I. INTRODUCTION 1
A. THE PURPOSE AND RELEVANCE OF LEGAL ETHICS
TO ALL LAWYERS IN THEIR DAILY PRACTICE 1
B. THE NATURE OF THIS LAW 3
C. THE SCOPE OF THIS PAPER 5
II. A RESEARCH STRATEGY 7
A. STRATEGY 1 8
B. STRATEGY 1A 9
C. STRATEGY 2 10
III. GAINING FAMILIARITY WITH THE SUBJECT MATTER 12
A. TREATISES AND HORNBOOKS 12
1. General Treatises 12
2. Treatises for Special Areas of Practice 15
B. LOOSELEAF SERVICES 17
1. ABA/ BNA Lawyers' Manual on Professional Conduct. 17
2. The Judicial Response to Lawyer Misconduct. . . . . . . . . 18
3. National Reporter on Legal Ethics and Professional Responsibility. 18
4. Looseleafs for Special Areas of Practice 20
5. Looseleafs for Specific Jurisdictions 21
C. OTHER BOOKS AND MONOGRAPHS 23
D. NON-LEGAL RESOURCES 26
E. LEGAL ENCYCLOPEDIAS 28
F. AMERICAN LAW REPORTS ANNOTATIONS 30
G. BIBLIOGRAPHIES 32
H. LEGAL PERIODICALS, JOURNALS AND LAW REVIEWS 33
I. NEWSLETTERS 36
J. RESTATEMENT 37
IV. AMERICAN BAR ASSOCIATION MATERIALS 38
A. ROLE AND ORGANIZATION 38
B. MODEL RULES OF PROFESSIONAL CONDUCT 39
C. MODEL CODE OF PROFESSIONAL RESPONSIBILITY 40
D. FORMAL AND INFORMAL ETHICS OPINIONS 41
E. OTHER RULES AND STANDARDS 42
F. OTHER MATERIAL 43
V. PRIMARY SOURCES 44
A. STATE CODES AND RULES 44
B. FEDERAL STANDARDS, RULES, AND REGULATIONS 46
C. COURT DECISIONS 47
D. SHEPARD'S 48
E. WESTLAW AND LEXIS 49
The purposes of this paper are 1) to reference and describe important resources in legal ethics and 2) to outline a research protocol that allows the practicing attorney to quickly understand the ethics of a particular legal situation and find relevant cases in his jurisdiction. This paper describes each major resource and relates the author's viewpoint on when to use many of them. After defining the ethical problem he faces, the first goal of the practicing attorney must be to quickly access relevant resources and cases and only then, if necessary, is it to explore in depth the ethical problems facing him.
The term "legal ethics" is ambiguous. It refers both to the system of self-regulation (the "bar") under which attorneys function as well as to applied moral philosophy. This paper focuses on the former definition while providing some guidance for the attorney interested in understanding his and his colleagues' orientation as to the latter.
Ethical considerations occur regularly in all areas of practice, including hiring decisions, law firm mergers, fee arrangements, advertising, solicitation of clients, handling client trust funds, client confidentiality, conflicts of interest, and withdrawal from representation. Every attorney's behavior is governed by his internal conscience, which consists of his ethics and his morals, and externally by admission to the bar, by disciplinary rules, by legal malpractice sanctions, by court contempt sanctions and fee awards, and by court imposed limits in such areas as antitrust and First Amendment (including advertising) rights.
The rapidly changing practice environment has multiplied the ethical problems attorneys face. Today, it is more important than in the past for attorneys to keep up with the ethical rules and considerations in their practice. The size of many firms is, in effect, limited by conflict of interest constraints; firms are conflicted out of a larger market share both geographically and with respect to specific legal specialties. The merger and acquisition of firms, and the movement of attorneys between firms and in and out of government, has increased the multiplicity of conflicts of interest. Firms dread the mistaken hiring of a "Typhoid Mary" partner that would infect the entire firm and prevent it from servicing ongoing litigation for major clients. Complex screening and isolation procedures for new-hires and "Chinese walls" are required.
Legal malpractice is migrating and finding new nests far from its traditional roost in personal injury law. Attorneys with a securities practice now assume responsibility under threat of malpractice for disclosing to the SEC false information contained in 10-K reports received from their clients. In bankruptcy, attorneys are criminally prosecuted where they have assisted their clients in filing false claims, in concealing, altering, or destroying records, or in fraudulently transferring property.
The United States Supreme Court has ruled that attorneys and the organized state and local bar associations are subject to the antitrust laws insofar as bar association ethical rules and codes impact legal fees, advertising, solicitation, and challenges to the "unauthorized practice of law" by real estate brokers, accountants, and others. Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.CT. 2004, 44 L.Ed.2d 572 (1975). In 1978 in response to criticism by the Department of Justice regarding antitrust problems created when lawyers agree to be bound by purportedly "ethical" restrictions on fees and advertising, the American Bar Association (ABA) conceded that the Code of Professional Responsibility was in fact only a Model Code. ABA Informal Op. 1420 (June 5, 1978). (1)
Attorneys have seen the toughening of behavioral controls, primarily through the courts as they enforce contract and tort laws, statutory and procedural provisions, and bar association rules. Yet bar discipline is, by the perception of almost all non-lawyers, inadequate and unduly protective of lawyers investments. Organizations such as HALT--An Organization of Americans for Legal Reform, Inc. (1319 F St., N.W., Ste. 300, Washington, D.C. 20004) and Public Citizen (P.O. Box 19404, Washington, D.C. 20036) are one sign of disenchantment with the current state of legal ethics and attorney self-regulation. But then the perception that lawyer self-discipline is inadequate is perhaps no different from the public's perception of the level of self-discipline of stock brokers and accountants.
The changing practice environment for attorneys has seen the numbers of cases dealing with legal ethics increase dramatically since the late 1970's. A reluctant recognition of this was the start of several looseleaf services in this area. The National Reporter on Legal Ethics and Professional Responsibility began in 1980, and the ABA/ BNA Lawyers' Manual on Professional Conduct began in January 1984.
Although the legal profession is purportedly self-governing through each jurisdiction's bar association, in fact, the courts rather than the bar associations themselves assume the great weight of governance. Bar associations are only one source of control for attorney behavior. The rules controlling attorney behavior are a mixture of constitutional law, contract law, tort law, procedure (e.g., attorney-client privilege), and ethical codes. The law dealing with legal ethics is primarily state case law as it has applied the legal rules promulgated by state and local bar associations, all of which are adopted from, and some extensively changed from either the older ABA Model Code of Professional Responsibility [hereinafter Model Code] or the newer ABA Model Rules of Professional Conduct [hereinafter Model Rules].
State courts have claimed power under their state constitutions to regulate the legal profession to the exclusion of the state executive and legislative branches. This includes admission to practice, the definition of the practice of law, discipline, dues, fees, and integration. Federal courts have had the ability to regulate attorneys practicing in front of them since the 1789 Federal Judiciary Act, but unlike the state courts, they have accepted congressional regulations of attorneys without separation of powers challenges. The courts have retained the ultimate responsibility for the ethical level of the practicing bar; yet, in reality the state courts passively approve or disapprove the rules promulgated by the state and local bar associations, which in turn look to the ABA as the source for the initial drafts of their rules. C. Wolfram, Modern Legal Ethics 20-51 (West Hornbooks Series Practitioners Edition 1986).
State courts in applying state bar association rules (or rules written by state bar associations that the have formally adopted) look to court opinions as well as the state bar association's ethical opinions. The ABA's rules are a persuasive source of "legislative history" regarding the interpretation of a state's laws. Cases from other states can also be persuasive authority. ABA formal and informal ethics opinions, ABA committee proceedings and publications,and ethics opinions from those of other state bar associations are rarely cited by courts. Wolfram, Modern Legal Ethics, 65-67, 673. See ABA Informal Op. 1420 (June 5, 1978).
