In short, the Attorneys’ Code of Ethics is a set of state codes and rules of conduct that regulates the conduct of attorneys in that state. The purpose of the Attorneys’ Code of Ethics is that it establishes a Code that must be followed by all attorneys at all times in fulfilling their professional responsibilities in order to preserve the dignity and respect of the legal profession.
Before an attorney becomes a licensed attorney they will often be required to take an ethics exam, as well as take a solemn oath swearing to abide by the Attorneys’ Code of Ethics for their state of licensure. Although the Code of Ethics may differ slightly by state, generally an Attorneys’ Code of Ethics contains rules and regulations which ensure lawyers follow the law, pursue justice, and zealously advocate for their client’s best interests.
Model Rules of Professional Responsibility
Once again, every state is charged with drafting their own set of Attorneys’ Codes of Ethics and rules of professional responsibility that govern the attorneys licensed in their state. The Model Rules of Professional Responsibility were developed by the American Bar Association (“ABA”), a national association of attorneys, to act as a guideline for ethical conduct and rules for attorneys in most jurisdictions. Additionally, the Model Rules of Professional Responsibility were developed to help resolve moral and ethical dilemmas that attorneys and clients face.
Although the ABA Model Rules of Professional Responsibility is not binding on any jurisdiction, it does comprehensively lay out guidelines that many state bar associations choose to adopt for their own rules of professional responsibility. In fact, many jurisdiction’s rules directly mirror that of the ABA Model Rules of Professional Responsibility. The rules also help to assist attorneys who find an unclear area of the codes in their state to make sense of their ethical and moral choices as an attorney.
Examples of concepts that are included in the ABA’s Model Rules of Professional Responsibility include:
- Confidentiality: A lawyer shall not reveal information relating to the representation of their client unless their client gives them informed consent or the disclosure is impliedly authorized in order to carry out the representation of their client. Additionally, a lawyer shall also make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, any information relating to the representation of their client.
- This rule was developed so that an attorney can never use a client’s confidence or secrets to their personal advantage or for personal gain. However, there are some instances in which an attorney may reveal confidential information such as to comply with a court order or to prevent reasonably certain death or substantial bodily harm to another person;
- Competence: The rules make it clear that an attorney must provide competent representation to their client. This means that an attorney must have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of that client. If a lawyer is not competent to handle a client’s legal matter, that lawyer is generally required to either become competent, such as by consulting with another lawyer or conducting adequate research, or assisting their client in finding another attorney to handle the legal matter;
- Communication: One of the main reasons that an attorney will often be sued for malpractice or fired by their client is due to a lack of communication. The rules state that an attorney shall:
- Promptly inform their client of any decision or circumstance with respect to which the client’s informed consent;
- Reasonable consult with their client about the means in which their client’s objectives are to be accomplished;
- Keep their client reasonably informed about the status of their case;
- Comply with their client’s request for information; and
- Consult with their client about any limitation they as the attorney may have if their representation of their client conflicts with the rules. For example, if their client expects them to do something unethical or illegal, the attorney must inform their client that they will not be able to do so.
- Professional Judgment: A lawyer should exercise independent professional judgment on behalf of a client. This means that an attorney cannot accept employment from a client when a conflict of interest exists. Additionally, an attorney is to refrain from acquiring a financial interest in the cases, other than cases accepted on a contingency fee basis.
- “Zealous” Representation: Although “zealous” representation is never explicitly mentioned within the rules, many of the other rules that are present in the ABA’s rules infer that a lawyer should always represent their client zealously within the bounds of the law. There are limits to an attorney’s zealous representation of their clients, including:
- In cases where a client’s conduct are or could be illegal, a lawyer may refuse to aid or participate in the representation of that client;
- A lawyer may also not assert a legal position, file a lawsuit, delay a trial, or take any actions on behalf of a client when such actions are undertaken merely to harass or maliciously injure another party. If an attorney performs such actions they may be sued by both their client and the affected party for attorney malpractice;
- A lawyer is also not allowed to knowingly use perjured testimony or false evidence;
- A lawyer is also not allowed to knowingly assert false statements of law or fact;
- A lawyer cannot preserve or create evidence which the lawyer knows is false.
- A lawyer cannot assist their client in any conduct the lawyer knows to be illegal or fraudulent; and
- If a lawyer receives information that their client has conducted fraud on a person or tribunal, the lawyer must direct their client to rectify the fraud. If the client is unable and unwilling, the lawyer may then reveal the fraud to the individual or tribunal.
Once again, the Model Rules are simply a model of rules that help guide attorney ethics rules in the states. Therefore, it is important to consult your state’s local rules regarding the code of professional responsibility for lawyers to see whether or not your state has made any additions or changes to the model rules.
What Should I Do If I Think My Attorney Has Committed Malpractice?
If you believe that your attorney has committed malpractice, the first thing you should do is speak with your lawyer and ask for an explanation of their actions in writing. If your attorney is unresponsive or is unwilling to provide you with an explanation as to their actions or inactions on your case, then you should then proceed to file a complaint with the State Bar Association for your state. The State Bar Association is the organization within the state that licenses and regulates attorneys and attorney conduct within that state.
If the lawyer is unresponsive or not willing to discuss the matter, then that person may wish to file a complaint with your attorney’s State Bar Association. The Bar Association is an organization that licenses and regulates attorneys for each individual state. Examples of common attorney ethics violations include a lack of communication to clients, theft of a client’s funds, lack of due diligence on a case, not disclosing conflicts of interests, or dishonesty to name a few.
Do I Need a Lawyer to Help Me with My Attorney Malpractice Problem?
As can be seen, there are numerous ways in which an attorney may violate their ethical or professional duties which may result in their client being damaged in some way. Thus, if you are a client that believes that your attorney has committed malpractice, you may wish to consult with another experienced attorney that specializes in malpractice.
An experienced liability attorney can advise you as to whether or not you have an actionable case against your attorney and assist you in filing a civil lawsuit against them. Additionally, an attorney can also represent you in court, as needed.