Ethics Law aka The Law of Lawyering

Mark Rubin

In part my law practice involves ethics law. The term fairly describes the practice area, but Law of Lawyering more completely defines it. Simply, I focus on issues which arise for lawyers as they practice law.*

The Rules of Professional Conduct govern lawyer conduct. The American Bar Association published Model Rules of Professional Conduct in the 1980s, to replace its Code of Professional Responsibility. Arizona had adopted the Code in 1970 and replaced it with its version of the ABA Model Rules in 1985. (For an excellent history of lawyer ethics in Arizona read The Short History of Arizona Legal Ethics by Keith Swisher.)

In 2003 Arizona adopted a rewritten version of the Model Rules. We—I served on the 17-person committee—took the best from our existing Rules and the ABA’s Ethics 2000 Model Rules, and added our best thinking. The 2003 Arizona Rules of Professional Conduct, as amended, guide lawyer conduct, setting minimum standards for how we practice law.

The Rules of Professional Conduct include 56 separate rules, with subparts. They cover relations with clients generally (and as an advocate and counselor), dealing with third parties, and supervising others. The Rules also address law firms, public service, disseminating information aka advertising, and maintaining the integrity of the profession.

Discipline

Ethics law is all about the Rules of Professional Conduct. In the main in my ethics practice, I represent lawyers who get cross-ways with the State Bar’s lawyer regulation people. Someone complains to the State Bar about a lawyer, lawyers at the Bar measure the conduct against the 57 rules, and … the lawyer hires me—or someone like me—to defend against the charges. The Bar wants to discipline the lawyer. The ethics lawyer’s job? Make the case go away but, if he or she violated an Ethical Rule, get him or her the best possible outcome.

In this core part of my ethics practice, the issues rarely involve moral character. Frankly, while lawyers do steal from their clients and lie to courts, I don’t get those cases. (They’re rare, by the way.) Instead, my clients make accounting mistakes when they handle client moneys. They neglect client matters. Get close to or cross conflict of interest lines (without any evident intent to benefit themselves). Unintentional errors.

Advising

My ethics practice also includes an advisory role. Here, lawyers call me with questions which amount to: Can I do this? In these “pay me now” situations I get the chance to help a lawyer—one who is wise and honest enough to get clarity before he or she acts—avoid a problem.

Malpractice

E(thical)R(ule) 1.1 mandates that lawyers handle matters competently. Unfortunately, that happens not always. However, many competency cases get dealt with through legal malpractice suits. Here, my firm usually switches sides and represents clients in suits against their lawyers. I have handled 25 or so legal malpractice cases in my 37 years as a lawyer. These cases provide an opportunity to recover damages for the client, based on mistakes which prior counsel made.

Expert Testimony

Finally, my ethics practice includes occasional gigs offering expert testimony about lawyer conduct. The law requires expert testimony regarding the standard of care and causation. Meaning? If you want to sue a lawyer you need to hire another lawyer to say the first lawyer screwed up and hurt you. (I testify for both clients and lawyers, letting the conduct and my knowledge guide my willingness to get invovled.)

If you’re a lawyer with a letter from the State Bar of Arizona, you have questions about an ethics issue, or you need an expert witness, I can be reached at 520-623-3038 or mark@rubinbernsteinlaw.com. And if you think your lawyer made a mistake which harmed you, the number and email address are the same.

*Side benefit of ethics law? Doing legal ethics work causes lay people to assume I am an ethical lawyer. I am, I think. My friends who work in the field are too. That said, most lawyers—regardless of the work they do—practice ethically and working on ethics issues does not make a lawyer ethical.