Since the ABA's adoption in August 1983 of the Model Rules, thirty-four states and the District of Columbia have adopted part or all of them for attorneys practicing in those jurisdictions; however, thirteen states still retain the older Model Code. The changing practice environment has resulted in regulation of attorney behavior becoming more disparate and even inconsistent between jurisdictions, especially in the areas of revealing client confidences and in conflicts of interest.
Despite this growth and growth in inconsistency, the ABA's Model Code and Model Rules are, "less sophisticated than other parts of the black letter law. Enforcement is generally reserved for the most egregious violations, and consequently the body of case law in professional responsibility is small and the litigation is not very complex .... by comparison with, say, Federal Jurisdiction or Contract Law." John F. Sutton & J. S. Dzienkowski, Cases and Materials on the Professional Responsibility of Lawyers 21 (West 1989).
This paper is written for the busy practitioner. The scope of this paper is governed by its purposes: 1) to reference and to describe important resources and 2) to outline research strategies that allow the practicing attorney to quickly understand the ethics of a particular legal situation and to determine any relevant legal precedents in his jurisdiction.
Part II will describe research strategies for quickly finding relevant legal authority for any type of legal ethical problem.
Part III will describe the important secondary sources that allow the practicing attorney to become familiar with the legal principles and rule necessary in order to locate and evaluate the primary sources. These secondary sources include treatises, hornbooks, looseleaf services, monographs, legal encyclopedias, annotations, bibliographies, and law review articles.
Part IV will describe ABA materials, particularly the Model Rules and the Model Code, as the most important secondary authority for interpreting legal ethical rules.
Finally, Part V will describe the important primary source materials, including state bar association rules and court decisions.
To begin with, a practicing attorney's library should have the following reference works in addition to his own state bar association's ethical rules and opinions:
1) C. Wolfram, Modern Legal Ethics (1986),
2) T. Morgan & R. Rotunda, 1991 Selected Standards of Professional Responsibility [updated each year],
3) ABA/ BNA Lawyers' Manual on Professional Conduct,
and for those states using the Model Rules,
4) G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2d ed. 1990).
In the broadest manner, a research strategy proceeds from defining the problem and identifying the legal issues, to examining secondary authorities, to finally identifying primary authorities. In legal ethics, research problems and their strategies may be conceived of as falling into two broad types: the first type is for standard practical questions, such as: "Can I split fees in this case?" or "What is the largest contingency fee I can take?" And the second type is for more complex research in difficult, unsettled areas of legal ethics, especially where the case law is ambiguous, or meager. These areas include client confidentiality, conflicts of interest, advertising and solicitation, areas where there is a risk of malpractice exposure, and areas where further self-education and awareness are an objective of the research. The first type of research strategy has a variant where the attorney has a specialized practice dealing with a specific statute and administrative agency, e.g., tax, bankruptcy, or securities.
This strategy is designed for standard, practical issues.
SS Step 1: Think! This step always involves talking to another knowledgeable lawyer. Identify the problem in terms of legal issues and causes of action. Identify any key words or phrases. The other initial concern, jurisdiction, is virtually never an issue, as attorneys are governed by the law of the state in which they are licensed, even in federal courts, unless an attorney is licensed to practice in more than one jurisdiction. Conflicts of law may grow in the law of legal ethics as the inconsistency in rules between jurisdictions continues to grow.
Step 2: Consult the state bar association's rules and opinions. In New York City and a few other places, consult the local bar association's rules and opinions as well. This material should be readily available. (See Part V.)
Step 3: Consult the relevant court rules if there is litigation involved.
Step 4: Find cases from the bar association material, from another knowledgeable lawyer, from West Publishing Company's digests (consult the topic "Attorney and Client"), or from WESTLAW and LEXIS. Of course, Shepardize the cases, using the sate or regional Shepard's or Shepard's Professional and Judicial Conduct Citations for cases after November 1980.
Step 5: Consult the relevant American Bar Association (ABA) material, accessed through the ABA/ BNA Lawyers' Manual on Professional Conduct, Hazard & Hodes, The Law of Lawyering, or the ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography (R. Peterson & R. Wells eds. 1984). This step could be done after Step 2. Its purpose is to find the background of the state bar association's rule which in almost all cases comes from the Model Code or Model Rules.
This variant is for those attorneys working in specific statutory based practices, where statutory interpretation and administrative regulations are important. The law of legal ethics is generally case law; however, administrative agency regulations, specially in the federal government, impact it. Strategy 1 should be incorporated into the search.
Step 1: Think! This is always the first step. Define the problem and its legal issues.
Step 2: Consult the state bar association's rules and opinions, even if one is practicing in a federal court, because federal courts look to the rules of the state under which the attorney is licensed. (This may present interesting complexities in diversity cases.)
Step 3: Consult the relevant federal court's rules, if litigation is involved.
Step 4: Consult a treatise in a specialized area where there is one, for example in federal taxation consult B. Wolfman & J. Holden, Ethical Problems in Federal Tax Practice (Michie 2d ed. 1985).
Step 5: Consult the Ethics in Government Reporter (Washington Service Bureau).
Step 6: Locate any agency decisions and relevant cases.
Step 7: Consult any ABA material.
This strategy is for research into complex, unsettled areas of the law, where there are conflicts of interest, client confidentiality, advertising or solicitation, where there is a risk of malpractice exposure, or where further self-education and awareness are an objective of the research.
Step 1: Think! Define the problem and its legal issues.
Step 2: Consult the state bar association's rules and opinions as well as the analogous ABA material to get a fuller understanding of the rationale behind the rule.
Step 3: Consult treatises such as C. W. Wolfram, Modern Legal Ethics (West Hornbook Series Practitioner's Edition, 1986).
Step 4: Consult looseleaf sources to see how the major case law has interpreted this area and to evaluate any editorial comments.
Step 5: Consult secondary sources that focus upon the unsettled area, such as monographs, law review articles, and even unpublished material available through the ABA's Center for Professional Responsibility.
Step 6: Consult non-legal resources for a better understanding of the underlying constructs of ethical precepts, and for the relationship between legal ethics, morals, conscience,and "ordinary ethics."
Step 7: Find cases through the usual sources. In addition, because this problem involves an unsettled area of the law, consult American Law Reports for annotations. For this research strategy it will be more important than usual to Shepardize the cases.
Among secondary sources, the practicing attorney should consult treatises and hornbooks first along with the ABA/ BNA Lawyers' Manual on Professional Conduct in order to get an overview of the law in a particular area of legal ethics and in order to access relevant primary and secondary authority.
Treatises and hornbooks provide complete scholarly coverage of the area of legal ethics, providing the practicing attorney with a gestalt for further research. The primary advantage of the treatise is that it is the distillation and evaluation of all relevant sources by one or several authors. This advantage is also the source of its primary weakness: the treatise can be bound by the author(s) views, prejudices, and preferences. In general they are a quick entry into primary and secondary authority. They are also a good source of arguments as to why the law should be changed.
Use the card catalogue to locate treatises. The Library of Congress Subject Heading "legal ethics" will contain most of these.
1. General Treatises
a. C. W. Wolfram, Modern Legal Ethics (West Hornbook Series Practitioner's Edition, 1986).
