National Organization of Bar Counsel

Frequently Asked Questions
What are "Legal Ethics?

Legal ethics are the ethics rules, codes or canons which govern the professional conduct of attorneys. They differ from jurisdiction to jurisdiction in the United States, but generally follow the Model Rules of Professional Conduct (RPCs) promulgated by the American Bar Association (ABA).

As of August 2001, these model rules are followed in whole or in part by 43 states. An excellent compilation of the rules from different jurisdictions may be found at both the LegalEthics.com and the Cornell Law School websites. Also, take a look at Annotated Links to Other Legal Ethics and Professional Responsibility pages maintained by the ABA Center for Professional Responsibility.

The American Bar Association is currently undertaking a reevaluation of its model rules as part of a project know as Ethics 2000.

What conduct is covered? 

A lawyer's professional conduct toward his clients, the court, opposing counsel, adverse parties, witnesses and other individuals with whom the lawyer may come into contact in the practice of law are all covered by the model rules. Additionally, private conduct which reflects adversely upon a lawyer's trustworthiness and ability to practice as a lawyer is also covered.

There are also separate rules governing Attorney Advertising, Multi-jurisdictional Practice (MJP), and Multi-disciplinary Practice (MDP):

Advertising Rules 
Lawyer advertising, solicitation and marketing are also governed by state-based ethics rules. The rules vary considerably from one jurisdiction to another. LINKS TO STATE ETHICS RULES GOVERNING LAWYER ADVERTISING, SOLICITATION AND MARKETING on the American Bar Association's website directs lawyers and marketers to the applicable information and rules for each state that has information available on the Internet

Multi-jurisdicitional Practice (MJP) Rules 
As a general proposition, lawyers must be licensed by each state and territory in the United States in which they wish to practice law. Only properly licensed attorneys may cross the "bar" which separates the public seating area in most courtrooms from the area in which parties to lawsuits and their lawyers sit.  BarReciprocity.com is a subscription-based website which contains information to assist lawyers in Multi-State practice, including individual states' plenary admission rules and temporary ones (pro hac vice rules).

Multi-disciplinary (MDP) Practice Rules 
As a general rule, lawyers are forbidden to share fees with non-lawyers, including other professionals, such as accountants, investment brokers, realtors, medical specialists and so forth. However, at least one state, New York, has enacted rules which permit lawyers to do so in limited circumstances. The American Bar Association decided against doing so in August 2000, but allowed that the issue may be revisited in the future.

What conduct is not covered?

In some jurisdictions (e.g., New Jersey) matters of simple negligence are not considered unethical conduct unless there is a pattern of such conduct. In these jurisdictions clients, of course, have recourse to bring a civil action to recover damages against their lawyer for negligent conduct on the lawyer's part that causes them to suffer an economic loss. For example, if a lawyer is retained by a client to bring a lawsuit but fails to do so before the time permitted to file the suit with the result that the suit is barred, then the client may bring a legal malpractice action against the lawyer. Although the negligent conduct may not be unethical, it may nonetheless constitute legal malpractice.

Who makes the rules? 

Although the recommendations of the American Bar Association carry great weight, it is actually the Courts and Legislatures of the individual state and federal jurisdictions that make the rules. In many states, the highest court of the state makes the rules as part of its rule-making authority. In still other states, the legislature enacts the rules by statute. Federal courts generally enact the rules as part of their Rules of Court. Military courts adopt the rules as regulations, as do many federal agencies.

Who determines if the rules have been broken? 

The Courts and Legislatures of the various jurisdictions by rule or statute generally create attorney disciplinary agencies to investigate and prosecute allegations made against lawyers for breach of legal ethics. In some states, the highest court may delegate the function to the state bar association.

Attorneys employed by these agencies are know variously as "ethics counsel", "disciplinary counsel", or "bar counsel". The agencies also rely upon volunteer attorneys and public members to sit on ethics committees to review the charges made against the accused lawyers. Attorneys employed by the agency or volunteer attorneys from the committees investigate the charges and prosecute them at a hearing if they are found to have merit. Other attorneys and public members appointed to the committees serve as fact finders -- in effect, jurors -- at the hearing. The decisions of these fact finders is then judicially reviewed by the highest court of the jurisdiction or by a judicial agency, often called a disciplinary review board, established for that purpose.

Depending upon the jurisdiction, there is judicial review available of the decision not to prosecute a matter, as well as the determination of the fact finders after a matter is prosecuted. The fact finders may recommend sanctions against the lawyer whom they have found to have committed unethical conduct, but it is the courts of the jurisdiction who ultimately decide the sanction to be imposed.

How do I file a charge of unethical conduct against a lawyer? 

Contact the Bar Counsel listed on this website in the applicable jurisdiction: State, Federal, Canadian or Australian.

Will the Disciplinary Agency reimburse money that a dishonest attorney stole from me? 

No. However, many jurisdictions have Client Protection Funds which provide reimbursement to clients who have lost money or property as a result of a lawyer's dishonest conduct in the practice of law. The Fund is a remedy for clients who cannot get reimbursement from the lawyer who caused the loss, or from insurance or other sources. The reimbursements are financed through a registration fee imposed upon licensed attorneys in the particular jurisdiction.

The American Bar Association website has a Directory of Lawyers' Funds for Client Protection for jurisdictions in the United States and Canada. Information is also available through the National Client Protection Organization, Inc.

What is Fee Arbitration? 

Where a client believes that a lawyer has charged more than a reasonable fee for work performed, the dispute may be resolved through court ordered arbitration. Several states have established Fee Arbitration Committees for this purpose. The idea is to afford the client a prompt, economical and fair manner to resolve a disputed fee.

The New Jersey Fee Arbitration system is a good example of a fee arbitration system that works. The client pays a nominal fee for the service. If a fee committee orders a lawyer to refund a portion of the fee to the client, the lawyer is required to make such payment within 30 days of receipt of the fee decision. If the lawyer fails to make such payment, the lawyer may be suspended from the practice of law until compliance is achieved. On the other hand if the fee committee determines that the client owes money to the lawyer and the client fails to pay within 30 days, the lawyer may enter the judgment in court. Neither side may re-litigate the matter.

If you have a fee dispute problem, contact the Bar Counsel listed on this web site in the applicable jurisdiction, State, Federal, Canadian or Australian, and ask if that jurisdiction has a fee arbitration system in place.

 

 
 
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