Rules of Professional Conduct and the Lawyer’s Hats

Rules of Professional ConductThe Rules of Professional Conduct that become effective in 2010 underscore the reality that lawyers simultaneously wear three hats—that of:  advocate; officer of the court; and public citizen with special responsibilities.

Let’s look at the Preamble to the 2010 Rules of Professional Conduct.  I love the Preamble for its statements of inspiration and motivation rather than regulation.  It provides general guidance but no basis for discipline.  This is important to me and to the Commission because our work is focused on behavior above the standards set forth in the Code as a basis for discipline.  In the words of the rubric of the old Model Code of Professional Responsibility—which, if you are of a certain age, you may recall, had both Disciplinary Rules (DRs) and Ethical Considerations (ECs)—the Commission operates above the floor set by the DRs and works to inspire behavior striving toward the manifestation of the ideals of the ECs.

One of the key ways the revised Preamble supports the ideals of the old ECs is by new language more clearly articulating that a lawyer has three separate roles that s/he must fulfill simultaneously:  1) as a representative of a client; 2) as an officer of the legal system; and 3) as a public citizen having special responsibility for the quality of justice.  Let’s consider some of the new Rules in light of the hat-trick of roles a lawyer holds.

Representative of a Client

In terms of representing our clients, in addition to “advocating zealously” under the adversary system, the Preamble points out that a lawyer may be called upon to perform other functions during client representation, including to be an advisor of the client’s legal rights and obligations; to be a negotiator seeking a result advantageous to the client but consistent with requirements of honest dealings with others; and to be an evaluator in examining the client’s legal affairs and reporting about them to the client or to others.

Most people, including lawyers, focus on the zealous advocacy part and forget about the advising, evaluating, and problem-solving inherent in client representation.  Indeed, our clients may have formed their image of lawyers solely from T.V. shows such as Boston Legal and Shark; therefore, managing client expectations is increasingly important.  They may come in to your office with the belief that if they pay you, they get to tell you what to do.  But there are important limitations on the hired gun approach.  Here are some rules that may help you adjust your client’s attitude:

  • Rule 1.2, newly titled “Scope of Representation and Allocation of Authority between Client and Lawyer” includes the provisions that a lawyer can’t counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent 1.2(d) and that a lawyer may limit the scope of representation if reasonable and the client gives informed consent 1.2 (c);
  • A lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. Rule 1.4(a)(5).  Common areas where a client’s expectations may put a lawyer in conflict with his or her obligations under the Rules of Professional conduct include:
    -the lawyer’s duty of candor toward a tribunal (Rule 3.3) see below;
    -the lawyer’s duty to avoid means that have no substantive purpose other than to embarrass, delay, or burden a third person (Rule 4.4(a));
    -the lawyer’s duty to avoid conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(a)(c)) and to avoid conduct that is prejudicial to the administration of justice (Rule 8.4(d))
    -the lawyer’s duty to refrain from using or threatening to use criminal or disciplinary charges to gain an advantage in civil litigation (Rule 8.4(g))
  • A lawyer must not represent a client (must withdraw) if the representation will result in violation of the Rules of Professional Conduct or other law. Rule 1.16(a)(1).
  • A lawyer may withdraw if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement.  Rule 1.16(b)(4).
  • A lawyer cannot frivolously bring or defend a proceeding, assert or defend an issue (but may in a criminal case defend so to require every element of the case be established).  Rule 3.1.

Officer of the Legal System

When the Court granted us our law licenses, it also made us officers of the legal system or “officers of the court.”  Using the term “legal system” rather than “court” makes it clear that we owe duties to the system whether or not we are a trial lawyer and whether or not we are in court per se.  As officers of the legal system, we are called upon to aid the administration of justice, to improve the law and the legal profession and to exemplify the highest ideals of the legal profession.  This is the capacity through which the Commission on Professionalism seeks to engage lawyers in its mission to promote principles of civility, inclusion, and effectiveness in the legal and judicial systems.

Through new Supreme Court Rules, the Justices of the Court have further empowered lawyers and judges to make our legal and judicial systems the best they can be—for the good of our profession as well as the good of the public.