This is the best single treatise in the area of legal ethics. Rotunda, Book Review, 136 U.Pa.L.Rev. 1761, 1775 (1988). It is thorough, detailed, and precise. It is very detailed with extensive footnotes to cases, codes, and rules. There is a detailed index, the full text of the Model Code and the Model Rules as well as the ABA Code of Judicial Conduct. The inclusion of material on judges is helpful. This material is often overlooked by practicing attorneys, although attorneys need to know when judges need to disqualify themselves, when judges are immune from suit, and when judges can accept gifts from attorneys. Overall, this treatise compares favorably to the ABA/ BNA Lawyers' Manual on Professional Conduct as a place to begin one's research. Its main comparative disadvantage is that it is not quite as up to date. But its 1986 publication date still makes it very useful.
b. G. Hazard and W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (Prentice Hall Law and Business, 2d ed. 1990).
This is the second best treatise from the point of view of the practitioner. It is not comprehensive, but it is first rate. As its title states, it is a treatise on the Model Rules, and is of use to lawyers in those states with the Model Rules. Its citations to cases are much more limited than in Wolfram's treatise. Professor Hazard was involved in the drafting of the Model Rules and is preeminently qualified to talk about them, often from his own point of view. This treatise is updated annually with looseleaf sections. See Pirsig, Book Review, 7 N.Ill.U.L.Rev. 133 (1987). The first volume of the two-volume looseleaf treatise is an analysis by rule organized under the lawyer's different roles as client advisor, as counselor, as advocate, and with respect to third parties. The second volume contains the text of both the Model Rules and the Model Code as well as state variations on the Model Rules (this section in particular is very useful). A table of cases and an index complete the work. It has been updated each year since 1985.
c. R. Rotunda, Professional Responsibility (West Black Letter Series, 3d ed. 1992).
This is a very basic outline of the major points of the rules governing legal ethics. Major cases are cited. Its main purpose to a relatively new practitioner would be in providing a quick gestalt of a large area of concern. It is written by a leading expert and should not be ignored. Its outline form makes it very accessible.
d. R. Mallen and Jeffrey M. Smith, Legal Malpractice (West, 3d ed. 1989 & Supp. 1991).
This is the best single treatise on the subject of legal malpractice. While legal malpractice is strictly speaking a different topic from that of legal ethics, this work is of obvious relevance. Legal malpractice is what can happen when an attorney behaves unethically (or at least when his or her client believes that the attorney did). Amazingly, this 1989 edition already has thick 1991 pocket parts for each of its two volumes. This work is in two volumes solely for ease of handling. The first volume discusses the theories upon which legal malpractice is based with as well as damages. The second volume discusses malpractice within substantive practice areas and litigation strategies. There are detailed listings of cases by jurisdiction. Volume two also contains a very detailed bibliography, tables of statutes and rules, table of cases, and an index. In addition, volume two contains a detailed listing in one section of both decisions and articles by jurisdiction. This aid is unusual but very helpful because each attorney will be generally consulting cases within his or her jurisdiction first. See Book Note, 45 Bench & Bar of Minnesota 10 (July 1988).
2. Treatises for Special Areas of Practice
Treatises exist for the following special areas of practice:
a. Criminal Law
(1) John W. Hall, Professional Responsibility of the Criminal Lawyer (Lawyers Coop, 1987).
This treatise contains many citations to articles, books, and cases in this area of legal ethics. Because it is published by Lawyers Co-operative Publishing Co., there are many references to Am.Jur.2d and to A.L.R. annotations. In addition to the usual appendixes containing the Model Code and the Model Rules, there is an additional appendix containing the U.S. Department of Justice's Principles of Federal Prosecution (1980). These principles are the Department's guidelines for the exercise of prosecutorial discretion.
(2) J.M. Burkhoff, Criminal Defense Ethics: Law and Liability (2d ed. 1991).
This is a looseleaf treatise. Its advantage over Hall's treatise is its more recent updating; its disadvantage compared with Hall's treatise is that it is not part of either the West or the Lawyer's Co-operative Publishing Co. system and contains no references to West Publishing Co. key-numbers or to A.L.R. Annotations. It is oriented more toward the criminal defense attorney than is Hall's treatise. This is shown in part by its inclusion of the Roscoe Pound-American Trial Lawyer Foundation's American Lawyer's Code of Conduct, written out of dissatisfaction with both the Model Code and the Model Rules. Unlike Hall's treatise, it also includes the ABA Standards Relating to the Administration of Criminal Justice.
b. Securities Transactions: Jeffrey M. Smith, Preventing Legal Malpractice (West 1981).
Despite its title, the focus of this work is on preventing legal malpractice claims and litigation in securities transactions under the Securities Act of 1933, 15 U.S.C. § 77a et seq.. The need for a work in this specific area grew after the Supreme Court's decision in SEC v. National Student Marketing Corp., 457 F. Supp. 682 (1978). This treatise "represents the first comprehensive written approach to preventing errors in securities transactions." H. Clark, Book Review, 17 Trial 20 (Sept. 1981). It is very thorough in its treatment of conflicts of interest in securities practice. The first two chapters that are more general in nature would be useful to most practicing attorneys.
c. Federal Taxation: B. Wolfman & J. Holden, Ethical Problems in Federal Tax Practice (Michie 2d ed. 1985).
Although slightly outdated now, this treatise is the most thorough in its area of legal ethics. It is not without fault, mostly because the ethics of tax practice are still in flux, particularly because the law of self-interest (loyalty to the client) must be balanced with ethical duties to the tribunal and to the federal government. L. Patterson, Tax Shelters for the Client--Ethics Shelters for the Lawyer (Book Review) 61 Texas L. Rev. 1163 (1984). Internal Revenue Code sections, Treasury regulations, and United States Tax Court Rules of Practice and Procedure rules relative to the ethical conduct of tax lawyers are in appendices.
Looseleafs are the second type of research tool for attorneys to examine early in their research. The distinction between looseleaf services and treatises can be a fine line. In general, looseleaf services cite more primary authority and are updated more frequently (weekly, biweekly, or monthly) than treatises in looseleaf format. The looseleaf services described below contain court decisions, ABA and state bar association codes, rules, and ethical opinions, case digests, editorial annotations, and recent news updates in the field of legal ethics. These looseleafs combine primary and secondary authority from all jurisdictions in a single place for research and ready access.
1. ABA/ BNA Lawyers' Manual on Professional Conduct.
The American Bar Association and the Bureau of National Affairs jointly publish this best all-around looseleaf for legal ethics. It consists of a "Manual" volume that is self-contained and covers the entire subject area. This looseleaf service is a good place for the practicing attorney to begin looking at secondary material. The Manual volume includes the text of the older Model Code and the newer Model Rules. (Thirty-four states and the District of Columbia now have enacted the Model Rules in one form or another.) The Manual volume is organized by subject matter areas that a practicing attorney would use rather than by the Ethical Canons numbers of the older Model Code, as is the looseleaf service discussed below. Subject matter divisions include qualifications of admission to practice, lawyer-client relationship, client funds and property, conflict of interest, confidentiality, advertising, solicitation, malpractice, and others. In addition, the manual contains in digested from all the Formal and Informal Ethics Opinions of the ABA since 1985. There are two easy to use subject indexes, one for the practice areas and one for the Ethics opinions.
Separate volumes contain Ethics Opinions from 1980-1985. It is not clear from the index to this volume when Ethics Opinions have been superseded. One can use the ABA's publication Formal and Informal Ethics Opinions (1975) to determine the currency of ethics opinions (see Part IV). Several other binders contain the biweekly current reports since the looseleaf service started in January 1984.
The Manual binder makes this looseleaf service the first one to consult for both an overview and to learn what your state and other states have done with a rule or ethical canon. Also its organization by subject matter allows quick access to the relevant rules or ethical canons and court decisions. The index is very detailed.
2. The Judicial Response to Lawyer Misconduct (ABA Center for Professional Responsibility, 1984).
This notebook style looseleaf is a useful supplement to the ABA/ BNA Manual and digests more fully cases in this particular area of the law. Its main problem today is that it is slightly out of date.
