Overview of Legal Ethics

All legal professionals, lawyers and non-lawyers alike, are expected to maintain strict ethical standards – for the protection of colleagues, clients, the court, and anyone even tangentially affected by a case. The ethical rules guide lawyers in all aspects of their representation of clients. They are integral to every facet of the law and its practice – whether the lawyer is working on a case related to antitrust law, matrimonial law, or environmental law.

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 legal profession.

Penalties for violations of ethical rules can range from private censure on the low end to disbarment (for an attorney) or even criminal penalties such as heavy fines and/or jail time, depending on the severity of the violation.

Following is a synopsis of some of the most important ethical rules that one must be aware of while undertaking the practice of law.

The Duty of Loyalty to a Client 

Lawyers have a strict ethical responsibility to advocate zealously on behalf of their clients. Zealous representation does not mean a lawyer should strive to “win” a case at all costs, if that means harming third parties and adversaries unnecessarily in the process. It means doing everything reasonable to help a client achieve the goals set forth at the outset of the representation. Therefore a balance must be struck in strategizing -- between what is achievable within the bounds of the law, and what is reasonable in light of the impact on parties involved. Still, a legal professional has a general duty to strive to protect the interests of a client to whatever extent it is practical under the law.

The Responsibilities of a Legal Professional:

The ultimate control over decisions that will impact on the merits or substance of a case lies with the client. The client, and only the client, determines the “objectives of representation.” 

Here’s a short list of what the client decides in a matter:

• whether to accept a settlement offer in a civil case
• what plea to enter in a criminal case
• whether to waive a jury trial in a criminal case
• whether the client will testify
• whether to follow through with an appeal 

If the attorney makes a decision that affects the client’s substantive rights in the case without the client’s consent, the attorney may be in violation of the ethical rules and is exposing himself to malpractice liability and/or discipline from the bar.

In broad terms, the decisions a lawyer makes in a case are related to strategy or tactics, and technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests and because they are within the ambit of the lawyer's professional training. 

Tactical or strategic decisions may involve the following:

• the choice of motions
• the scope of discovery
• which witnesses to call
• the substance of the direct and cross-examination

Importantly, a client has the right to discuss with his lawyer the strategy that will be employed in pursuing objectives. However, according to the Model Rules, lawyers are “not bound to press for every advantage that might be realized for a client.”

The ethical rules hold that if the strategic decision would not materially prejudice the rights of a client, the legal professional does not have to abide by the client’s wishes. Generally, on issues of court procedures, granting continuances and extensions, and waivers of procedural formalities, the lawyer has discretion. 

A lawyer is obligated according to the rules of professional responsibility to exercise independent professional judgment and to render candid advice. In exercising independent professional judgment, the lawyer should not allow others to unduly influence and sway her opinions in a way that would compromise the quality of the representation.

In providing advice, the legal professional may refer not only to the law, but to moral, economic, social, and political considerations that might impact a client’s situation. 

Attorney-Client Confidentiality

One of the most important duties a legal professional owes to a client is that of confidentiality. This duty applies to lawyers, paralegals, legal assistants, law firm secretaries, etc. Under most circumstances, a member of the representation of a client may not reveal any information given to him or her during that course of a legal representation without the consent of the client. This is known as the duty of “confidentiality.”

A prevailing theory in the law is that it is more important to keep certain information confidential in order to preserve certain relationships – such as those of a client and her attorney – than it is to mandate that all relevant evidence be available to the opposition. Relationships that are considered to have legal importance would be hurt if there were no guaranteed confidentiality rules. 

If a legal professional violates the duty of confidentiality, the offender and/or the offender’s firm will be subject to discipline. 

A corollary to the rule of attorney-client confidentiality is the rule that any information given by a client to a legal professional in the course of a representation may not be used against the client in the scope of a civil or criminal proceeding. This doctrine is known as the “attorney-client privilege.”

The attorney-client privilege applies if the 5 “C”s are present:

1. A client (including a prospective client, such as a person who has not yet hired the law firm, but is deciding whether to hire the firm)
2. makes a communication
3. that is meant to be confidential
4. to counsel (the attorney or his or her staff)
5. for the purpose of obtaining counsel (legal advice or help)

There are some exceptions to the privilege. These exceptions (where the legal professional may divulge the confidential information) include:

• The “crime or fraud” exception to the attorney-client privilege. If a client seeks a lawyer’s help to commit a crime or fraud, no privilege arises for any communications related to the illegalities.
• If the lawyer or firm is suing the client for a fee, the firm may divulge what information is necessary to prove that the client does, in fact, owe the fee.
• If the lawyer or firm is being sued for legal malpractice, the firm may divulge information necessary to defend against the charge of malpractice.

Conflicts of Interest

Lawyers must refrain from establishing relationships where a potential conflict of interest will detrimentally affect the quality of the representation. Conflicts of interest may have negative effects on a lawyer’s ability to exercise independent and professional judgment. 

The study of conflicts of interest is divided into two basic areas:

1. those representations that involve potential conflicts of interest with former clients
2. those representations that involve potential conflicts of interest with current clients

As is intuitively apparent, the rules regarding conflicts with current clients are stricter than those involving conflicts with former clients.

Former Client Rules Summary

The ethical rules hold that a lawyer

“shall not oppose a former client in a ‘substantially related matter’ by representing another whose interests are ‘materially adverse’ to the former client, unless the former client consents after consultation.”

