Focus on Professional Responsibility
By: Hon. Henry W. Saad
Practical ways to improve the Ethical Behavior of Lawyers
Most lawyers practice law as members of a private or public organization, such as a law firm, government agency, corporate legal department, labor union, or public interest organization. When attorneys practice law in group settings, compliance with ethical obligations becomes an organizational-as well as an individual-concern because any individual attorney's conduct can impact every other attorney in the group. Accordingly, it is important that the organization implement and maintain systems and procedures dedicated to ensuring that all lawyers in the organization conform to the Michigan Rules of Professional Conduct. The organization's leaders must make ethical behavior a top priority, and take action that demonstrates their commitment to the ethical practice of law.
The Michigan Rules of Professional Conduct 5.1
The focus of this article is MRPC 5.1, which sets forth an organization's responsibilities for maintaining ethical compliance:
Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer.
A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer is a partner in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or
(2) time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
MRPC 5.11 tells senior lawyers in the organization that they must help others in the organization comply with the Michigan Rules of Professional Conduct. The Rules of Professional Conduct set forth minimal standards of conduct that Michigan attorneys must satisfy. An organization is certainly entitled, however, to set higher standards for itself and its attorneys. For example, MRPC 1.7(a) permits a lawyer to represent a client even when the representation of that client could be directly adverse to another client as long as "(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation."
A law firm may, however, set a higher standard and prohibit such representation regardless of the lawyer's belief or the client's consent. When an organization requires adherence to a higher ethical standard than required by law, the organization needs to inform its attorneys of the higher standard and implement an internal compliance procedure. The organization may find it efficacious to incorporate such procedures with its plan for MRPC 5.1 compliance.
Risks of Unethical Behavior
Every lawyer and every legal organization should appreciate the risks of engaging in unethical conduct. What risks does a lawyer face for unethical conduct? Under our system of jurisprudence, a lawyer may face:
- State Bar of Michigan discipline for violations of the Michigan Rules of Professional Conduct;
- Court sanctions for litigation-related misconduct under FR Civ P 11, MCR 2.114 and 2.625 (frivolous filings) or MCR 2.313 (discovery violations);
- Administrative agency sanctions, for example, practice restrictions before organizations like the SEC,2 and
- Malpractice suits when the unethical conduct also constitutes a cause of action for malpractice.
In addition to legal sanctions, a lawyer who violates ethical rules may also face a loss of clients, diminished reputation, and loss of employment.
An attorney's unethical conduct also subjects his organization to the risk of loss of business, harm to its reputation, and costly malpractice suits. At this writing, the ABA Model Rules do not subject the organization itself to sanctions. However, lawyers are advised that New York has adopted a rule which provides for sanctions against the organization,3 and that the ABA is considering the adoption of this rule.4
Specific Ways to Comply with Michigan Rules of Professional Conduct 5.1
- The organization's leadership should establish an Ethics Chair and Committee to promulgate rules, procedures and provide oversight.
- At the initial orientation session, the organization's leaders (preferably including the Ethics Chair) should make clear to everyone that the organization expects ethical behavior from everyone associated with the organization.
- Distribute a copy of the Michigan Rules of Professional Conduct and a copy of the American Bar Association's Annotated Model Rules of Professional Conduct to each lawyer with instructions to study and understand the basic rules.
- At the orientation session, devote substantial time to reviewing the Michigan Rules of Professional Conduct, the importance of ethics to each lawyer and legal assistant, and the systems in place to deal with ethical issues.
- The Ethics Committee should be available to respond to all ethical inquiries raised by anyone within the organization. Where appropriate, committee members and the inquiring attorney should observe confidentiality.
- Establish a mentoring program so each lawyer has a mentor who reviews new lawyer's work for substantive, procedural and ethical integrity. It is especially important for each new lawyer to know that before an opinion letter is sent to a client or a pleading is filed with the court, the work will be reviewed by a more senior, supervising or mentoring lawyer within the organization. Of course, this system will not operate effectively unless all participants understand that ethical compliance is a vital component of work product quality-no less important than persuasive argument or thorough research.
- Annual in-house seminars and retreats should include ethics as a major topic on the agenda. Additionally, lawyers should be encouraged, perhaps required, to attend ICLE and other bar seminars, at least every other year, on developments in legal ethics.
- The organization's in-house newsletters and electronic bulletin boards should include developments in the law of ethics.
- Nonlawyer members of the organization should receive ethical training and materials to emphasize the importance of ethics, especially the nature and significance of confidential client communications.
- Because each practice group within an organization has ethical concerns peculiar to its specialty, each practice or department leader should include a discussion of these special ethical issues in its regular meetings.
- Intake procedures should be designed to detect every potential conflict and to detail accurately the nature and scope of the representation and fee arrangements.
- Communications with clients, third parties and courts regarding ethical issues should be reviewed and cleared by the Ethics Chair for consistency and strict compliance with both the Michigan Rules of Professional Conduct and the organization's ethical standards.
- In the event lawyers disagree on an ethical issue, the organization should require that the matter be referred to the Ethics Committee for a final decision. This procedure should minimize difficult problems for junior lawyers who disagree with senior lawyers on the proper solution to ethical issues and also obviate the "superior orders" defense to unethical conduct by junior lawyers.5
- Communications to the press regarding pending matters, advertising and solicitation of business all pose complex first amendment and ethical issues which should be cleared by the Ethics Committee for consistency and conformity with the organization's ethical standards.
The leaders in an organization set the tone and example in most matters of importance-this is particularly true in the field of character and ethics.
MRPC 5.1 embodies this essential truth and, accordingly, requires the leaders of legal organizations to supervise junior lawyers and to establish systems to help junior lawyers and nonlawyers conduct themselves ethically. It is incumbent on those who have been in the legal profession for many years and who honor the legal system, to impart this sense of honor and dedication to ethics to those who are beginning their legal careers. A genuine commitment to ethics, which starts at the organization's highest levels, will serve the organization, its members, and the public well.
1. MRPC 5.1 is taken from ABA Model Rule 5.1. The earlier Model Code of Professional Conduct did not address the ethical issues contemplated by Model Rule 5.1, and did not contain any provisions which were analogous to Model Rule 5.1.
2. 17 CFR 201.2(e) (1990).
3. NY Comp Codes, R & Regs, Title 22, 1200.5.
4. See the ABA Center for Professional Responsibility website, www.abanet.org/cpr
5. Rice, Carol M. The superior orders defense in legal ethics: sending the wrong message to young lawyers. 32 Wake Forest L Rev 887 (1997).
"Focus on Professional Responsibility" is presented as a monthly feature to address ethics, professionalism, and other regulatory issues affecting Michigan lawyers.
The full TEXT to all Michigan ethics opinions, both professional and judicial, can now be found on the State Bar of Michigan's internet site: http://www.michbar.org free of charge. This service has been added to assist Michigan lawyers in researching ethics inquiries.
Judge Saad is an adjunct professor of law at Wayne State University Law School and the University of Detroit/Mercy Law School where he teaches Ethics and Evidence, respectively. He has been a judge on the Michigan Court of Appeals since 1994 and practiced law for 20 years at Dickinson, Wright, Moon, Van Dusen & Freeman, upon graduating from Wayne State University Law School, magna cum laude, in May of 1974.