3. National Reporter on Legal Ethics and Professional Responsibility (University Publications of America, 1980-).
This looseleaf is harder to access but provides the full texts of ABA and state ethical opinions. This was the first looseleaf service to cover legal ethics and professional responsibility. It is organized into five volumes, with volume #2 having been replaced by annual one or two volume binders containing the full text of ethics opinions. Volume #1 contains the Model Code, the Model Rules, and Formal and Informal Opinions. Volume #3 contains state and local bar association opinions. Volume #4 contains court cases from all jurisdictions. And volume #5 contains scholarly papers, current literature summaries, book reviews, and an index. This service is updated monthly. The full texts cover many but not all opinions issued or current since 1981.
Unfortunately, the organization is not as readily accessible as the ABA/ BNA Manual on Professional Conduct. The different sources of opinion are kept separate (state bar associations, ABA, and courts). Furthermore, the index follows the format of the Model Code and is organized by its rule numbers. Although the Ethical Canons are more closely aligned with subject matter than the Model Rules, this organization is not intuitive. A familiarity with the different Ethical Canons in the Model Code is necessary. The format (8 1/2" by 11" paper) is cumbersome compared with the ABA/ BNA Manual on Professional Conduct. There is no indexing among cases between years in the annual textual supplements.
Still, this looseleaf service does have several advantages over the ABA/ BNA Manual on Professional Conduct. The first volume contains much more on the "legislative" history of the Model Code and the Model Rules. Complete texts rather than the digests of opinions are provided in one easy spot.
A good research strategy would be to first consult the ABA/ BNA Manual on Professional Conduct in order to locate the ethics opinions and court decisions relevant to your problem. One then could consult this looseleaf service in order to find most of the texts of the important opinions and cases in one spot, particularly if one is researching many jurisdictions.
4. Looseleafs for Special Areas of Practice
a. Federal Government: The Ethics in Government Reporter (Washington Service Bureau 1980-).
This publication contains executive orders, statutes, regulations, advisory opinions, summaries of Congressional hearings, and an annotated bibliography of articles about ethical conduct for lawyers and other employees of the executive branch covered under the Ethics in Government Act, 2 U.S.C.A. §§ 701 et seq. It covers in detail financial disclosures, honoraria, gifts and gratuities, outside financial income, public financial disclosure, conflicts of interest, and post-employment constraints. There are separate indices for statutes and regulations, for cases, and for Advisory Opinions and Informal Advisory Opinions of the Office of Government Ethics (OGE). There is also a directory of federal ethics officers. There is a newsletter section which contains recent developments and the Office of Government Ethics publication Ethics Newsgram. This looseleaf may need to be consulted where a specialized federal practice is involved, e.g., tax, bankruptcy, or federal contracts. For example, the 1988 OGE Informal Advisory Op. 88-14 Disqualification of Counsel is also relevant to lawyers dealing with federal lawyers.
b. Medical Malpractice and Medical-Legal Issues
(1) Practical Issues of Professional Responsibility in the Practice of Law (1984-).
Updated annually. The title is misleadingly general. The focus of this reporter is on medical malpractice.
(2) Reporter on the Legal Profession (1979-).
Updated quarterly. Again, despite its title, its focus is on medical malpractice.
c. Lawyers' Professional Liability Update (ABA 1989).
This contains a detailed bibliography by area of practice.
5. Looseleafs for Specific Jurisdictions
According to the 1991 edition of Legal Looseleafs in Print (Arlene Eis, ed., Infosources Publishing) fifteen states, the District of Columbia, and New York City have looseleafs devoted to ethical decisions affecting lawyers in those jurisdictions.
a. California: California Compendium on Professional Responsibility (P. Vapnek ed. 1983-) and Handbook on California Lawyer Discipline (State Bar of Cal.).
b. Colorado: Colorado Ethics Opinions Handbook (Colo. Bar Ethics Comm. 2d ed. 1983 & Supp. 1989).
c. Connecticut: Sixth Annual Review of Professional Ethics (Conn. Bar Professional Ethics Comm. 1990).
d. District of Columbia: D.C. Rules of Professional Responsibility (D.C. Bar 1991).
e. Florida: Professional Ethics of the Florida Bar (Fla. Bar 2d ed. 1987 & Supp. 1989).
f. Maine: Maine Manual on Professional Responsibility (Bd. of Overseers of the Bar 1986 & Supp. 1989).
g. Michigan: Michigan Rules of Professional Conduct and Disciplinary Procedure (L. Dubin & M. Schwartz eds. 1989 & Supp. 1991).
h. Missouri: Missouri Advisory Committee Opinions (Mo. Bar 1985-).
i. New Hampshire: Practical Ethics (N.H. Bar 1990).
j. New Jersey: Professional Responsibility in New Jersey (N.J. Inst. for Continuing Legal Educ. 1990).
k. New York City: Opinions of the Committee on Professional Ethics (E. Wypyski ed. 1980 & Supp. 1990).
l. New York State: Opinions of the Committee on Professional Ethics (New York State Bar Assn. 1989).
m. Oklahoma: Legal Ethics--Procedure and Case Update (Okla. Bar Inst. for Continuing Legal Educ. 1990).
n. Oregon: The Oregon State Bar Desk Reference--A Guide to the Regulatory Programs of the Oregon State Bar (George A. Reisner, ed. 1990).
0. South Carolina: Handbook on Legal Ethics for South Carolina Lawyers (H. Haynsworth ed. 1986 & Supp. 1988).
p. Texas: Texas Lawyers' Professional Ethics (Young Lawyers' Assn. Comm. on Professional Ethics 2d ed. 1986).
q. Wisconsin: Ethics & Professional Responsibility: A Handbook for Wisconsin Lawyers (K. Kaap ed. 1985 & Supp. 1988).
For those states not having looseleafs per se, state bar association rules and opinions are published usually in each state bar's journal or sometimes by that state's supreme court, as separate casebound books and as individual circulars. These materials can be found in ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography 273-281 (R. Peterson & R. Wells, eds. 1984). They can also be found by calling each state's bar association or by consulting, under the topic "Legal Profession and Professional Responsibility," F. Doyle, Searching the Law: The States--A Selective Bibliography of State Practice Materials in the 50 States (1989 & Supp. 1990). State bar associations and the larger local bar associations are also listed in The Lawyer's Almanac 1990: A Complete Reference to Vital Facts & Figures About the Legal Profession 595-618 (10th ed.).
1. L. Gilbert & G. Zadorozny, Serving Two Masters: The Law of Lawyer Disqualification (ABA Section of General Practice, 1984).
2. H. Haynsworth, Marketing and Legal Ethics: The Rules and the Risks (ABA Section of Law Practice Mgmt. 2d ed. 1990). This monograph covers restrictions on advertising, limits to telephone and in-person solicitation, appropriate direct mail, risks from affiliations between law firms, and other topics.
3. G. Hazard & D. Rhodes, eds., The Legal Profession: Responsibility and Regulation (1985). This is a thoughtful collection of secondary material organized along an attorney's roles and responsibilities.
4. L. Patterson, Legal Ethics: The Law of Professional Responsibility (Matthew Bender, 1982).
This is a practitioner's oriented casebook in Matthew Bender's "Analysis and Skills Series." Professor Patterson is one of the important authorities in the field of legal ethics.
5. Jeffrey M. Smith, Preventing Legal Malpractice (West 1981).
This monograph focuses upon two areas: 1) work control, including conflict of interest systems and calendar control systems (analyzed with complex flow charts and suggested forms) and 2) preventing errors in securities transactions.
