Letterhead
Rule 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges
Maintaining the Integrity of the Profession
Rule 8.1 Bar Admission and Disciplinary Matters
Rule 8.2 Judicial and Legal Officials
Rule 8.3 Reporting Professional Misconduct
Rule 8.4 Misconduct
Rule 8.5 Disciplinary Authority; Choice of Law
For more information or for a free consultation, contact Scott and Fenderson, PA Injury and Family Law Attorneys, by calling 727-321-0099 or view our web site www.scottandfenderson.com
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