What It Means to Be an Ethical Attorney
Matthew C Hayden
PR Essay 3

The legal profession is a path when one must ethically while wearing multiple hats. First at all times you must realize you are held to a standard code of ethics even when you are on vacation. An attorney is held to the same code of ethics if he is sitting in his office with a suit and tie or if he is in Vegas at a friends bachelor party. The second ethical route is that an ethical lawyer must affirmatively choose to do things that are good. Under the Model Rules of Professional Ethics many of the rules differ on the use of “shall” vs “may”. The tricky situations come when a lawyer “may” disclose information that could hurt his relationship with the client. When you are wearing the hat or being an ethical attorney it can be difficult to choose between right and wrong. The first scaled weights exist when you are representing your clients in the situation of attorney client privilege. As an attorney you are an officer of the court and owe a duty to justice, the rule of law and the tribunal. On the other hand you have a duty to your client. The client must be able to completely honest with you and know that you will keep the conversations secret. As an attorney you must act as a zealous advocate of the client and further their interests. Unlike most other professions that deal in arm’s length interactions an attorney owes a fiduciary duty to his or her own client. Rule 1.1 is the Duty of Competence which goes beyond the knowledge of the law to encompass skills preparation and diligence. Rule 1.3 states the duty of the attorney to handle all matter with reasonable diligence and promptness. As an attorney if you do not follow these rules you not only commit an ethical transgression but can also be held liable to your client for damages. Other fundamental fiduciary duties include communication, fairness, confidentiality of information, loyalty and safekeeping of client property. Rule 1.4 states an attorney shall promptly inform the client of any decision or circumstance which requires the client’s informed consent. This means do not avoid your clients phone calls and emails. An attorney should promptly inform their client of all legal outcomes and any situations that need their attention. An attorney also owes the client a duty of fairness. This includes charging your client reasonable fees for your services depending on the type of work, your level of experience and the cost of similar work in that legal market. One more important fiduciary duty is the duty of loyalty. An attorney under Rule 1.7 shall not represent if there’s a concurrent conflict of interest. Rule 1.9 states an attorney shall not represent another person in the same or substantially related matter in which the person’s interests are materially adverse to the interest of the former client. Rule 1.7 governs conflict for current clients while Rule 1.9 protects the interests of the former client. The United States was founded on the rule of law and the lawyers must help to obtain this law. The system we live in today would fall apart without a trustworthy judicial system. Every citizen should be able to have a fair trial and be allowed to have representation if they so desire. As we see today that there are some communities where are judicial system has not worked and that has come through unethical actions. The attorney is an officer of the court functioning in an adversarial system. For a true adversarial system to flourish you need a neutral decision maker which is typically a judge and jury which are obligated to remain neutral. Next you need competent advocates (i.e. attorney) whom advocated zealously for their clients. Finally you need fair rules of procedures designed to allow presentation of relevant evidence to the neutral decision maker. At attorney may at times violate their duty to client in favour of the tribunal. Rule 3.1. prevents an attorney from making frivolous claims or defences. Rule 3.3(a)(3) states a duty to reveal client perjury. Under this rule you must first advice your client not perjure, then must try to fix the perjury and finally must inform the tribunal if the attorney knows the client has given false testimony to the tribunal. Rule 4.2 prohibits communication with represented adverse parties unless the attorney ahs consent from the adverse attorney or is authorized by law or the court. The reasons for these sets of rules is that excessive zeal on behalf of a client can undermine rather than foster the adversarial system our country is founded on. Further, societal interest or the interest of third parties in some instances outweighs client interest, particularly when the clients interests is illegitimate. Courts have created laws governing attorneys in 5 major categories of cases: disciplinary, malpractice, disqualification motions, sanctions and criminal prosecutions. Disciplinary proceedings brought against attorneys charging them with violation of the rules of professional conduct or other forms of misconduct. This can lead to various forms of punishment such as disbarment, suspensions or reprimands. Malpractice are civil lawsuits brought by clients or third parties seeking damages from attorneys. Disqualification motions are filed as part of civil or criminal actions. These occur when attorneys representing the opposing party should be disqualified from representing that party because of some ethical violation such as conflict of interest. Sanctions typically seek a monetary punishment against a party or that party’s attorney for some form of litigation misconduct such as discovery abuse. There are other sources that place a burden on the attorney and help govern their actions. Statutory law can be less significant in the area of attorney’s obligations than in many other fields of law because the regulation of attorneys and judges is largely the constitutional province of the courts. This is due in part to the concept of separation of powers. Administrative rules and regulations can govern lawyers such as the Sarbaine-Oxley Act. This can be complex because the law could override professional standards such as a state statute limiting contingency fees. However this can be tricky when trying to develop a philosophy for lawyering. There are three main aspects of professional life in which difficult issues arise: personal where relationship between private and professional life conflict, practice where uncertain questions arise in the course of representation and institutional conflict can put the attorney position in a position of conflict. There are four different ways to approach the philosophy to lawyering: (1) client-centered lawyering, (2) philosophy of morality, (3) philosophy of institutional values, and (4) philosophy of attorney self interest. The first philosophy is client centered lawyering where you act as more of a hired gun. This is founded in the principle of professionalism where a lawyer should be doing everything possible to advance their clients’ interests. Under this thought process a lawyer should refuse to act only when their conflict would clearly violate a Rule of Professional Conduct or applicable law. Another principle of client-centered lawyering is the principle of non-accountability. Rule 2.1 allows that an attorney may with discretion advise client about morality of actions. This would be with the morality of killing someone in war as part of their military duty. Attorneys are not morally responsible for actions they take in their professional role on behalf of clients. The second philosophy is the philosophy of morality and that in the case of doubt the attorney should to his/her own moral principles. Under this view attorneys are morally accountable for the actions they take on behalf of their clients and must be prepared to defend the morality of what they do. The third view is the philosophy of intuitional values where in the case of doubt the attorney shall adhere to values that express the social and institutional role of the attorney. A benefit of this view and why I believe this is the best philosophy is that institutional values often embody widely held moral principles. For example, 6 values that lie in core of professionalism include: an ethic of excellence, an ethic of integrity such as a responsibility to say no, a respect for the system and rule of law, a respect for other attorneys and their work, a commitment to accountability and a responsibility for adequate distribution of legal services. The final philosophy is one of self interest in respect of the attorney. Under this view in any case of doubt the attorney shall act in a way that maximizes interests such as reputation, money and avoidance of risk of discipline. This philosophy ends up hurting the client and is in my opinion the least effective manner to handle a legal practice. I think to be an ethical attorney one should follow the philosophy of institutional values. Under this line of thought you would ask your mentors for advice on how to handle the various issues that come before you in your own practice. When they are not able to help you should always call your local bar on how to handle this situation. Under this movement you can begin to see significant efforts to articulate a set of values that reflect the social role of the attorney and counterbalance the tendency toward over zealousness. In the United States everyone deserves a right to a fair trial, a right to a competent attorney to zealously advocate their case and for an attorney who follows his public and private life to the highest ethical standards of the profession. I think being an ethical attorney is living all aspects of your life according to the ethics and moral rational set out in the institutional values that protect our legal system.