MATERIALS ON

PROFESSIONAL RESPONSIBILITY
DEAN SUNI
WINTER 2008
For educational use by students at the
University of Missouri-Kansas City School of
Law only. Not for publication.
8 1!" 1" #$$$" #$$1" #$$%" #$$!
MATERIALS ON PROFESSIONAL RESPONSIBILITY
DEAN SUNI
INTRODUCTION
&hese 'aterials are for use in the course on (rofessional )esponsibility. &his
section is an introduction both to these 'aterials and to the course.
&he *oals of the course are four-fold+
1. &o introduce you to professional responsibility issues and
to assist you in reco*ni,in* such issues in situations
lawyers face in practice"
#. &o provide the tools necessary to resolve these issues"
which include both -nowled*e of e.istin* standards and
an understandin* of the underlyin* policies and
concerns"
%. &o assist you in developin* your own personal sense of
identity and role as an attorney" so that you can resolve
/ethical/ dile''as and critically evaluate the standards
which have been adopted by the profession" and
0. &o prepare you to successfully co'plete the Multistate
(rofessional )esponsibility 1.a' 2M()13.
&he first two *oals are si'ilar to the *oals in any substantive law school course.
4ccordin*ly" parts of this course and these 'aterials will rese'ble any other course
you have ta-en. 5ut the third *oal is so'ewhat different" because" unli-e other
courses where you learn 'aterial and s-ills to assist clients in the pursuit of their *oals"
in this course you 'ust deal with your own *oals apart fro' the client6s needs or
wishes. 7t is this difference that causes 'any students to approach this course with
s-epticis'" assu'in* that such *oals are personal and /ethics/ can6t be tau*ht. 5ut
there is a difference between one6s own personal sense of ethics and 'orality and the
professional responsibilities of an attorney. &he first chapter focuses on that difference"
and what it 'eans for us as attorneys.
&he re'ainder of these 'aterials address issues of professional conduct and
re*ulation. &he course focuses on the Model )ules of (rofessional Conduct to ensure
that students have learned the relevant law by the ti'e they have co'pleted the
course. 4 -nowled*e of these rules alone" however" is not enou*h. &hrou*hout the
course we will discuss how decisions about identity and role" coupled with su**ested
responses fro' the )ules and other relevant sources" can lead to resolution of
professional responsibility proble's that will not only avoid discipline but will also be
acceptable to us as individuals and as attorneys. &his is a 'a8or underta-in*" but one
of e.tre'e i'portance.
#
LEARNING OBJECTIVES
&he followin*" borrowed with 'inor chan*es fro' (rofessor 9lesner Fines" is a
*ood state'ent of learnin* ob8ectives for the course+
4t the end of the course" students should+

1. Master the law *overnin* lawyers. :ou should understand the relationship
between bar-*enerated disciplinary codes and other sources of law" such as cases"
statutes and re*ulations. :ou should be able to identify the core issues and
*overnin* law in any troubleso'e situation and be able analy,e co'ple.
professional responsibility proble's in the core areas of concern for attorneys+
the four C;s of the attorney-client relationship
CCo'petence" CCo''unication" CConfidentiality" and CConflict-free representation
the three C;s of the attorney-court relationship
CCandor" CCo'pliance" and CCivility
the F47) rule for the attorney;s relationship with everyone else in society
FFairness" AAccess" IInte*rity" RResponsibility

Finally" you should be able to reco*ni,e the tensions a'on* these concepts" which
are inherent in the re*ulation of attorneys.
#. 5e able to learn 'ore. :ou will have the s-ills to research issues of professional
responsibility and be aware of sources for additional help.

%. <ave a clearer vision of your own professional identity and your stance on
critical =uestions of professional role.

0. 5e able to avoid *ettin* yourself" your fellow attorneys" and your clients into
trouble" by havin* learned so'e practical strate*ies for avoidin* co''on professional
pitfalls.
>. <ave the infor'ation and s-ills to pass the M()1 with appropriate preparation.