6. Conflicts of Interest
a. Restatement of the Law, the Law Governing Lawyers (tentative draft no. 3, April 10, 1990).
Chapter Eight covers conflicts of interest. The entire Restatement covers the duty of confidentiality and the duty to avoid conflicts of interest, two of the most difficult and unsettled areas in legal ethics. C. Wolfram is the Reporter for this Restatement. The Restatement analyzes the ABA's Model Code and Model Rules as well as case law and scholarship in these two areas. (G. Hazard, another leading legal ethics authority, is the current Director of the American Law Institute.)
b. R. Alexander-Smith, Conflict of Interest: Multiple Representation (ABA 1983).
This monograph covers conflicts in representing insurer and insured, criminal co-defendants, corporate clients, married couples, and multiple parties outside of litigation. Ms. Alexander-Smith was then Ethics Counsel at the ABA Center for Professional Responsibility.
c. L. Raifman & J. Hinlicky, Ethical Issues in Dual Professional Practice: The Impact of the Code of Professional Responsibility (ABA 1982).
This monograph discusses the serious limitations on a professional to practice simultaneously two professions (e.g., law and clinical psychology) because of ABA restriction upon advertising and solicitation.
d. S. FitzGibbon, Professional Ethics, Organizing Corporations, and the Ideology of Corporate Articles and By-Laws (ABA 1982).
This monograph discusses the conflicts of interest an attorney faces in drafting incorporation papers, articles, and by-laws for a corporation.
e. N. Wolfson, Conflicts of Interest: Investment Banking (Report to the Twentieth Century Fund Steering Committee on Conflicts of Interest in the Securities Markets) (1976). This monograph covers conflicts of interest between stockholders, managers, directors, the public, and the corporation issuing stock or publishing reports. Specific types of businesses covered include commercial bank trust departments, brokers, corporate pension funds, investment bankers, and real estate investment trusts (REIT's).
Under the Library of Congress subject headings "Professional Ethics," "Professional Responsibility," and "Business Ethics" there are useful non-legal texts on ethics and professional responsibility. Professional ethics is now a growing sub-field for ethical philosophers and scholars. The proper Library of Congress call numbers all began with the letter heading "BJ."
Books that address the ethics behind the rules by which attorneys practice are important for practitioners to fully understand these rules. Too often, these rules are applied in a literal "cookbook" fashion, without proper consideration of there real intent. A deeper understanding of legal rules is critical in areas in which the Model Rules and the Model Code, for example, are ambiguous and fuzzy; examples such as, 1) an attorney's duty to report a client's future violent criminal activity, 2) an in-house corporate attorney's need to sort out the varying duties toward the corporation as a abstract entity, toward its stockholders, toward its board of directors, and toward its management that hired him, and 3) a criminal defense attorney's duty, springing from Constitutional requirements, to knowingly allow his client to commit perjury, where perjury may function as his client's sole practical defense.
The following books on ethics are "practically" oriented around legal problems or develop fundamental ways of thinking about practical legal problems, rather than abstractly, philosophically or religiously oriented. They are in the order of my opinion of their usefulness.
1. W. SADURSKI, Moral Pluralism and Legal Neutrality, (Boston: Kluwer Academic Publishers, 1990).
His text is volume nine in the publishers "Law and Philoso-phy Library." His book focuses upon judicial responses to moral pluralism, liberal neutrality, the protection of minorities, and the neutrality of the law toward religion in Australia, Great Britain, and America. It analyses a number of important cases in detail and draws out their ethical reasoning (or lack thereof).
2. J.J. THOMSON, The Realm of Right, (1990).
Ms. Thomson's book analyses the ethical bases for different types of right, such as claims, privileges, powers, duties, liberties, and promises. It is a detailed, fundamental yet practical analysis of how attorneys consciously and unconsciously use ethics in resolving issues.
3. B.M. LEISER, Liberty, Justice, and Morals: Contemporary Value Conflicts (1979).
This book is a series of topical discussions of ethics as they apply to important areas of dispute in the law. These areas include homosexuality, abortion, contraception, freedom of the press, obscenity, criminal punishment, the death penalty, fraud and business ethics, affirmative action, civil disobedience, and terrorism. There is a long bibliography organized by topic at the end of the book. For any attorney working in these areas, this book would be an important place to begin ones considerations of how to frame arguments in ethical terms and to understand the ethical assumption (conscious and not) behind legal rules in these areas.
4. G.D. SNELL, Search for a Rational Ethic (1988).
This book is a solid, general, practical overview of the origin of ethical precepts and how they are changing as the result of scientific and technological progress. This book has a practical focus. It discusses waste in our society, misused wealth, and security sought through power or privilege. In the latter there is a detailed discussion of unions, race relations, legal practice, and the Mafia.
5. Moral Expertise: Studies in Practical and Professional Ethics (D. MacNiven, ed. 1990).
This book is a collection of practically-focused essays on ethics. Chapter six concentrates upon the Canadian Bar Association's Code of Professional Conduct (1974).
6. Additional scholarly material can be found in the quarterly periodical Ethics: An International Journal of Social, Political, and Legal Philosophy (University of Chicago Press).
The third and final place for the practicing attorney to begin his secondary research is in one of the two major legal encyclopedias or the legal encyclopedia for his jurisdiction. Encyclopedias are clearly the third choice after treatises and looseleafs, because of the danger of over-generalization. In general, more footnotes are found in the encyclopedias than in the treatises and looseleafs. Their primary use is as case finding tools.
1. American Jurisprudence 2d (Am. Jur. 2d).
This encyclopedia is published by the Lawyers Co-operative Publishing Co./ Bancroft-Whitney Co. It is more current than C.J.S. (below) and is more selective in its choice of cases. The multi-volume index is very detailed. The major discussion of legal ethics is found in volume 7 under "Attorneys at Law" §§ 25 et seq. This particular volume was last published in 1980; however, there is an annual (now quite thick) pocket part, dated April 1990. This author prefers Am. Jur. 2d because of its more current nature, because of its mild selectivity of cases (there are still plenty to choose from), and because of references to A.L.R. Annotations (see below).
2. Corpus Juris Secundum (C.J.S.).
This encyclopedia is published by the West Publishing Co. and is the other major legal encyclopedia. It is less current than Am. Jur. 2d but purports to be comprehensive on all cases under each topic. (From the author's point of view, this means there is much chaff to separate through.) The five-volume index indicates that the major topic for legal ethics is "Attorney and Client" in volumes 7 and 7A. These volumes also have a 1980 publication date (the same year as the corresponding Am. Jur. 2d volume. The major advantage of C.J.S. are its references to the West key-numbers used in all its state digests.
3. State encyclopedias
The preferred encyclopedias for research into legal ethics are those for specific states, because legal ethics is primarily governed by court application of state bar association rules. Fifteen states are covered with Michigan being unusual in having two state encyclopedias: California, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, and West Virginia.
American Law Reports (A.L.R.) Annotations are published by the Lawyers Co-operative Publishing Co./ Bancroft-Whitney Co. If an attorney can find an annotation on his specific problem, almost all of his case finding work is done. However, because the annotations are specific and relate to areas of the case law that are unsettled, this publication is not the first place to go to. It should be reserved for the end of the practicing attorney's secondary source investigation. Unlike most law reviews, it is oriented toward the practicing attorney. There is a five volume index covering the entire A.L.R. series. Annotations can also be found through the Index to Annotations usually under the topics "Ethics and Ethical Matters" and "Discipline and Disciplinary Matters." Annotations in A.L.R. 3d, A.L.R. 4th, and A.L.R. Fed. are kept up to date with annual pocket parts. A.L.R. 2d is kept up to date with the Later Case Service volumes or the A.L.R. Blue Book of Supplemental Decisions. Annotation history tables are in the Index to Annotations.
