What Are Legal Ethics?
The realm of legal ethics is a cornerstone of the practice of law, and a mediator must be aware of key concepts if lawyer clients will be part of the process. Essentially, legal ethics, or the standards of conduct for legal professionals, ensure that lawyers act with integrity, maintain client confidentiality, competently provide their services, and avoid or manage conflicts of interest.
Lawyer clients have ethical obligations to their clients, the court system, and the rule of law itself; a lawyer must effectively advocate for a client, honor the attorney-client privilege, and put their client’s best interests ahead of their own. At the same time, the legal profession is subject to considerable and constant scrutiny, and lawyers are subject to the disciplinary measures of state and local bar associations for any ethical violations . Because of these built-in deterrents, clients can generally be confident that they are receiving competent legal representation even when the particular situation or case could raise complex legal or ethical questions.
The task of reviewing the ethics rules of your local bars can seem overwhelming upon first glance. It is, however, relatively straightforward, particularly since the ethics rules for lawyers vary very little from state to state. The model rules upon which most state bar ethics rules are modeled, the American Bar Association Model Rules of Professional Conduct, only differ in the tiniest of details, allowing mediation attorneys to find their applicable legal ethics rules regardless of where they plan to practice.
Core Legal Ethics Principles
At the heart of legal ethics are the fundamental principles of confidentiality, conflict of interest and duty of loyalty. Confidentiality is the cornerstone of the attorney-client relationship. Clients must be able to freely discuss their cases with their lawyers, without fear that any information will be disclosed to outsiders. In fact, even a client’s existence as a client must be considered confidential, unless the client waives this right.
Typically, lawyers are prohibited from revealing anything they learn from their clients. This holds true not only during the representation, but also after it has ended. Many jurisdictions, however, allow attorneys to discuss client matters with the client’s informed consent or at the order of a tribunal. A client can always waive or "consent" to the privileged nature of a discussion between them and their attorney. For this reason, lawyers must specifically instruct their clients about the ramifications of their waiver of the confidentiality privilege.
Conflict of interest occurs when the representation of one client is adverse to that of another client. Attorneys have an ethical obligation to avoid such conflicts, as such conflicts can diminish the attorney-client relationship and even cause certain clients to distrust their attorney. The American Bar Association Model Rules of Professional Conduct provide a detailed set of guidelines that attorneys must follow regarding client representation, which includes conflicts of interests. An attorney can continue to represent a client despite a potential conflict of interest only if they obtain an informed consent from the affected clients.
Another conflict of interest situation can occur when a lawyer is asked to represent a client against a person or organization that the lawyer previously represented. Attorneys tasked with such representation have an ethical duty to preserve the confidences of former clients, even if they are ongoing. Although lawyers must maintain the confidences of former clients, they can represent current clients who have claims that are materially adverse to those of former clients, as long as the former clients give informed consent.
Duty of loyalty requires attorneys to be loyal to their clients. This implies, amongst other things, that an attorney must not represent clients with conflicting interests. Duty of loyalty also means that an attorney must avoid business transactions with clients, unless certain conditions are met, including: (1) the transaction is fair and reasonable to the client; (2) full disclosure is made of all material terms; (3) the client has a right to obtain independent counsel on the transaction prior to execution; (4) the client agrees in writing to the terms of the transaction; and (5) the writing is signed by the client. Attorneys must be particularly careful when representing relatives, especially immediate family members.
The American Bar Association Model Rules outline various aspects pertaining to legal ethics, including those discussed above. States and various courts have adopted and been guided by the Model Rules. Thus, there can be substantial differences in how the Model Rules are applied in the various jurisdictions.
