Deborah L. Rhode is the Ernest W. McFarland Professor of Law and the director of the Center on the...
Scott Cummings is the Robert Henigson Professor of Legal Ethics and Professor of Law at UCLA School of Law,...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...
Upon their admittance to practice, new attorneys agree to abide by their jurisdiction’s ethical rules. For most states, this means upholding some version of the ABA’s Model Rules of Professional Conduct, which prescribes standards of legal ethics and professional responsibility for lawyers. However, despite the existence of these rules, and all lawyers’ agreement to follow them, violations of the rules are not exactly uncommon.
On today’s Lawyer 2 Lawyer, host Craig Williams is joined by Deborah L. Rhode, the Ernest W. McFarland Professor of Law and the director of the Center on the Legal Profession at Stanford Law School, and Scott Cummings, the Robert Henigson Professor of Legal Ethics and professor of law at UCLA School of Law, as they explore legal ethics in today’s world, the value of adhering to the ethical rules, and what lawyers can do to maintain the reputation of the profession.
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Legal Ethics and the Profession
Deborah L. Rhode: It’s very difficult oftentimes to get adequate enforcement of those code provisions because in most states, the enforcement is controlled by the organized bar or agencies that are quite aligned with bar interests. So that’s the central structure and the central problem with having lawyers regulating lawyers.
Scott Cummings: One of the things that the legal ethics rules attempts to do with lawyers is to make sure that lawyers are following certain minimum standards of conduct in order to protect clients’ interests against lawyer overreach.
Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
I write a legal blog named May It Please The Court, and have two books out, one titled ‘The Sled’ and the other titled, ‘How to Get Sued’.
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Well legal ethics is defined as the minimum standards of appropriate conduct within the legal profession. Upon their admittance to practice, new attorneys agree to abide by their jurisdictions’ ethical rules. For most states, this means upholding some version of the ABA’s Model Rules of Professional Conduct, which prescribes standards of legal ethics and professional responsibilities for lawyers.
However, and despite the existence of these rules, all lawyers’ agreements to follow them as well, violations of the rules are not exactly uncommon. So today on Lawyer 2 Lawyer, we will explore the legal ethics in today’s world, the value of adhering to ethical rules and what lawyers can do to maintain the reputation of the profession.
To help us explore this topic we have two great guests for you today. First up, we have Deborah L. Rhode, the Ernest W. McFarland Professor of Law and the Director of the Center on Legal Profession at Stanford Law School. She’s the founding chair of the section on Leadership of the Association of American Law Schools and was the Founding President of the International Association of Legal Ethics.
Welcome to the show Deborah.
Deborah L. Rhode: Thanks for having me.
Scott is also the Faculty Director of Legal Ethics in the profession known as LEAP, a program promoting research and programming on the challenges facing the contemporary legal profession. Welcome to the show Scott.
Scott Cummings: Delighted to be here.
Deborah L. Rhode: Well the state courts set ethical standards for lawyers practicing within their jurisdiction and they will also allow legislators to enact statutes that the courts view as consistent with their own regulations. And the central problem with that system is that it turns out to be lawyers regulating lawyers.
Most state courts defer to the organized bar, the ABA, the National Bar Association has set the standards that provide a model for various states to adopt and most states have adopted those in pretty much the form that the ABA recommended although with some modifications and in certain hot-button areas.
But really state courts are quite dependent on lawyers both because lawyers support their campaigns, they provide recommendations, endorsements and campaign donations and state court judges are members of the profession, most of their colleagues have always been lawyers, so they tend to resolve all doubts in favor of the profession.
And the problem comes in when the professions’ interests aren’t entirely the same as those of the public. So you have standards that are pretty much set at a very low level that is going to just prohibit the most egregious forms of misconduct.
And it’s very difficult often times to get adequate enforcement of those code provisions because in most states, enforcement is controlled by the organized bar or agencies that aren’t quite aligned with bar interests. So that’s the central structure and the central problem with having lawyers regulating lawyers.
Scott Cummings: Well I think there are a couple of different policies that Deborah highlighted. One I think central rationale is to protect clients when we talk about legal representation and professional conduct. The real risk is that we have clients who have to rely on a service whose quality is really difficult for them to judge, right?
They have to go to lawyers and depend on expertise when the layperson, who is a client, doesn’t have an adequate perspective or basis to really evaluate those services and their effectiveness; like when I go to the doctor, it’s really hard for me to assess whether that doctor’s recommendation is actually on point.
And so one of the things that the legal ethics rules attempts to do with lawyers is to make sure that the lawyers are following certain minimum standards of conduct in order to protect client’s interest against lawyer overreach.