Selected annotations of general interest in legal ethics include:
1. Advertising as Ground for Disciplining Attorney, 30 A.L.R. 4th 742.
2. Assumed or Tradename, Use by Attorney as Ground for Disciplinary Action, 26 A.L.R. 4th 1083.
3. Attorney and Client: Conflict of Interest in Real Estate Closing Situations, 68 A.L.R. 3d 967 (1976).
4. Commingling of Client's Funds by Attorney with his own as Ground for Disciplinary Action--Modern Status, 94 A.L.R. 3d 846 (1979).
5. Conflict of Interests, Circumstances Giving Rise to Prejudicial Conflict of Interest Between Criminal Defendant and Defense Counsel, 18 A.L.R. 4th 360 (1982).
6. Disciplinary Action Against Attorney or Accountant for Misconduct Related to Preparation of Tax Returns for Others, 81 A.L.R. 3d 1140 (1977).
7. Disbarment or Suspension of Attorney in One State as Affecting Right to Continue Practice in Another State, 81 A.L.R. 3d 1281 (1977).
8. Disqualification of Attorney Because Member of his Firm is or Ought to be Witness in Case--Modern Cases, 5 A.L.R. 4th 574 (1981).
9. Liability of Professional Corporation or Association for Practice of Law for Torts of Individual Member, 76 A.L.R. 3d 1020 (1977).
10. Lie Detector Test Results, or Offer or Refusal to Take Test, Admissability in Attorney Disciplinary Proceeding, 79 A.L.R. 4th 576 (1990).
11. Miscitation, Imposition of Sanctions upon Attorneys or Parties for Miscitation or MIsrepresentation of Authorities, 63 A.L.R. 4th 1199 (1988).
12. Nature of Legal Services or Law Related Services which may be Performed for Others by Disbarred or Suspended Attorney, 87 A.L.R. 3d (1978).
13. Privileged Communications, Testimony Before or Communications to Private Professional Society's Judicial Commission, Ethics Committee, or the Like, as Privileged, 9 A.L.R. 4th 807 (1981).
14. Propriety of Attorney who has Represented Corporation Acting for Corporation in Controversy with Officer, Director or Stockholder, 1 A.L.R. 4th 1124 (1980).
15. Restricting Access to Records of Disciplinary Proceedings Against Attorneys, 83 A.L.R. 3d (1978).
16. Solicitation: Modern Status of Law Regarding Solicitation of Business by or for Attorney, 5 A.L.R. 4th 866 (1981).
A.L.R. annotations before 1984, listed by the date of publication, can also be found in ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography 273-281 (R. Peterson & R. Wells, eds. 1984).
Bibliographies are always a place to go if the attorney wishes to find additional secondary sources. Unfortunately, the only two compiled national bibliographies on legal ethics are slightly out of date, both having been published in 1984. For articles, monographs, and treatises after these dates, the practicing attorney must make individual searches or contact the ABA's Center for Professional Responsibility.
1. ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography (R. Peterson & R. Wells eds. 1984).
This is a very complete unannotated bibliography of published and unpublished material for the years 1979-1983, with selected earlier material, organized under a very detailed subject classification. The editors have compiled selected case law, briefs, annotations, law review articles, books, pamphlets, conference material, and unpublished papers. Unpublished material listed in this bibliography, as well as anything published after 1984, is available from the Center for Professional Responsibility by mail or fax, 750 N. Lake Shore Dr., Chicago, IL 60611; 312-988-5293.
2. Legal Ethics: An Annotated Bibliography and Resource Guide (F. Elliston & J. van Schaick eds. 1984).
Each entry in this annotated bibliography contains a detailed description of the source with in some cases an evaluation. This bibliography is designed for teachers of professional responsibility courses to be able to evaluate sources for their teaching and, presumably, research.
These sources contain critical, narrow articles with voluminous footnotes citing primary and secondary authority.
1. Specific Periodicals, Journals, and Law Reviews
These are the only periodicals, journals, and law reviews to regularly publish articles on legal ethics:
a. ABA Journal. The American Bar Association publishes this journal monthly.
b. The Georgetown Journal of Legal Ethics (since summer 1987). This is the only scholarly journal devoted exclusively to legal ethics and professional responsibility. Quarterly.
c. Criminal Law: Criminal Justice Ethics (Institute for Criminal Justice Ethics of the John Jay College of Criminal Justice, City University of New York 1982-). Semi-annually.
d. Professional Liability Reporter. Covers law and business, healthcare, and insurance. Monthly.
e. Ethics (University of Chicago Press). This is a scholarly journal for the entire field of ethics. Quarterly.
2. Access to Specific Articles
a. Legal Resource Index
A CD-ROM (Compact Disc--Read Only Memory) version of the entire Current Law Index is the quickest way to obtain articles, unless your topic is very broad, so that scanning several hundred entries by computer would be slower than consulting the casebound volumes. Its main advantage over the Current Law Index is that it compresses all the annual cumulations into one.
b. Current Law Index
Over 700 titles are covered. It uses Library of Congress subject headings, so that if the lawyer is not sure as to the subject, he may consult the Library of Congress Subject Headings publication for assistance. There is a subject index, and author and title index, and tables of cases and statutes. It is published eight times a year, in quarterly cumulations, and in annual cumulations. It indexing of entries is divided into small and more precise subject headings and cross entries are more detailed than that of the Index to Legal Periodicals.
c. Index to Legal Periodicals
Over 500 titles are indexed. It does not use Library of Congress subject headings. There is a subject and author index, tables of cases and statutes, and a book review index. It is published in monthly, quarterly, annual, and tri-annual sections and volumes.
d. WESTLAW and LEXIS
Both computer-assisted legal research systems have databases for the Index to Legal Periodicals and the Legal Resource Index.
3. Specific Articles of General Interest
a. Arguing the ethical weakening affect of professional ethical rules: Abel, Why Does the American Bar Association Promulgate Ethical Rules?, 59 Tex. L. Rev. 639 (1981).
b. D'Amato & Eberle, Three Models of Legal Ethics, 27 St. Louis U. L. J. 761 (1983).
c. Gillers, What we Talked About When we Talked About Ethics: A Critical View of the Model Rules, 46 Ohio St. L. J. 243 (1985).
d. Hazard Communitarian Ethics and Legal Justification, 59 U. Colo. L. Rev. 721 (1988).
e. Hoffman, On Learning of a Corporate Client's Crime or Fraud--The Lawyer's Dilemma, 33 Bus. Law. 1389 (1978).
f. Schneyer, Professionalism and Public Policy: The Case of House Counsel, 2 Geo. J. Legal Ethics 449 (1988).
g. Walter, An Overview of the Model Rules of Professional Conduct, 24 Washburn L. J. 443 (1985).
h. Wolfram, The Concept of a Restatement of the Law Governing Lawyers, 1 Geo. J. Legal Ethics 195 (1987).
1. ABA/ BNA Lawyers' Manual--Advance Sheets (ABA's Center for Professional Responsibility).
This biweekly newsletter is the best general newsletter in the field of legal ethics (in contrast to the narrower and overlapping field of legal malpractice).
2. Legal Malpractice
a. Lawyers Liability Review (Jan. 1986-). Monthly.
b. Malpractice Prevention Reporter for the Legal Profession (January 1983-). Quarterly.
3. State Bar Associations
Newsletters (and the journals) of state bar associations contain ethical opinions, rule changes, and the like. Sources for these can be found in those resources mentioned under Looseleafs in Part III., B. 3., above. And in by contacting the appropriate state bar association.
