CHAPTER 1 THE ATTORNEY DISCIPLINARY SYSTEM—FEATURES AND TRENDS

• Jurisdiction: United States

Ethics And Professional Responsibility In The New Millennium
(2000)
CHAPTER 1
THE ATTORNEY DISCIPLINARY SYSTEM—FEATURES AND TRENDS
Nancy L. Cohen ^*
Office of Attorney Regulation Counsel Colorado Supreme Court
Denver, Colorado

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The following article is a discussion of attorney regulation systems and trends in the regulation of attorneys. Because disciplinary system differ from state to state, it is necessary for attorneys, new and experienced, to familiarize themselves with the structure of their own jurisdiction. This article is, in part, a discussion of areas that are particularly worthy of consideration in any given jurisdiction.

Just as the structure of attorney disciplinary systems vary from state to state, ethical issues and trends also vary. This article provides some examples of these developments. But this discussion is by no means exclusive. However, it is representative of the kinds of issues that have confronted attorneys with some recent frequency.

1. Governing Bodies—Structure

A. The Highest Courts

A state's highest court is frequently charged with jurisdiction over matters of attorney discipline. For instance, Colorado Rule of Civil Procedure 251.1(b) provides that every attorney licensed to practice in Colorado is subject to the jurisdiction of the Supreme Court. The Supreme Court determines which rules govern attorney conduct within its jurisdiction. In some jurisdictions, such as Colorado, the court appoints a Presiding Disciplinary Judge or other official(s) to preside over cases of attorney discipline.¹

B. Office of Attorney Regulation/Office of Disciplinary Counsel

For jurisdictions that have such an office, the Office of Attorney Regulation or Office of Disciplinary Counsel serves as the investigator and, if necessary, as prosecutor in matters of attorney discipline. The attorney regulation counsel is usually appointed by the state's highest

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court.² The appointed Regulation or Disciplinary Counsel then appoints a deputy and/or the rest of the attorneys and office staff, within the parameters prescribed by the court and/or the bar. The attorneys within this office typically have several years of experience practicing law.³ The disciplinary office fields complaints and conducts initial investigations of the underlying allegations. The office then determines whether there are sufficient grounds to establish that an ethical provision has been violated. If such a determination is made, the office must decide whether formal or informal proceedings are appropriate.⁴ Formal proceedings can include a trial, which is akin to a civil proceeding.⁵ In such a proceeding, the attorney regulation counsel or disciplinary counsel represents the People of that state.

Courts in other jurisdictions, such as Pennsylvania, appoint a Disciplinary Board to oversee the Office of Disciplinary Counsel. In Pennsylvania, the Board is comprised of fourteen lawyers and two non-lawyers, who are appointed by the Pennsylvania Supreme Court for three-year terms. The Board also appoints Hearing Committee Members to assist in the disciplinary process. There exist four district offices in Pennsylvania, each of which carries out complaint review, investigations, and prosecutions. A Disciplinary Counsel-in-Charge supervises each of the offices.⁶

2. Difference Between Malpractice and Discipline

In legal malpractice matters, standards for proving a tort such as negligence may apply. Breach of fiduciary standards may also apply. A claimant in a legal malpractice action is required to show a duty, breach of that duty, causation and damages. Therefore, a legal malpractice claim can be classified as a tort action against an attorney by a party to whom a duty was owed.⁷

There are some similarities between an ethical rule violation such as neglect and an attorney's negligence that gives rise to a legal malpractice action. However, an ethical rule violation does not automatically give rise to a legal malpractice claim or vice versa.⁸ Further, there is a difference between a breach of duty to a client, for which the client can recover damages, and a rule violation, which alone is not enough to establish a malpractice claim.⁹

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For example, there are some contexts in which an ethical rule is violated with no breach of duty to a client. For instance, George C. Hazard Jr. and W. William Hodes cite American Bar Association (ABA) Model Rule of Professional Conduct (Model Rule) 3.7¹⁰ as an example in which a violation would not breach a tort law obligation to an opposing party who might enforce the duty.¹¹ Model Rule 3.7 provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where

(1) The testimony relates to an uncontested issue;

