Sources of Ethics Law
“Integrated Bar Associations”
“Voluntary Bar Associations”
“Clear and convincing evidence”
The courts, legislature, and state bars all take part in governing the practice of law in each state. The legislature enacts laws that legal professionals must uphold. The courts decide cases by applying facts to the law. They are usually also responsible for appointing members of state bar ethics committees that hear grievances.
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.
Members of “voluntary bar associations” such as the American Bar Association (“ABA”) have long served important advisory roles in regulating the practice of law. 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. Our course is in large part based on the Model Rules. They speak volumes on all sorts of areas of the law, guiding lawyers and non-lawyers within and without the courtroom.
Ethics laws are also to be found in court rules. For example, the Family and Probate Courts of a state will promulgate their own rules for practitioners within their systems.
Case law, also referred to as “common law,” serves as another legal reference for practitioners. Lawyers cite cases decided by lower courts, appellate courts, and even the U.S. Supreme Court in their briefs as precedent for supporting an argument.
Also cited as authority in resolving ethical disputes are advisory opinions, commentaries, and law reviews.
Ethics committees are appointed by the top court in a state and are generally responsible for conducting attorney discipline proceedings. These committees are involved in investigating, prosecuting, and conducting hearings. Recommendations for discipline may go through an appeals process. In many states only the highest court can impose disbarment (the revocation of an attorney’s license).
In most states, the disciplinary process begins when a grievance is filed with a local ethics committee. Usually this grievance originates with a dissatisfied client, but it may also be filed by another attorney or a judge. Grievances that do not allege the commission of an action that constitutes a violation of ethics codes are screened out immediately.
An investigation is conducted once a grievance passes the screening. The respondent attorney is notified and requests for information may be placed to assist with the investigation. Decisions are then made whether the evidence submitted can reasonably prove misconduct (the standards differ among the states, but usually a “clear and convincing” evidence standard is applied). If so, the claim will be pursued further.
Instances of “minor misconduct,” or conduct which would not warrant a sanction greater than an admonition, are often disposed of by agreement, although a hearing may be conducted. Complicated misconduct cases are generally prosecuted following the filing of a formal complaint. The attorney respondent files an answer to the complaint, a discovery process is conducted, and a hearing is commenced.
The standard of proof in an ethics hearing is generally “clear and convincing evidence.” The ethics panel presiding over the hearing then makes a decision on whether a sanction should be imposed and submits a report containing findings of fact and conclusions of law. An appeals process is conducted to review the conclusions of the ethics panel.
Even though ethics boards generally dismiss the vast majority of grievances filed, attorneys are encouraged to pay careful attention to all grievances. In some states, an attorney’s refusal to fully cooperate with the disciplinary authorities, regardless of the nature of the grievance, may result in a temporary suspension of his license. An ethics charge can be brought based solely on the failure to cooperate. See