1. Restatement of the Law, the Law Governing Lawyers (tentative draft no. 3, April 10, 1990).
This draft covers the duty of confidentiality and the duty to avoid conflicts of interest, two of the most difficult an unsettled areas in legal ethics. C. Wolfram is the Reporter for this Restatement. The Restatement analyzes the ABA's Model Code and Model Rules as well as case law and scholarship in these two areas. (G. Hazard, another leading legal ethics authority, is the current Director of the American Law Institute.)
The American Bar Association (ABA) has been successful in persuading the state and federal courts that its Model Code and Model Rules are positive law. State courts cite the Model Code and the Model Rules as evidence of the law. The ABA's Model Code and Model Rules are by far and away the major source for state practice guidelines as promulgated by each state's bar association, or in some cases, by a state's supreme court. Rarely, though, have state and federal courts treated the ABA's Formal Opinions and Informal Opinions as evidence of the law and as guides to interpreting the ABA's Model Code and Model Rules.
Minutes, proceedings, and publications of the following ABA Standing Committees (as well as others) are relevant to legal ethics:
(1) Ethics and Professional Responsibility (formerly Committee on Professional Ethics, 1958-1971, and Committee on Professional Ethics and Grievances, 1919-1958).
(2) Lawyers' Professional Liability,
(3) Lawyers' Responsibility for Client Protection, and
(4) Professional Discipline.
The following ABA Special Committees are also relevant:
(1) Committee on Advertising and
(2) Committee on Evaluation of Disciplinary Enforcement.
Finally committees in each practice area and for the judiciary are also relevant.
b. Center for Professional Responsibility
This Center is for survey and statistical research and for collection of material relevant to legal ethics, legal malpractice, and other related areas. It has published the most complete bibliography on this area. ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography (R. Peterson & R. Wells eds. 1984). It is a national resource on published and unpublished materials in this area. The National Discipline Data Bank is available on-line. Other material is available by mail or fax, 750 N. Lake Shore Dr., Chicago, IL 60611; 312-988-5293.
The ABA House of Delegates adopted the Model Rules in August 1983. They have been amended twice: February 1987 (technical) and February 1989 (technical and substantive). Thirty-four states and the District of Columbia now use all or most of the Model Rules as the basis for their legal ethics rules.
The Model Rules are organized around the functions and roles of a lawyer, including advisor, advocate, negotiator, and intermediary. Model Rules, Preamble, Para. 2. Thus the rules are divided into those dealing with the lawyer-client relationship, those with transactions with persons other than clients, and those with law firms and the public. Each rule is followed by Comments designed to explain the rule.
The Model Rules were written out of dissatisfaction with the Model Code's attempt to separate enforceable rules ("Disciplinary Rules") from unenforceable ethical principles ("Ethical Considerations"), which were designed solely for lawyers' consciences, because of the "Ethical Considerations" vagueness and because they were being used by courts as enforceable rules. In addition the Model Codes's sections on advertising and solicitation were quickly dated. John F. Sutton & J. S. Dzienkowski, Cases and Materials on the Professional Responsibility of Lawyers 20 (West 1989).
The Model Rules can be found in many treatises, in the ABA/ BNA Manual on Professional Conduct, and in T. Morgan & R. Rotunda, 1991 Selected Standards of Professional Responsibility.
The ABA House of Delegates adopted the Model Code in 1969. The ABA last amended it in 1980. Thirteen states still use the Model Code as the basis for their legal ethics rules. Model Code contains Disciplinary Rules that are mandatory in character and which state the minimum below which no lawyer should practice. The Ethical Considerations provide guidance to each lawyers' conscience, although they are often used by courts in enforcement. The Model Code replaced the Canons of Professional Ethics, which the ABA had first adopted in 1908. Like the Model Rules, it can be found in treatises, in the ABA/ BNA Manual on Professional Conduct, and in T. Morgan & R. Rotunda, 1991 Selected Standards of Professional Responsibility.
The ABA Standing Committee on Ethics and Professional Responsibility, as did its two earlier predecessors, the Committee on Professional Ethics, 1958-1971, and the Committee on Professional Ethics and Grievances, 1919-1958, issues Formal (Ethics) Opinions and Informal (Ethics) Opinions. They supplement the Model Rules and the Model Code. Opinions of general import to all lawyers are classified as "Formal," those of lesser import as "Informal."
1. Formal and Informal Ethics Opinions (Formal Op. 316-348 & Informal Op. 1285-1495) (1985).
This volume provides the full text of opinions and contains a detailed subject index as well as citators to the Model Code, the Canons of Professional Ethics, and the Canons of Judicial Ethics. It is supplemented by the looseleaf Recent Ethics Opinions, containing Formal Op. 349-357 and Informal Op. 1496-1530. This volume also contains a cumulative subject index.
2. Informal Ethics Opinions (1975).
This is a digest of the opinions, as Informal Ethics Opinions were not formerly published. Volume I contains the index to both volumes and opinions numbered C230(a) through 866. Volume II contains opinions 867 through 1284.
3. Opinions of the Committee on Professional Ethics with the Canons of Professional Ethics Annotated and the Canons of Judicial Ethics Annotated (1967).
This volume contains a digest of Formal Op. 1-315 and Informal Op. 1-1284. There is a citator to these opinions as well as an index to the Formal Opinions.
1. The Lawyers' Creed of Professionalism and the Lawyers' Pledge of Professionalism (August 1988).
2. Model Rules for Lawyer Disciplinary Enforcement and Disability Proceedings (adopted 1985, last amended August 1989).
3. Model Federal Rules of Disciplinary Enforcement (February 1978).
4. Standards for Imposing Lawyer Sanctions (February 1986).
5. Code of Judicial Conduct (August 1990; replaces previous code of 1972, last amended in 1984).
6. Standards Relating to Judicial Discipline and Disability Retirement (February 1978).
7. Model Rules for Lawyers' Funds for Client Protection (August 1989; replaces Model Rules for Client's Security Funds of 1981).
Access to these additional rules and standards is easiest through the ABA/ BNA Lawyers' Manual on Professional Conduct.
The ABA has produced many other documents relevant to legal ethics. Some of these are listed in ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography 279-281 (R. Peterson & R. Wells eds. 1984). For example, the Committee on Counsel Responsibility and Liability, Section of Corporation, Banking and Business Law, issued Ethical Responsibilities of Corporate Lawyers (1977). Unpublished material is available from the Center for Professional Responsibility in Chicago. The National Legal Malpractice Center also has information relevant to legal ethics.
The ABA through its ABA/net online service publishes a full-text online newsletter every two weeks entitled Ethics Digest. This online newsletter includes court decisions, ABA Formal and Informal Ethics Opinions, and state bar rules. For information: 800-322-4638 or 312-988-6237.
1. State Courts Have Inherent Authority to Regulate Lawyers
The law dealing with legal ethics is primarily state case law as it has applied the legal rules promulgated by state and local bar associations, all of which are copied from either the older Model Code or the newer Model Rules. State courts have claimed power under their state constitutions to regulate the legal profession to the exclusion of the state executive and legislative branches. This includes admission to practice, the definition of the practice of law, discipline, dues, fees, and integration. Federal courts have had the ability to regulate attorneys practicing in front of them since the 1789 Federal Judiciary Act, but unlike the state courts, they have accepted congressional regulations of attorneys without separation of powers challenges. The state courts passively approve or disapprove the rules promulgated by the state and local bar associations, which in turn look to the ABA as the source for the initial drafts of their rules. C.W. Wolfram, Modern Legal Ethics 20-51 (West 1986).
