Professional-Responsibility-Miller-Sp06

Professional-Responsibility-Miller-Sp06 - Professional...

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Professional Responsibility I. Where Do “Ethics” Rules Come From: 1-15 1. Who makes the ethics rules? The constitution – 1 st and 6 th amendments in particular Statutes – both procedural and evidentiary rules Codes of conduct – drafted by a number of sources, adopted by the courts The Courts – as a self-regulating profession, the courts do play a large role in this o The power to regulate the bar belongs almost exclusively to the courts, to the extent that they will often invalidate legislation which seeks to impose standards on the bar Courts may tolerate some legislative intervention if it’s an exercise of police powers to protect the public (i.e. law limiting attorney’s fees in med malpractice actions) but that’s about it… o Rather than the legislature? Yes, in large part Inherent powers doctrine has been cited to invalidate efforts by the legislature Power to regulate the bar belongs to the courts almost exclusively The ABA o Vast majority of states have adopted some version of the ABA model rules, and if thy’re not incorporated verbatim the courts will still look to them as guidelines o But the ABA doesn’t really have binding authority Lawyers don’t need to join The model rules aren’t mandatory unless they’re picked up by a state agency that has the authority to implement them Self-regulation creates a sticky situation – allowing those who will be regulated to write the regulations o Proponents of the practice argue that self-regulation is a hallmark of professionalism The profession is more in tune with reasons to regulate Ex: reacting to scandals – Professional responsibility became an accreditation requirement after Watergate, new changes in the rules post-Enron and other corporate scandals The idea of the bar as a self-regulatory body permits a type of regulation that wouldn’t be possible – internally aspirational, encourages all members to do their best Self-regulation may be more pervasive – the entire profession is subject to the sense of the overarching obligation o Courts often defer to the decisions of the model rules bodies Problem – non-elected, nongovernmental body making the rules Benefit – has led to less “rubber-stamping” and more oversight by a concentrated source 2. What rules actually apply? The bar is a self-governing institution, but the rules that apply are far from uniform Model Rules – issued in restatement format, more like black-letter authoritative rules, with comments to serve as additional guidance o Given different weight by different jurisdictions o Model code for professional responsibility – the older, canon based rules o Model rules – more current, followed at least in part by about 40 states Problem – multistate practice, what happens when jurisdictional rules differ or conflict?
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