The definition of the terms “substantially related matter” and “materially adverse” are, of course, the key elements in determining the application of this rule. Although these terms are the subject of much debate, the upshot of these rules is that if a firm represents a client on one matter and later wants to represent an opponent of that client on a completely different matter, the firm usually may do so. If there is a question as to whether the representation is proper, the legal professional would be wise to consult available legal ethics experts and/or ethics hot-lines to help determine if a representation is ethical.

The biggest problems with opposing a former client usually occur because a lawyer has obtained confidential information from the former client that the lawyer might be tempted to use on behalf of his present client. During the course of representation, clients may divulge confidences that could be used against them in many ways. For clients with serious legal problems, it may be very difficult to confide in someone. If a client knew that someday her confidences could be used against her, she probably would rather take on a case on her own rather than confide in an attorney. That is why, as we learned, we consider the attorney-client privilege to be so important – to foster communication between an attorney and client.

Thus, it is important to remember that, even in cases where a conflict of interest is not fatal to the representation, the legal professionals handling the case must be extra careful to protect confidential information garnered in the course of the prior representation.

Current Client Rules Summary

The general rule for "current client" conflicts of interest holds that a lawyer must not represent a client if the representation of that client will be directly adverse to the interests of another current client unless:

1. the lawyer reasonably believes that his representation will not adversely affect the relationship with the other client; and
2. each client consents after consultation.

Imputed Disqualification

As a general principle, if one member of a law firm is disqualified from handling a matter because of a conflict of interest, so are all the members of that firm. This can have harsh results in some cases, because firms can have hundreds or even thousands of legal professionals working for them and firms can have branches in many cities, worldwide. 

However, to mitigate the effects of this rule, in general, if an attorney has a conflict that would normally disqualify the entire firm, the firm may prevent the disqualification by erecting a “wall” of separation so that the attorney with the conflict plays no part in the case whatsoever and takes no part in developing the strategy for the case and shares no information that would compromise the interest of the party with whom the attorney has the conflict. This wall is sometimes known as an “ethical wall” or “Chinese Wall” (after the Great Wall of China).

Restrictions on Fees and Advertising

Contrary to popular belief, the areas of what fees attorneys may charge and how law firms may get clients are heavily regulated by the ethical rules.

The actual fee arrangement in an attorney-client relationship is generally left for the individual attorney and client to work out together. Nevertheless, the ethical rules set forth certain principles affecting how fees are set. The rules also govern what is acceptable as a form of compensation for lawyers. 

When we contemplate $500.00 per hour legal fees that are often charged by large corporate law firms, it is hard to imagine that the ethical rules mandate "reasonability" in setting legal fee rates. Nonetheless, it’s true. The ethical rules in all jurisdictions require that fees be "reasonable". Those big firm corporate fees, while seemingly outrageous, usually factor in a host of overhead obligations and assorted costs that an ordinary private client might not require for adequate representation. 

And as with any product, if you demand the name brand, you can expect to pay extra. Naturally, certain "name-brand attorneys" from well known firms and law schools sometimes end up costing a lot to retain. It is a matter of supply and demand; there is a huge demand for Harvard or Yale-educated attorneys, for example, and companies deem it reasonable to pay extra for their services. That does not mean the client will be guaranteed victory in a case, of course. As the system is designed, the truth is supposed to win out in court. Still, when all relevant factors have been taken into account, the Model Rules demand that all legal fees be “reasonable.” 

Sometimes, attorneys or firms will agree to get paid only if the case is resolved on terms where the client is successful. This arrangement is known as a “contingency fee” arrangement. In most cases, the attorney takes a set percentage of the client’s recovery. If the client loses and does not recover, the lawyer takes home nothing. So, working on contingency can be quite a gamble – especially if the attorney dedicates her entire practice to the resolution of one case. 

Contingency fees exist so that clients who cannot afford an attorney can also have access to the courts. However, there are also some dangers inherent in the contingency fee arrangements in that they may give the attorney too great an incentive to “bend” the rules to win the case and/or to try to put a premium on getting the highest possible monetary settlement or judgment at the expense of other interests of the client.

Thus, while contingency fees are allowed, there are some limitations to them. First, all contingency fee agreements must be in writing so that there will be available documentary evidence in case of a dispute between the attorney and the client. Also, in most jurisdictions, contingency fees are prohibited in certain types of cases, such as criminal cases and certain types of domestic relations cases. Also, contingency agreements may be voided if a client discharges his attorney in the middle of a case. Of course, in such a case, the attorney could collect for the reasonable value of the legal services provided up to that point.

Lawyer Advertising

Advertising by lawyers and law firms has long been frowned upon by the legal establishment. However, the United States Supreme Court has held that lawyer advertisement is “commercial speech” protected by the First Amendment to the United States Constitution. This means that although a state may establish reasonable regulations to prevent false or misleading advertising, a straight ban on lawyer advertising would be unconstitutional. 

The ethical rules hold that any type of communication about a lawyer’s services that is false or misleading will subject a lawyer to discipline. It doesn't matter whether the communication is technically an advertisement; the ban applies to personal communications, signs, business cards, letterheads, letters, and telephone answering machine messages.

In addition, in-person solicitation of stranger clients (sometimes scornfully referred to as “ambulance chasing”) is heavily frowned upon and prohibited in most cases.

Finally, it is very important to note that it is unethical for an attorney to hire or ask a non-lawyer to do anything that would be unethical for the attorney himself or herself to do.