2. Sources for State Codes, Rules, and Opinions
A good research strategy would be to first consult the ABA/ BNA Manual on Professional Conduct to locate the ethics opinions and court decisions relevant to your problem. An attorney could then consult this service to find most of the texts of the important opinions and cases in one spot. West Publishing Company's Court Rules for each state contain the text of the state code or rules. State bar association rules and opinions are published usually in each state bar's journal or sometimes by that state's supreme court, as separate casebound books and as individual circulars. State and local bar association opinions are abstracted by the American Bar Foundation in Digest of Bar Association Ethics Opinions (O. Moru & R. Clough eds. 1970 & Supp. 1990). These materials can be found in ABA/ BNA Lawyers' Manual on Professional Conduct--Bibliography 273-281 (R. Peterson & R. Wells, eds. 1984). They can also be found by calling each state's bar association or by consulting, under the topic "Legal Profession and Professional Responsibility," F. Doyle, Searching the Law: The States--A Selective Bibliography of State Practice Materials in the 50 States (1989 & Supp. 1990).
Michigan as an Example: The Rules of Professional Conduct, based upon the Model Rules, became effective on October 1, 1988. The State Bar of Michigan Standing Committee on Professional and Judicial Ethics publishes Lawyer Ethics Opinions and Judicial Ethics Opinions. The April directory issue of the Michigan Bar Journal contains the Rules of Professional Conduct and the Code of Judicial Conduct. Synopses of ethics opinions are published in the Michigan Bar Journal in periodic pull-out supplements. Formal opinions are published in full, and informal opinions are published only in precis or syllabus form; however, the full text of informal opinions is available from the State Bar, from law libraries, and form some local bar associations. See Goetz & Proctor Anatomy of an Ethics Opinion, 70 Mich. B. J. 184 (February 1991). Michigan Rules of Professional Conduct and Disciplinary Procedure (L. Dubin & M. Schwartz eds. 1989 & Supp. 1991) also contains most of this material in a discussion in looseleaf format of court decisions and State Bar of Michigan opinions under each rule.
An undermet need for researchers is annotated state bar association codes and rules with citations to that state's court decisions. Only fourteen states currently have looseleafs that cover this need.
Admission to practice in a federal court, including the Supreme Court, essentially requires admission to a state's bar or the District of Columbia's bar. With some paperwork and payment of a fee, a lawyer is admitted. Officially each court has its own bar, for example, the bar of the District Court of the Eastern District of Michigan. The federal courts have left it up to the state courts to regulate attorney ethical conduct, although it should be remembered that disbarment or suspension in a state court does not automatically and necessarily result in the same in the federal court. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957).
The Model Code has been widely adopted by the federal courts. Where states have switched to a version of the Model Rules, federal courts have usually switched as well. For example, Sixth Cir. R. of Discipl. Enforcement, Rule 4(B).
The federal courts have also adopted the ABA's Model Rules of Disciplinary Enforcement (1978), conceived in part for the federal courts.
Each federal administrative agencies defines appearance and representation before them; although only paperwork and money is usually required for an attorney admitted to practice in a state or the District of Columbia. Examinations are not allowed. Agency Practice Act of 1965, 5 U.S.C.A. § 500. See SEC Rule 2(e). For the FCC, see 14 C.F.R. § 302.11. For the IRS, see 26 C.F.R. § 601.502.
The Ethics in Government Reporter (Washington Service Bureau), discussed under looseleaf services, covers statutes, regulations, and executive orders governing ethical conduct for lawyers and other employees of the executive branch covered by the Ethics in Government Act, 2 U.S.C.A. §§ 701 et seq. This looseleaf may need to be consulted where a specialized federal practice is involved, e.g., tax, bankruptcy, or federal contracts.
The best case-finding tools are the A.L.R. Annotations and West Publishing Company's state, regional, decennial, and general digests. Because a practicing attorney's research for cases in legal ethics is focused mainly on his own jurisdiction, the state digests are the best place to begin. All states except Delaware, Nevada, and Utah have specific state digests. (Delaware cases are found in the Atlantic Reporter and Nevada and Utah cases are found in the Pacific Reporter.) The regional reporters contain the same decisions organized into clusters or regions of states. (Note, there are no regional reporters for the Northeast or Southwest.) The state and regional digests are case abstracts, consisting of West Publishing Company's own headnotes for each case which are then organized by topic and key-number. The main topic for research in legal ethics is "Attorney and Client," especially key-numbers 105-129.5. Many of the relevant key-numbers will be found under this topic. Note that federal cases arising in each state are also covered in each respective state and regional digest.
Access to specific cases in the digests is usually best had from a known case that is near or on point, which has been obtained from a secondary source such as one of the looseleaf services or treatises. If only the name of the case or one of the parties is known, the citation for the full text in the state reporter can be found through each digest's Table of Cases or through each digest's plaintiff and defendant tables. (Note, only the state digests have defendant tables.) Once the citation is found, reference to the full text of the case will yield the relevant topic and key-numbers to consult back in the digests for other cases on the same point of law. (Here, the known case may be "Shepardized" using an appropriate Shepard volume to find citing cases [see below].) A second method of access is to consult the key-numbers under the topic "Attorney and Client." The third and final method of access is to examine the detailed subject listing in each digest known as the Descriptive-Word Index.
In addition to the West Publishing Company's system, some states have competing case digest systems. For example, Michigan has Callaghan's Michigan Digest. Its advantage over the West Publishing Company's digest is its listing of treatises, law review articles, and A.L.R. Annotations.
For research into other states, the digests for each relevant state could be consulted; however, this will quickly become inefficient. West Publishing Company's regional, decennial, and general digests are preferred. The decennial and general digests include cases under each topic and key-number from all jurisdictions. The Ninth Decennial Digest, Part 2 covers the years 1981-1986. For later cases, consult the General Digest, Seventh Series (1986-date). As with the state and regional digests, the decennial and general digests contain Descriptive-Word Indexes, but these are not as detailed as those in the state digests, as well as Tables of Cases and key-numbers. The most efficient approach to finding cases in many jurisdictions is to use WESTLAW or LEXIS (see below).
In addition to the usual Shepard volumes, there is the specialized Shepard's Professional and Judicial Conduct Citations (since November 1980).
These computer-assisted legal research systems are best used after examination of secondary authorities and those primary authorities located through secondary authorities and digests, because of the need to have a clear understanding of the law regarding the ethical problem, because of these systems' expense, and because of their literal search terms that parallel the syntactical relationships and grammatical structure of the written opinions (i.e., it is very easy to find irrelevant cases).
WESTLAW search aids are found in Wolfram, Modern Legal Ethics (West 1986) and other West Publishing Company sources. Examples include:
(1) attorney lawyer counselor** (bar /2 state association) /4 regulat*** /p judicial judge legislat***
(2) attorney lawyer (law legal /2 profession practice) bar "professional responsibility" /5 code "model rule"
(3) attorney lawyer counsel** /s disciplin*** /5 sanction /p disbar! suspen! censure
WESTLAW has a Judicial Discipline & Disabiity Digest (identifier "JDDD").
WESTLAW has the ABA database with Formal and Informal Ethics Opinions, the Standards for Criminal Justice, the Code of Judicial Conduct, and the Model Rules (but not the Model Code).
LEXIS has the ABA Library (identifier "ABA"). Within this library under the file "CODES" are the Model Rules, the Model Code, and the Code of Judicial Conduct. Under the file "FORIN" are the Formal Opinions of the ABA Ethics Committee and the Committee on Professional Responsibility issues since 1924. Under the file "INFOP" are the Informal Opinions of the ABA issued since 1961. Both the Formal opinions and the Informal opinons can be found together in the file "ETHICS."
Both systems have on-line the Index to Legal Periodicals and the Legal Resource Index.
1. Citations to resources generally follow the format of A Uniform System of Citation (14th ed. 1986) ["Blue Book"], with the exception that publishers and series titles are generally indicated for books and monographs.