I think the other issue which you alluded to in your opening remarks is that lawyers play a really, really important role in the overall function of our democratic system. They are literally responsible for upholding the rule of law in standing for justice and so lawyers as a profession really have to be held to high ethical standards because they are so essentially important in how our government functions.
And so those ethical rules are really designed in part also to uphold and uplift the reputation of the bar in order to make sure that people understand the centrality of lawyers and protecting the rule of law.
Deborah L. Rhode: Yeah well you have some non-lawyers on the bar disciplinary committees, which is a good thing except that they’re often picked from lists that the bar provides or approved. So you’re not going to tend to get flaming consumer advocates as the lay members. And of course, they’re generally a minority of those on the committees.
The actual drafting of the rules however generally doesn’t have any lay representation. The Commission that drafted the model rules of conduct that most states use for their own code structures and designs didn’t have any lay people. And there is an established mechanism for getting lay input into the development of bar ethical rules in most jurisdictions.
And occasionally, when the public is asked to comment on something as it recently was in California on rule reform, the public has no idea what the issues are, and no way of really knowing. And so surprise, surprise 98% of the comments that came in were from lawyers who mainly didn’t like any of the sort of public orient and changes so there’s some structural impediments to making the system work better.
And Scott is certainly right that it’s an enormously important way of making our democratic system work because courts act as checks on governmental overreach and an independent legal profession that abides by high ethical standards is really critical to the functioning of the system.
And also lawyers set the rules to determine who can provide legal advice and assistance and oftentimes, their rules favor giving a monopoly to lawyers even in cases of routine services where the public might benefit from having a wider choice of service providers who were expert in discrete fields, but don’t have to go through all the hoops that lawyers do in order to become a practitioner.
Scott Cummings: I mean by far the most common ethical violations are in the category of lawyer neglect and financial abuse. And so neglect are things that raise sort of basic incompetence or negligence issues that lawyers miss deadlines, fail to file motions, and result in injuries to the clients.
And so if you look in California and across the country people have studied this issue find that those kinds of complaints rise to the very top of the list in terms of the ethical misconduct of lawyers.
Financial abuse is stuff like lawyers charging too much for their services, failing to return client retainers or settlement funds or otherwise misappropriating funds from their client and those unfortunately are also very high on the list in terms of ethical misconduct of lawyers.
One thing to note in terms of ethical misconduct in the types of rule violations that we often see that lawyers engage in is that it’s not evenly distributed. In other words, small and solo practice lawyers are much more likely to be found guilty at ethical misconduct than their large firm counterparts and that’s not just because they are routinely more guilty lawyers, it’s because they often lack the infrastructure and support to really manage a loss of the law practice management that can often result in ethical violations.
So I think when we think about the prevalence of ethical misconduct and where it gets targeted, that we really need to be mindful of equity and ethical sanctions.
Deborah L. Rhode: Well, for example, tickler systems that alert lawyers when deadlines are coming up, some kind of a backup system if aware gets snowed with some competing calls on his or her time at the same moment, big firms usually have ways to cover for that.
Also a large percentage of problems arise from where’s substance abuse and mental health problems and we really need better ways to provide assistance for lawyers who are struggling.
Also malpractice insurance would help a lot. Some disciplinary systems don’t even cover sort of routine overcharging or minor neglect complaints on the theory that clients can have a civil malpractice liability and sue for damages. But that turns out to be a pretty expensive process and they have to hire another lawyer which if they’ve been burned once, they don’t necessarily want to do.
And unless damages are pretty clear and pretty substantial and the lawyer has malpractice insurance that will cover it, it often isn’t worth it to sue the individual lawyer. Estimates vary but only about half of lawyers carry malpractice insurance and as you might imagine the ones who don’t have it are the ones who need it most, who are most likely to be sued, they’re the ones sort of at economically marginal levels.
So it would be better if all states required lawyers to carry malpractice insurance and set up a kind of public fund to make it reasonably cost-effective for them to do so.
When statement is done it finds that lawyers like that pretty well. So that’s an obvious area where we could improve public protection and also give lawyers more incentive to avoid the minor levels of disciplinary violations or malpractice that we now see.
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And Scott Cummings, the Robert Henigson Professor of Legal Ethics and Professor of Law at UCLA School of Law.
We have been discussing legal ethics, the ABA Rules of Professional Conduct in maintaining the reputation of the legal profession.
And Scott, right before the break Deborah was talking about insurance and it’s interesting that there’s not a universal requirement for carrying insurance, it’s almost like the uninsured and underinsured motorist coverage we see on automobile insurance and there’s also no state fund that’s readily available at least here in California that I know of.
