Legal Ethics Memorandum (Essay Sample)
Unlike most professions, the legal profession is self-governing in that it is regulated by other lawyers and judges instead of other outside agencies or the government. Therefore, it is imperative that lawyers be governed by established rules of conduct in order to maintain the highest level of professionalism necessary to warrant integrity and credibility in our justice system.
The State of Columbia is in the process of drafting its Rules of Professional Conduct. The Legal Ethics Subcommittee of the legislature has identified several ethical problems involving professional misconduct on the part of licensed lawyers. The Subcommittee has requested information regarding existing governing ethical rules for these particular concerns. The four issues are as follows:
- What are the governing ethical rules for a non-practicing lawyer such as a legislator or law professor who commits misconduct?
- What are the governing ethical rules for a practicing lawyer who commits misconduct that does not involve the practice of law?
- Do lawyers have a duty to report other lawyers who commit misconduct to the Bar?
- Does a lawyer who learned of misconduct from her client and was asked not to report the misconduct have a duty to report the misconduct to the Bar?
The first issue is related to non-practicing lawyers and their liability if they commit misconduct. According to the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 04-433 (05/25/04), a non-practicing lawyer such as a law professor or a legislator remains subject to the disciplinary rules of a practicing lawyer as long as the non-practicing lawyer remains licensed by the Bar. To illustrate, in the Magar case, the Supreme Court of Oregon upheld a disciplinary suspension of an inactive member of the Bar. In re Magar, 337 Or. 548 P3d (2004). The same court also held in the Smith case that an inactive attorney remained subject to the disciplinary rules. In re Smith, 318 Or 47, 861 P2d 1013 (1993). Therefore, it is clear that as long as a lawyer remains licensed by the Bar irrespective of their inactivity in the practice of law, they remain subject to the disciplinary rules held by the Bar.
The second issue involves misconduct on the part of a lawyer where the misconduct does not involve the practice of law. Model Rule 8.4(b) clearly outlines these issues: “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Therefore, a licensed lawyer is subject to disciplinary action for acts of misconduct committed by the licensed lawyer whether related to his practice or in a personal setting if the misconduct involves dishonesty, lack of trust or lack of fitness as a lawyer.
The third issue involves a duty to report misconduct on the part of another attorney. First, it is important to note that the rules governing active attorneys are the same for non-active attorneys as long as they are licensed by the Bar. Model Rule 8.3 governs this question by requiring a lawyer to report the misconduct of another lawyer if it raises a “substantial question” as the honesty, trustworthiness or fitness of that lawyer. As noted, the scope of the rule encompasses non-practicing lawyers as long as they remained licensed. This issue again hinges on the fact that as long as an active or a non-active lawyer remains licensed by the Bar, they remain subject to the disciplinary rules. Here, the key to holding a lawyer responsible for their actions, not related to their law practice, revolves around honest, trustworthiness or fitness of being a lawyer. If a “substantial question” as to these issues is raised, then the threshold of rule will be met and the lawyer will be subject disciplinary action. Further, a Hawaii Bar Journal article titled, Ethics and Issues, states that an attorney is required to inform the Office of Disciplinary Counsel if he learns of misconduct on the part of a licensed active or inactive attorney. Carole R. Richelieu, Ethics & Issues, 9 Hav. B.J. 18 (2005).
However, in California, no such duty to report exists. So as you can see, states differ in the issue of duty to report misconduct on the part of a licensed active or inactive attorney. The majority view and the most prudent view would be to provide for such duty to report in the Rules of Professional Misconduct.source..
TO: Legal Ethics Subcommittee
FROM: Lawyer for Subcommittee
SUBJECT: Rules of Professional Conduct
Rules of professional conduct, in essence, comprise the disciplinary standard for lawyers who practice law in a given state. The Rules, along with the law and other regulations that govern lawyers, specify the boundaries of impermissible and permissible lawyer conduct (Robinson, 2010). These Rules are interpreted as regards the context of legal representation as well as of law itself. The purpose of this memorandum is to address the ethical rules that exist at the moment which govern 4 ethical situations that the State of Columbia may adopt as its own. These 4 ethical problems or situations are as follows: (i) some lawyers for instance other law professors and legislators commit misconduct whilst not practicing law; (ii) some lawyers, while practicing law, commit misconduct which does not involve law practice. (iii) Do lawyers who know about misconduct have a duty to report their colleagues to the Bar? (iv) Even if there is actually such a duty, what if Lawyer A learned from her client of the misconduct of Lawyer B, but the client asked Lawyer A not to make a report?
Ethical problem 1: Certain lawyers commit misconduct while not practicing law
At the moment, there are quite a few ethical rules that govern this ethical situation and which could be adopted by Columbia. The American Bar Association (ABA) Ethics Committee, in the ABA Formal Opinion 336 (1974), noted that even though most of the Model Code’s Disciplinary Rules are applicable to the conduct of a lawyer only when he or she acts in his or her professional capacity, some Rules – such as those addressing obligations of a lawyer to refrain from criminal misconduct or conduct that involves dishonesty, misrepresentation, deceit, or fraud – are intended to be applicable even when the lawyer does not act as a lawyer. According to the opinion, whether or not a lawyer is acting in his or her professional capacity, he or she must always adhere to every applicable disciplinary rule of the Code of Professional Responsibility (Michmerhuizen, 2015).
Provisions of DR 1-102(A)(3) and (4) DR 1-102(A)(3) as well as (4) state that: a lawyer should not be engaged in unlawful conduct that involves ethical turpitude, and that a lawyer must not be engaged in conduct that involves misrepresentation, deceit, fraud or dishonesty. These provisions apply to all conducts of lawyers whether or not they are practicing law (Michmerhuizen, 2015). This is comparable to subparts (c) and (b) of the American Bar Association Model Rule which spells out that the following constitute professional misconduct on the part of the lawyer: (b) committing a criminal action which reflects negatively on the lawyer’s trustworthiness, honesty, or suitability as an attorney in other respects. (c) Engaging in conduct that involves misrepresentation, deceit, fraud or dishonesty (American Bar Association, 2015a).
Any lawyer or attorney is subject to professional discipline for conduct which he or she engaged in outside her/his role as an attorney/lawyer. In 1974, the lawyer discipline case of Maryland State Bar Association versus Spiro Agnew was resolved by the Maryland Court (Michmerhuizen, 2015). The courthouse held that a lawyer’s professional obligation, provided that the lawyer remains a Bar member, are not affected at all by a decision of the lawyer to pursue his or her livelihood through practicing law, becoming a public servant, getting into the business world, or venturing into any other endeavor. The court added that if an attorney chooses to be a businessperson, she brings to her merchandry the professional requirements of uprightness, honesty, as we...
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