Importance of Legal Ethics Literature
Applicability of Legal Ethics Books for Understanding and Implementation of Ethical Practices: A Necessity for Legal Professionals
Unquestionably, there exists an extensive range of books most of which would serve as authoritative works with regard to lawyers, legal professionals, and other relevant entities. Even though, there exists an increase in publications and discourses on the subject of legal ethics relatively speaking, there still remains a lot of grey areas that necessitate general consensus as to the significance of legal ethics as a social tool and psychological phenomenon between a lawyer and his client. Legal ethics books and articles point out the salient sub-divisions of legal ethics such as; Societal and contextual factors, Conflicts of interest, Duties to the Court, Firm or organization ethics, Civil and criminal liability, Ethics and professionalism, Mechanisms for enforcement and sanctioning or disbarment, Maintaining knowledge of "lawyer law", Conflict of interest rules, Honesty and candor, and Confidentiality, Obligation to provide competent representation etc. Legal ethics books range from most general, comprehensive, and broadly relevant discussions to more specialized approaches; including the historical evolution of legal ethics, philosophical analyses, and the role of pertinent organizations, examining various ethical questions and dilemmas confronting attorneys or public policymakers, and/or concentrating on specific substantive areas. Many legal ethics books purely present laws governing legal ethics, while others seek to provide guidelines for the proper application of those laws, usually based on case-law that have focused on relevant judicial opinions as to the application of legal ethics in a given context. Irrespective of the background, focal point and or focus groups, legal ethics books are very fundamental readings for law and legal professionals just starting on the road to career achievement and ethical comprehension generally. The clarity that a legal ethics book can proffer to society and its potential impact on the manifestation of lawyers’ behavior and professional demeanor is indisputable.
Best Books on Legal Ethics
One of the best ways to deepen your understanding of the complex subject of legal ethics is to read the work of those who are considered experts in the field. Many of them have written widely and have become recognized authorities on their chosen subject within legal ethics. This is the second section of my four-part series on legal ethics books. In part one, I offered my recommendations on some of the best law review articles, journals, and blogs on the subject. Here, I list some of the most recommended legal ethics books.
The American Bar Association has published dozens of published books that are dedicated to research and commentary on legal ethics as it is practiced in the United States legal system. Perhaps the most notable of these is the ethics treatise by Committee on Professional Ethics the Model Rules of Professional Conduct. It can be found in most law libraries and I highly recommend it for both law students and legal professionals. Any attorney in the United States will have a copy of the latest version of the Model Rules of Professional Conduct on his bookshelf. A similar treatise is the ABA’s Criminal Justice Standards, which covers the ethics governing prosecutors, defense attorneys, criminal investigative agencies, defense attorneys, and judges. The Eligibility Standards for Appointment as Counsel in Death Penalty Cases is also included here. For legal professionals seeking practical guidance on their daily ethics decisions, read Lawyer’s Desk Book by the ABA’s Center for Professional Responsibility. It touches on the most fundamental issues that are faced by lawyers every day. Another essential reference book for lawyers in the United States is Professional Responsibility in the Life of the Lawyer (National Legal Ethics Library) by Charles W. Wolfram. It is directed primarily at lawyers in the private sector but it is so comprehensive, that I use it when conducting research on legal ethics cases in government agencies, the judiciary, Congress, and the President. While this is partially a textbook for legal ethics classes, Ethics and Social Impact (National Legal Ethics Library) by Henry R. Cheeseman is a must-read for anyone who wants to fully understand the social context of the legal profession and how moral philosophy and ethics intertwines with the practice of law.
Legal Ethics Case Studies
Case studies are an outstanding means to learn legal ethics. So far as I know, no other area of professional responsibility has so much didactic material readily to hand. I have read most of the books listed below, many of them more than once. In my judgment there is not a single category of ethical misconduct for which a lawyer has not been disciplined or for which a quintessential case study has not been written. For example, as you will see, I even wrote one on fees, which as one can easily imagine is an area of both common and serious disciplinary infractions.
I am aware that some educators and judges at both the national and state levels believe case studies do not work well and/or produce unfortunate results in legal ethics education and adjudication. In my 20+ years of working with law schools and bar associations, I have not found this. Indeed, in teaching ethics to both law students and practicing lawyers, I have encountered no set of facts for which an ethical teaching case has not been written or is not readily available. The authors of these cases in my experience have taken great care to draw upon real-life and specific factual circumstances involving ethical issues in practice. Of course, when we teach, read and write in this area, we should take care not to lose sight of the particular facts that make the case interesting from an ethical point of view — they may be keys to resolving the ethical situation described .