(2) The testimony relates to the nature and value of legal services rendered in the case; or

(3) Disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

It is particularly worthwhile to compare claims of legal malpractice to claims of ethical neglect under Rule 1.3 of the ABA Model Rules. Model Rule 1.3 simply provides that "A lawyer shall act with reasonable diligence and promptness in representing a client."¹² There is no requirement of a pattern of misconduct to establish a violation of Model Rule 1.3.¹³ A single act of misconduct may amount to a violation of Model Rule 1.3. Quite simply, Model Rule 1.3 places two demands on an attorney. First, an attorney must act with reasonable diligence. Second, an attorney must act with promptness. Additionally, the Comment to Model Rule 1.3 implies that zeal is the appropriate standard for litigation.¹⁴

A lawyer's neglect does not have to result in actual harm to the client to constitute a rule violation.¹⁵ The American Bar Association Standards for Imposing Lawyer Sanctions,¹⁶ discussed infra, state that harm to the client can be actual or potential.¹⁷ By contrast, legal malpractice claims require proof of actual damages as an element of the charge.

However, it may be more difficult to prove an ethical violation of neglect than to prove an attorney malpractice or breach of fiduciary duty claim. Claims of legal malpractice require proof by the preponderance of the evidence, whereas ethical violations must be proven by clear

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and convincing evidence. This is due to the fact that attorney disciplinary proceedings are "quasi-criminal" in nature.¹⁸ Consequently, just as ethical rule violations are not enough to establish claims of legal malpractice per se, legal malpractice claims alone might not be enough to establish a violation of a given ethical rule violation.

3. The Ethical Standards Governing Lawyers' Conduct

The following is a breakdown as of 1999 of the different ethics rules for attorney conduct, and which rules various jurisdictions have adopted:

1. ABA Model Rules of Professional Conduct

a. 43 states have adopted the Model Rules (includes CO, KAN, OKLA, WY, UT, NEV, N.M., ARIZ, ID, D.C.)

b. Rules are pending before the court in Tennessee

c. Rules are under consideration by study group in Georgia

2. ABA Code of Professional Responsibility (Model Code)

a. 3 states have adopted and revised the Model Code (including N.Y.)

b. There is no active review of the Model Code in 4 states (including NEB)

3. Other (California)

a. California uses neither the Model Code nor the Model Rules.¹⁹

These various ethical rules and regulations provide the guidelines and standards that govern attorney conduct. Some rules are phrased in affirmative terms, prescribing certain conduct (such as pro bono work). Other rules are phrased in terms that proscribe conduct (such as rules governing conflicts of interests).

The rules governing the ethics of attorneys have evolved over time. Even today, different jurisdictions use variations of the Model Rules or Model Code. However, the vast majority of states are governed by either the by the Model Code or the more recent Model Rules. While these rules are substantially similar in many circumstances in many circumstances, it is noteworthy that they are not identical. For instance, Minnesota adopted a modified Model Rule 8.4(h) (conduct reflecting adversely on an attorney's fitness to practice law).²⁰ Similarly, Colo. RPC 3.7 is substantially different from the Model Code.

It is therefore critical for an attorney to make two inquiries. First, the lawyer must ascertain whether the Model Code or the Model Rules (or neither if the attorney is practicing in California) govern attorney conduct in the practice of law in that jurisdiction. Second, it is

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essential to know what portions of the Model Rules or Model Code have been adopted in a particular jurisdiction.

4. Types of Discipline

The American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) provides a discussion of what conduct warrants a particular sanction after the fact of misconduct has been established. At the most general level, the ABA Standards instruct the court to consider the following factors: the duty violated; the lawyer's mental state; the potential or actual injury caused by the lawyer's misconduct; and the existence or aggravating or mitigating factors are considered.²¹

The ABA Standards apply these criteria to different types of misconduct.²² More specifically, the Standards set forth which of four types of discipline is appropriate in a given factual situation. The four types of discipline, ranging from most serious to least serious are: disbarment, suspension, public reprimand, or private admonition.

Aside from these four types of public discipline, the ABA Standards list conditions that can be imposed if misconduct is established. These include probation, restitution...