%
CHAPTER I
THE LAWYER AS PROFESSIONAL:
CONFLICTING OBLIGATIONS, CONFUSING ROLES
I. THE ROLE OF LAWYER: WHO ARE WE? WHO AM I?
5efore readin* the followin* 'aterials" thin- briefly about why you chose to
beco'e a lawyer. ?hat do you want fro' your professional career@ ?hat are your
*oals and e.pectations@ &hen thin- about what is e.pected of you. &o who' do you
have obli*ations" and what are they@ 4re all these obli*ations consistent" or do they
conflict@ 4s an attorney" what role do you play vis-a-vis your clients" the courts and the
Asyste'B@ <ow will you and your role be perceived by non-lawyers" and are you
prepared to deal with that i'a*e@ ?ill bein* a lawyer i'pact your ability to be the
person you want to be@
Consider the followin* e.cerpt fro' Monroe <. Freed'an" Lawyer and Client:
Personal Responsibility In a Professional System (in Ethics and Advocacy" Final
Report of the Earl arren Conference" &he )oscoe (ound-4'erican &rial Lawyers
Foundation C1!DE" F )oscoe (ound Foundation" reprinted with per'ission3 +
7t is a sin*ularly *ood thin*" 7 thin-" that law students" and even so'e lawyers and law
professors" are =uestionin* with increasin* fre=uency and intensity whether
/professionalis'/ is inco'patible with hu'an decency - as-in*" that is" whether one
can be a *ood lawyer and a *ood person at the sa'e ti'e.
?hy should this be an issue@ ?hat is it about lawyerin* that 'i*ht be inconsistent
with bein* a A*oodB person@ ?hat is a *ood person@ ?hat is a *ood lawyer@ &hese
are co'plicated but i'portant =uestions.
7n his article" Freed'an discusses an article by (rofessor )ichard
?asserstro'" Lawyers as Professionals: Some !oral Iss"es" and continues+
(rofessor ?asserstro' holds that the core of the proble' Cas to whether one
can be a *ood person and a *ood lawyerE is professionalis' and its conco'itant" role-
differentiated behavior. )ole differentiation refers" in this conte.t" to situations in
which one6s 'oral response will vary dependin* upon whether one is actin* in a
personal capacity or in a professional" representative one. 4s ?asserstro' says" the
/nature of role-differentiated behavior ... often 'a-es it both appropriate and desirable
for the person in a particular role to put to one side considerations of various sorts -
and especially various 'oral considerations - that would otherwise be relevant if not
decisive./
4n illustration of the /'orally relevant considerations/ that ?asserstro' has
in 'ind is the case of a client who desires to 'a-e a will disinheritin* her children
because they opposed the war in Gietna'. C&his article was written in the !$;s.
Substitute whatever conflict wor-s best for you.E (rofessor ?asserstro' su**ests that
the lawyer should refuse to draft the will because the client6s reason is a /bad/ one.
5ut is the lawyer6s paternalis' toward the client preferable - 'orally or otherwise - to
the client6s paternalis' toward her children@
0
?e 'i*ht all be better served"/ says ?asserstro'" /if lawyers were to see
the'selves less as sub8ect to role-differentiated behavior and 'ore as sub8ect to the
de'ands of the 'oral point of view./ 7s it really that si'ple@ ?hat" for e.a'ple" of the
lawyer whose 'oral 8ud*'ent is that disobedient and unpatriotic children should be
disinherited@ Should that lawyer refuse to draft a will leavin* be=uests to children
who opposed the war in Gietna'@
7f the response is that we would then have a desirable diversity" would it not
be better to have that diversity as a reflection of the clients6 viewpoints" rather than the
lawyers6@
7n another illustration" ?asserstro' su**ests that a lawyer should refuse to
advise a wealthy client of a ta. loophole provided by the le*islature for only a few
wealthy ta.payers. 7f that case is to be *enerali,ed" it see's to 'ean that the
profession can properly re*ard itself as an oli*archy whose duty is to nullify decisions
'ade by the people6s duly elected representatives. &hat is" if the lawyers believe that
particular clients 2wealthy or poor3 should not have been *iven certain ri*hts" the
lawyers are 'orally bound to circu'vent the le*islative process and to forestall the
8udicial process by the si'ple device of -eepin* their clients in i*norance of te'ptin*
ri*hts.