Can you talk about what state funds are might be available and what kinds of insurance issues come up for lawyers?
Scott Cummings: Well, I mean I think Deborah laid it out really nicely. I think the Bar does have access to interest on client funds that gets allocated toward supporting legal aid and other organizations that promote access to justice.
We might imagine a system in which the bar was able to collect more money through dues and other mechanisms that might be put aside as Deborah indicated in order to promote compensation for clients who have been wronged by lawyers and who don’t have access to other sources of redress like hiring lawyers and pursuing malpractice claims.
And so I think putting aside money and sort of a Victim Compensation Fund in some respects might be a good idea and might be a way of kind of covering at least at the baseline level some of the more egregious harms that clients confront based on lawyer misconduct.
Deborah L. Rhode: Well, alas, a lot of lawyers are very reluctant to report misconduct that they observe for a couple of reasons. They are worried about retaliation, they’re also worried that it might seem hypocritical, he who has never sinned should be the one to cast the first stones and a lot of lawyers think that there but from the grace of God, 00:16:38 so that’s a deterrent and also a lot of them believe that the bar disciplinary process isn’t going to be very responsive.
And that is a major reason why judges don’t report conduct that they see going on in their courtroom. And alas, they are right, the disciplinary system often is slow and the sanctions are really inadequate to deter most abuse.
Less than 5% of the complaints that are brought result in any public discipline.
So it’s not a great system, and we don’t have a lot of reporting, and then it’s true that a lot of the reports that disciplinary agencies get are either clients who are just unhappy with the result, so they blame the lawyer or it’s in some instances an adversary who is unhappy with how the case is gone and wants to retaliate against the other lawyer.
So a lot of complaints do need to be weeded out, but there’s some evidence then an independent oversight board that was controlled by the public not the profession would do a better job and certainly Great Britain, Australia who had those kinds of systems of co-regulation in which the bar shares authority with the public do a somewhat better job getting responsiveness to public complaints.
Scott Cummings: If I could just add to that briefly, I think one of the important reasons that we have rules that require lawyers to report another lawyers is because lawyers often have unique insights into other lawyers’ ethical misconduct they work with them and the same firm for example and therefore might be able to see things that clients might not be able to detect.
I agree with Deborah wholeheartedly in terms of some of the barriers. I think some other things to think about are just the ambiguity of the ethical rules themselves. The rule that requires lawyers to report another lawyers doesn’t require it in every situation but only when there is a substantial question about the other lawyer’s fitness to practice and I think that ambiguity in the standard often allows lawyers to kind of waive a lot of responsibility to report.
I think another dynamic that is important to mark is just that if you are a subordinate lawyer, a junior lawyer in a law firm, and you see ethical conduct on the part of superiors, there are massive deterrents to reporting superior misconduct in ways that we really have to think about how to protect those junior lawyers, so that they can do the right thing and not feel like they are going to suffer reprisal.
Scott Cummings: That’s an interesting question, that there are Whistleblower protections but they’re not evenly distributed across the bar, and so some of the cases that have looked at retaliation against lawyers for reporting misconduct of other lawyers and firms have given pretty broad and strong protections to associates who do that, who are retaliating against for reporting and fired. But they don’t give the same protections to partners who report on other partners.
So I think there’s some discrepancy there that still is a deterrent particularly again if you’re at the top and you’re looking out at other lawyers that are within your partnership, you have to be able to feel confident that by reporting their misconduct you’re not going to lose your position.
Deborah L. Rhode: Yeah well Michael Avenatti is kind of a poster child for what you don’t want in a high-profile lawyer and his misconduct is everything from sort of not releasing client funds to public misrepresentations and fraudulent misrepresentations. So it’s pretty egregious conduct that he didn’t get called on until a lot of people had lost a bunch of money. And I think that speaks to the failures we noted earlier in the disciplinary and malpractice systems.
In terms of the mass solicitation of clients at disaster sites, ambulance chasing has a really bad odor both among the public and the profession. It just looks pretty terrible when people are chasing victims without any respect for sort of the time, place and manner of the solicitations. And lawyers have even gone to hospitals and gotten referrals to patients from ambulance drivers. So hence the term ambulance chasers for lawyer who engage in this solicitation and the bar has rules against it.
What drives it however are practices by insurance companies that put pressure on accident victims to sign an immediate release for oftentimes very small amounts of money. And one of the reasons for the race to get people to sign on with lawyers is to relent them from giving away their claims and lawyers for insurance company — well insurance company employees who aren’t lawyers are subject to the same anti-solicitation prohibition. So if we want to get rid of the practice we should do a better job of policing insurance company solicitations in these situations.
