Attorney Misconduct

Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.

More than any other profession, the legal profession is self-governing. That is, it is largely regulated by lawyers and judges themselves rather than by the government or outside agencies. In particular, the AMERICAN BAR ASSOCIATION (ABA), the largest professional association for attorneys, governs the PRACTICE OF LAW through its establishment of rules of conduct. These rules are then adopted, sometimes in a modified form, by state courts and enforced by court-appointed disciplinary committees or bar associations. Attorneys found to be in violation of professional standards are guilty of misconduct and subject to disciplinary procedures. Disciplinary action by a state bar association or other authority may include private reprimands; public censure; suspension of the ability to practice law; and, most severe of all, disbarment—permanent denial of the ability to practice law in that jurisdiction. The state supreme court is the final arbiter in questions of professional conduct in most jurisdictions.

Since 1908, the ABA has been responsible for defining the standards of proper conduct for the legal profession. These standards, many of them established by the ABA Standing Committee on Ethics and Professional Responsibility, are continuously evolving as society and the practice of law change over time. In 1969, the ABA passed its Model Code of Professional Responsibility, guidelines for proper legal conduct that were eventually adopted by all jurisdictions. The ABA modified the code by adopting the Model Rules of Professional Conduct in 1983. The model rules have been used by 40 states to create official guidelines for professional conduct; 11 states or jurisdictions, including Washington, D.C., and the Virgin Islands, have continued to base their ethical codes on the earlier model code. California has developed its own rules of professional conduct. Whatever their basis, these codes or rules define the lawyer's proper role and relationship to the client. It is essential that lawyers understand the ethical codes under which they must operate. Failure to do so may result in not only disciplinary action by the relevant professional authorities but also MALPRACTICE suits against the lawyer. A malpractice suit may result in loss of money or the ability to work with specific clients.

Rule 8.4 of the Model Rules of Professional Conduct contains the following statements on attorney misconduct:

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, FRAUD, deceit or misrepresentation;

(d) Engage in conduct that is prejudicial to the administration of justice;

(e) State or imply an ability to influence improperly a government agency or official;

(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Besides issuing these general statements, the model rules set down many specific requirements for attorney conduct in different situations.

Because of an attorney's special relationship to the law, he or she is held to a special standard of conduct before the law, as the ABA asserts in its Lawyers' Manual on Professional Conduct:

As members of the bar and officers of the court, lawyers are beneficiaries of the privilege of the practice of law and also are subject to higher duties and responsibilities than are non-lawyers. A lawyer's fiduciary duties arise from his status as a member of the legal profession and are expressed, at least in part, by the applicable rules of professional conduct.

The word fiduciary in this quotation comes from the Latin word fiducia, meaning "trust"; as a fiduciary, then, the attorney acts as the trusted representative of the client. Trust is thus a defining element of the legal profession, and without it, the practice of law could not exist. For that reason, the legal profession has created strict rules of conduct regarding the attorney's relationship with the client.