Nor is that a caricature of ?asserstro'6s position. &he role-differentiated
a'orality of the lawyer is valid" he says" /only if the enor'ous de*ree of trust and
confidence in the institutions the'selves Cthat is" the le*islative and 8udicial processesE
is itself 8ustified./ 4nd we are today" he asserts" /certainly entitled to be =uite s-eptical
both of the fairness and of the capacity for self-correction of our lar*er institutional
'echanis's" includin* the le*al syste'./ 7f that is so" is it not a non se=uitur to
su**est that we are 8ustified in placin* that sa'e trust and confidence in the 'orality
of lawyers" individually or collectively@
&here is /so'ethin* =uite seductive"/ adds ?asserstro'" about bein* able to turn
aside so 'any ostensibly difficult 'oral dile''as with the reply that 'y 8ob is not to
8ud*e 'y client6s cause" but to represent his or her interest..B Surely" however" it is at
least as seductive to be able to say" /My 'oral 8ud*'ent - or 'y professional
responsibility - re=uires that 7 be your 'aster. &herefore" you will conduct yourself as 7
direct you to./
1. Can a *ood lawyer be a *ood person@ &o what e.tent can 2should3 a lawyer
put aside his or her own values in representin* a client@ Should a lawyer decline
representation because he or she disa*rees with the client@ ?ith the client6s 'eans@
?ith procedures he or she 'ust use to acco'plish either@
7s it HK to be a'oral as lon* as we6re not i''oral@ 7s it HK to pursue le*al" but
in your view i''oral" ends of a client@ 7s there anythin* wron* in as-in* people with
le*al but 2ar*uably3 i''oral ai's to acco'plish those ai's the'selves@ Ioes it
2should it3 'atter that there is li-ely to be less 2or un-3 ethical lawyers around to do the
client6s biddin*" and if done by those with a better sense of ethics" at least there is
so'e hope for a better 2'ore 8ust3 result@
>
4re these even appropriate concerns@ Should we discuss the 'orality or
/ri*htness/ of *oals and 'eans with the client" or are we to address only the le*al
aspects of a client6s affairs@ See M). #.1.
#. 7s there a better way to thin- about what it 'eans to be a A*ood
lawyerB@
Consider the followin*+
&<1 9HHI L4?:1)
Kevin F. )yan" Iirector of (ro*ra's J (ublications at the Ger'ont 5ar 4ssociation
Copyri*ht F #$$1 by Ger'ont 5ar 4ssociationK Kevin F. )yan
)eprinted with per'ission
Certainly one of the thin*s we would li-e to i'a*ine ourselves to be is a /*ood
lawyer./ 5ut what does it 'ean to be such a creature@ ?hat 'a-es a *ood lawyer@
Surely professional co'petence constitutes part of the picture - but only a part. Hne
can have all the professional co'petence in the world and use it for bad ends" use it
in a 'ean-spirited way" or si'ply be a nasty person while usin* it. Surely so'ethin*
tells us that such people cannot be /*ood/ lawyers no 'atter how prodi*ious their
technical talents. So bein* a *ood lawyer 'eans so'ethin* 'ore than si'ply
possessin* the re=uisite s-ills and -nowled*e to practice in a particular area of the
law.
?hat is this /so'ethin* 'ore/ that distin*uishes the /*ood/ practitioner fro' the
/co'petent/ practitioner@ &he si'ple answer" of course" is /ethics./ 5ut this apparent
si'plicity covers enor'ous co'ple.ity. 7t is not at all clear what one has added to the
'i. by describin* so'eone as /ethical./ For 'any" an ethical lawyer is si'ply one
who practices within the bounds established by the )ules of (rofessional Conduct or
any si'ilar code. Li-e 'any other professions" the practice of law is hed*ed round by
rules of conduct" laid out in officially adopted codes and enforced by professional
conduct boards and the courts. 5ut is a lawyer who adheres strictly to a code really
anythin* 'ore than technically co'petent@ Such a lawyer has si'ply 'astered the
s-ills and -nowled*e re=uired to practice 2and continue practicin*3 in a chosen field of
law. 7s such a person a /*ood lawyer/@ Not necessarily" for one can stay within the
broadly defined and often indistinct boundaries of the )ules without bein* /*ood/ in
the lar*er sense we are see-in* to identify. Narrow-'inded" 'ean-spirited" nasty
reprobates can avoid violatin* disciplinary rules. 5ut we would hesitate to call such
persons /*ood"/ despite their assiduous rule-followin*. 7n other words" followin* rules
bears no necessary relation to bein* *ood.