Of course, the case studies developed by various scholars in this area also represent the author’s analysis of the ethical situation and his/her own substantive views about the correct interpretation of the applicable rule. Indeed, ethical scholars disagree and even fight about the application of the rules and about the propriety of certain ethical conduct. These disputes and disagreements, more than in most areas of the law, reinforce the fact that there is often no one answer as to what conduct is ethically appropriate or impermissible.
I have been advised over the years that many people go to church on Sunday and listen to unsought sermons. One hears what one hears and reacts to it. My intention here is not to preach or preach down but merely to offer, for whatever its worth, the benefit of my moral sense and understanding of the law of ethics.
The typical teacher or judge will not — indeed simply cannot- teach or understand his or her subject without backing it up with the examples, the case studies that inform and illustrate it. Moreover, the lawyer-scholar cannot hope to write meaningfully about his or her subject without offering case studies to illustrate his or her ideas.
In addition to the Proposition Paper Bibliography of Ethics and Professional Responsibility articles that I have authored, you can also access an older but still useful bibliography that provides the titles of some of the best case studies in the field.
Current Legal Ethics Challenges
In the rapidly shifting landscape of contemporary society, the legal profession finds itself facing new and evolving ethical challenges that demand attention and solutions. One such challenge is the commercialization of legal services. As traditional modes of practice give way to digital platforms, the line between lawyer and salesperson becomes increasingly ambiguous. Many legal ethics books, like "The New Rules: A Guide to the Professional Responsibility of Lawyers," confront this commercialization, calling for a re-examination of how fees are charged, disclosed, and explained to the client. Discussing the challenges that the internet, social media, and other areas of emerging technology bring to the field of legal ethics and professional responsibility, "Legal Ethics in the Practice of Law" (2019) outlines the dangers of commercialization and directly addresses issues arising from the outsourcing of legal tasks and the access-to-justice gap.
Approaching these new challenges requires addressing new questions that test the boundaries of established doctrine. For instance, the impact of globalism is examined in "The Globalization of Ethics: Legal Ethics for a New World Order." Affecting everything from how lawyers interact with each other to how they interact with clients, this new age of globalization and international law poses questions that legal ethics books answer in part by extending existing theories and doctrines abroad. Other areas of inquiry are more experimental. Treating novel questions about how to apply Rules of Professional Conduct to new contexts, "Lawyer Ethics in an Era of Legal Practice Innovation" aims to fill the very gap it identifies by stimulating further ethical analysis and providing an in-depth glimpse into its authors’ thought processes on how the legal profession’s ethical rules can be applied in changing times.
At other times, legal ethics books directly approach questions that arise from the technological sphere. They wrestle with issues like what protections digital communications offer to attorney-client confidentiality, what restrictions and obligations technology creates for the preservation of client property, the new role of technology in attorney-client communications, and what risks modern technology imposes on traditional ideas of conflict of interest. "The Law of Lawyering" focuses on these issues in its chapter on Confidentiality, focusing on how the new virtual world poses evolving challenges for lawyers.
Continuing Education and Legal Ethics
The primary responsibility of a lawyer is to represent his or her clients and the needs of those clients will often be the subject of continuing education and professional development seminars. However, in addition to serving the needs of their clients, lawyers must serve the interests of the legal profession and the public by seeing that the administration of justice is fair and efficient.
Lawyers have sanctioned a system whereby other lawyers (as officers of the court) are responsible for seeing that the system is fair and accessible to all. To this end, considerable effort has been made to develop a system of ethics by which conduct is monitored and enforced by the membership itself. And although lawyers are, by and large, supportive of this system , they cannot turn a blind eye to those whose conduct threatens that system and those whose misconduct puts the public at risk.
Laws and regulations governing ethical conduct are updated and revised from time to time. If lawyers do not keep pace with these changes, they may fail to uphold their ethical duties to clients, the court and the public. Continuing legal education is one avenue by which lawyers can update their knowledge and awareness of ethical issues and obligations. It is the responsibility of the individual lawyer to pursue the CDP requirements, stay abreast of changes to the Code and engage in self-evaluation of their ethical conduct.
Lawyers can better further the purpose of the group through both attending programs and engaging in the kind of self-analysis that makes it possible to address ethical issues on their own rather than seeking external advice.