Scott Cummings: I have a few messages to my students who are about to enter the profession and one is really that ethics matters because in most places clients and other lawyers are really just not going to want to work with you if you gain a reputation as someone who’s willing to cut ethical corners.
And so I want to stress to young lawyers entering the profession that lawyers do in fact gain professional capital credibility benefits over time by being the ones who stand up and do the right thing.
The other message that I often convey to my students is that good lawyers acting in the best of faith sometimes do bad things and this often happens because lawyers simply don’t know what the ethical boundaries are, yes, there are some lawyers that are really bad but most who break the rules are not actually nefarious they’re under pressure, they lack support or they’re just not familiar enough with the rules to do the right thing.
So I think when students are contemplating entering the profession, they often think okay this stuff doesn’t apply to me because I’m a good person, I’m not going to violate the rules. I think that’s wrong, good people do violate the rules and you have to pay attention, you have to have an analysis and you have to be grounded in what the ethical rules are in order to make sure that you don’t get caught in a bad situation.
The other thing I think I would say lastly to the folks that are just entering the profession is that we do have an amazing legal and political system but it’s very fragile. And I think we’ve seen that tested dramatically over the past few years and it’s based on respect for the rule of law and respect for each other and it depends on people respecting norms of civil discourse.
And I think all of this is imperil and so I really believe strongly that for those that are about to enter, they really need to think about what their public responsibilities are to defend and restore faith in our democratic system.
Deborah L. Rhode: Well I agree with everything Scott said. I often quote a famous British commentator G. K. Chesterton who said that “The problem with a lot of legal officials is not that they’re evil or even stupid, it’s just they’ve gotten used to it”. And I think a lot of the problems that we’ve been talking about certainly neglect or minor fee disputes or lack of access to legal services for poor people are things that a lot of lawyers come to think of is just the way the system is. And over time, they’re viewed as either not a problem or not my problem.
And I think one of the messages I try to give to people entering the profession is you have enormous opportunities to do good in this profession and with those opportunities come some obligations and those include thinking about the public impact of your own professional conduct but also collectively the bar’s professional conduct.
And if there are things that aren’t working well in the system, yeah time is short and I understand everyone’s capacities for outrage are limited but I think this is a profession where you really can feel some sense of responsibility to leave the legal landscape a little better in some way then you found it.
And I often say that students — sort of one of the things that applied ethics professors often say is if in doubt, think about the 60 minute test or the New York Times headlines test, how would this conduct look if it were publicly displayed and your mother was watching or reading about it, would you be comfortable with what you’re doing or what you’re not doing? And if the answer is there’s a little bit of discomfort, I try to encourage and enable them to think about ways of making the situation better.
Scott Cummings: I think the final thought that I guess I would like to leave the audience with is piggybacks quite nicely on I think where Deborah just left off which is that as we think about the future of legal ethics and lawyers’ responsibilities in our current society, we have to think hard about how lawyers are going to respond to what’s the central problem. I think one of the central problems facing our society which is inequality.
And we have to have lawyers be more mindful of the discrepancy between access to lawyer resources at the top and at the bottom. And I would like the listeners to think about the public responsibilities of lawyers to really ensure access to justice how we can collectively think about ensuring that low income people have greater access to resources to be able to afford lawyers, to be able to access lawyers in really critical life situations when they’re facing evictions and other incredibly traumatic events in a way that brings more balance in equipoise I think to a system that has gotten thrown out of whack.
Scott Cummings: Your listeners can reach out to me via email at [email protected] and that’s the best way to get me.
Deborah L. Rhode: Yeah its [email protected] and I would echo Scott’s point about access to justice. In our current circumstances about four-fifths of poor people don’t get legal services for oftentimes extremely critical legal needs and somewhere around a third of middle-class consumers are priced out of the system.
A couple of decades ago, President Jimmy Carter told the Los Angeles Bar Association that there was a problem in a system where 90% of lawyers were serving 10% of the public those who had deep pockets. And the situation hasn’t much improved. Our funding for legal aid organizations is shamefully low and we do a much worse job than many other developed countries in equalizing access to critical assistance.
So America likes to think of itself as a world leader and the role of law, which it is, but it’s really needs to do a much better job in making its legal system more accessible for those who need it most.
Well for our listeners, if you like what you heard today, please rate us in Apple podcast, Google podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.
I’m Craig Williams. Thanks for listening, you can join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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