Legal Ethics

Legal ethics are defined as an ethical code governing the conduct of persons engaged in the practice of law and more generally in the legal sector including paralegals and private investigators.

In the United States, legal ethics are regulated by individual states and territories governments, who have a code of professional conduct for legal professionals. If a lawyer is found to be in breach of legal ethics he or she can face being disbarred. In general, federal law does not control legal ethics in America, although there is some debate over whether state ethical rules apply to federal prosecutors.

In June 2011, there were calls for the Supreme Court to reform legal ethics and introduce a mandatory Code of Conduct similar to one which governs all other federal jurists. The demands for a shake-up of the system of voluntary compliance, which critics believe is not sufficient enough to discourage ethical lapses, came in the wake of a report in the New York Times. It alleged that Supreme Court Justice Clarence Thomas had a relationship with Harlan Crow, a major conservative political donor and raised questions about the judge's mandatory financial disclosure forms. Nan Aron, President of Alliance for Justice, asked Congress to begin the process of ending the current system of voluntary compliance.

The American Bar Association, a private governing body, put in place the Model Rules of Professional Conduct for legal professionals working in the United States in 1983 and the ABA Model Judicial Code in 1990. The Association's Model Rules address many topics including client-lawyer relationship, duties of a lawyer as an advocate in proceedings and dealing with persons other than clients. The body also sets out legal ethics with regards to having respect for client confidences, candor toward the tribunal, truthfulness in statements to others and professional independence.

A fundamental principle of legal ethics, reflected in the ABA's guidelines, states: "A lawyer's own interests should not be permitted to have an adverse effect on representation of a client." More specifically, Rule 1.7(b) declares: "A lawyer shall not represent a client if the representation … may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless (1) the lawyer reasonably believes the representation will not be adversely affected and (2) the client consents after consultation."

As of 2007, 47 states had adopted a version of the Model Rules of Professional Conduct. The state of New York was an exception as it decided to follow a version of the ABA's older ethical model, the Model Code of Professional Responsibility. The states of California and Maine are the only two who have not adopted either versions and instead chose to write their own rules from scratch.

Following the Watergate era, law schools in the United States are also required to teach professional responsibility to students. This covers legal ethics, as well as general matters of professionalism.

According to the Association of American Law Schools directory, in 2007 the number of faculty at American law schools teaching legal ethics had increased six fold in 10 years.

Professor Stephen Gillers is the Emily Kempin Professor of Law at New York University Law School and a leading expert in this field. He sought to define legal ethics further when speaking at the 20th Anniversary of The Georgetown Journal of Legal Ethics in 2007. Prof Gillers claimed there were four components to the code:

1) Civility, simply how lawyers behave toward each other

2) The best exercise of discretion when lawyers are permitted to exercise discretion. Some rules allow lawyers to behave one way or another. They don't mandate conduct. Prof Gillers explained: "We cannot fault a lawyer for failing to do what ethics rules mandate, but where lawyers have discretion we might measure their ethics by how they exercise it."

3) The study of the rules that best reconcile duty to clients with duty to the justice system and third persons. Prof Gillers said that once the legal ethics on the matter were written, then lawyers should follow them to the letter and be faithful to their client's goals while allowing for their own autonomy as professionals.

4) Lastly, he added, there should be a focus on enforcement of legal ethics, so lawyers would feel compelled to honor their obligation to the rules in place governing their professional conduct.

Legal Ethics: Selected full-text books and articles

Legal Ethics and Legal Practice: Contemporary Issues By Stephen Parker; Charles Sampford Clarendon University Press, 1995
American Lawyers and Their Communities: Ethics in the Legal Profession By Thomas L. Shaffer; Mary M. Shaffer University of Notre Dame Press, 1991
The American Moralist: On Law, Ethics, and Government By George Anastaplo Ohio University Press, 1992
Conflicts of Law and Morality By Kent Greenawalt Oxford University Press, 1989
The Moral Criticism of Law By David A. J. Richards Dickenson Publishing, 1977
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