  • In 2007, the Court amended Rule 708, a bar admission rule, by adding explicit eligibility requirements necessary to receive a law license, including that an individual exercise good judgment and integrity and conduct oneself in a manner that engenders respect for the legal profession and for the law. [2]  Through this new rule, the Court gave additional guidance to the gatekeepers of our profession—the Committee on Character and Fitness—regarding whether an individual possesses the good moral character and fitness to be a lawyer in Illinois.
  • Reflecting the duty of an officer of the legal system to exhibit the highest standards of integrity even when not physically standing in the courtroom, Rule of Professional Conduct 3.3 will no longer be titled “Conduct Before a Tribunal” but, rather, “Candor Toward the Tribunal.”  As an officer of the legal system, lawyers have an obligation to preserve the integrity of the adjudicative process, even if the challenge to the integrity of the process occurs outside the courtroom, such as in a deposition.   The Rule requires a lawyer to take affirmative steps to ensure that a tribunal is not misled by false statements of law or fact, and the comments to this Rule are helpful to an understanding of the lawyer’s responsibilities as an officer of the court.
  • Lawyers sometimes discharge their roles as officers of the legal system by serving as third-party neutrals such as an arbitrator or mediator.  New Rule 2.4 provides that in those circumstances, the officer of the court should inform unrepresented parties that the lawyer is not representing them and shall explain to them the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.

Public Citizen with Special Responsibility for Justice

New language in the Preamble to the 2010 Rules discusses at some length the obligation of a lawyer, in his role as public citizen, to seek:  reform of the law; improvement in the quality of legal services and the administration of justice; and increased access to the legal system.  The Justices also describe a lawyer’s special responsibility to work to strengthen legal education and to further the public’s confidence in the rule of law and the justice system.

As in the prior version of the Preamble, there is discussion that lawyers have a responsibility to provide services in the public interest for which compensation may not be available, i.e. pro bono publico.  The Court also articulates its rationale for requiring disclosure, with our annual ARDC registration, of the approximate amount of our pro bono legal service and the approximate amount of qualified monetary contributions, i.e., “[t]o help monitor and quantify the extent of these activities and to encourage an increase in the delivery of legal services to persons of limited means.”  Preamble, Para [6A].

The 2008 figures, as reported by the ARDC, revealed that approximately 14,000 attorneys performed pro bono legal service of over 2 million hours and almost $15 million in monetary contributions were made.   Although these are impressive numbers, considering that the 2009 new admittance to the Bar brings our total number of attorneys to over 86,000, we, as a profession, could do much better to help many more people in many more ways.  Mindful of our special place in society, we should strive towards an ideal in which every lawyer is able to honestly report at least some pro bono contribution to using their skills and experience to provide uncompensated for service to others.

Personally, however, I am glad that our Court did not adopt a counterpart to ABA Model Rule 6.1 by recommending or requiring a certain number of hours and/or monetary contribution within the disciplinary rules.  My fear is that requiring certain standards in this regard would lead to grudging compliance rather than to conduct which is a manifestation of high ideals.  I am hopeful that through motivation and inspiration, as more attorneys experience the intrinsic personal and professional rewards of pro bono service, the numbers will increase.  Our goal at the Commission on Professionalism is to assist in this effort, including by providing on our website resources and opportunities for attorneys to make a difference by service to others.

The Court has adopted a new rule making it easier for attorneys to provide limited legal services to those who may not have the means to retain a lawyer.   In new Rule 6.5, the Court provides that the conflicts of interest rules do not apply (unless the lawyer knows of a conflict) when a lawyer provides short term limited service to a client in connection with nonprofit and court-annexed limited legal services programs.  Under such circumstances, neither the lawyer nor the client has an expectation of continuing representation, and the comments note that under such circumstances, the lawyer is not able to conduct a systematic conflicts check.

Conclusion

The 2010 Rules and Preamble provide a foundation for increased awareness of the three separate roles attorneys simultaneously must fulfill.  The Commission on Professionalism promotes behavior exemplifying the highest ideals of all three.  Please let us know how we can help.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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