:et we find it enor'ously difficult to thin- of ethics other than in the conte.t of rules
specifyin* ri*ht and wron* - and in this we are the products of our a*e. &he *reat
'odern ethical thin-ers" faced with the observed diversity of views on 'oral
=uestions" sou*ht to find a solid *round upon which to deter'ine the correct syste' of
'orals" or to fi*ure out how to decide what to do in particular circu'stances. &heories
as diverse 2and opposed3 as 5entha'6s utilitarianis' and Kant6s duty-based ethics
sou*ht to establish a 'ethodolo*y for the deter'ination of how to act in particular
situations. Centuries of preoccupation with findin* the appropriate standards for
ethical decision-'a-in* have resulted in the co''on conception that ethics consists
of nothin* 'ore than findin* *eneral principles and applyin* the' to ethical dile''as.
L
&o fra'e the sub8ect 'atter of ethics in this 'anner is to 'a-e it sound very
fa'iliar to lawyers. Lawyers are trained - perhaps they are predisposed - to loo- for
*eneral standards to apply to the facts of a particular situation. &he study of law
involves the 'astery of *eneral principles" rules" and the official interpretation of the'.
7t also entails the develop'ent of proficiency in the application of those rules to
particular situations. Law 2includin* principles and rules" both written and unwritten3
establishes the boundaries of behavior. Law tells a person what can and cannot be
done" as well as what 'ust be done in order to alter the e.istin* order of thin*s 2e.*."
contract law" the law of sales" property law3. &he co'petent lawyer is the 'aster of
these rules 2or a speciali,ed subset of the'3" of their interpretation by the courts" and
of their application to the diverse circu'stances of 'odern life.
9iven the lawyer6s deeply en*rained orientation toward the deter'ination of ri*ht
and wron* by focusin* on specific situations and evaluatin* the' usin* *eneral
standards" it is no wonder that when lawyers thin- of ethics they thin- of a code of
law-li-e disciplinary rules. &he )ules of (rofessional Conduct 2and si'ilar codes in
other 8urisdictions3 share with 'uch of 'odern ethical thou*ht the assu'ption that
ethical behavior ste's fro' the proper application of *eneral standards to particular
circu'stances. &o a lar*e and disco'fortin* e.tent" ethics for lawyers has beco'e
what it is for 'odern ethicists+ a 'atter of *eneral rules and their use to cope with
=uandaries.
5ut so'ethin* has *one wron* here. For one" conduct codes 'erely set out a
/'oral baseline"/ specifyin* the bare 'ini'u' of ethical conduct. &o be sure" an
attorney who steals a client6s funds - or 'isappropriates those funds to pay for
so'ethin* other than service to the client - is unethical and should lose the privile*e
of practicin* law. 5ut that does not 'ean that an attorney who avoids stealin* or
'isappropriatin* client funds is ethical 2let alone /*ood/3+ such an attorney 'ay be
'erely wary of the conse=uences of violatin* the ethical rules of the profession.
Surely ethics cannot be reduced to a /bad 'an theory/ 2to adapt a pithy phrase fro'
Mustice <ol'es3. &he bad person wants to -now what can be *otten away with" and
follows the rules only to the e.tent that their violation will lead to distasteful
conse=uences. &he attorney who handles client funds properly because doin*
otherwise would 8eopardi,e a license see's 'ore bad than *ood. 4dherin* to the
'oral baseline in this 'anner puts one into a *ray area between bein* unethical
2brea-in* the rules3 and bein* *ood. Confor'in* to the bare 'ini'u' earns us a
passin* *rade" but hardly 'a-es us e.cellent.
Further" 'odern ethical thou*ht" as reflected in professional conduct codes"
reduces the real' of ethics to unusual situations in which principles and rules conflict
or spea- a'bi*uously. 5ut true predica'ents of this sort are rare. 4 hu'an life
involves 'uch 'ore than a series of dile''as. 7t involves creatin* oneself over ti'eK
it is a 'atter of daily livin*" of how one thin-s" spea-s" and acts every day. For
Socrates the heart of the 'atter lay in the =uestion /<ow best is it to live@/ &he
Socratic =uestion su**ests a 'uch broader conception of ethics than that found in
'odern thou*ht. Socrates6 =uestion focuses our attention on a whole life rather than a
particular 'o'ent in life. 7t as-s us to consider how to be" rather than what to do. 7t
pro'pts us to ponder the conditions of the *ood life for the hu'an person.
(ossessin* an ade=uate 'ethod for decidin* what to do" or even 'a-in* the ri*ht
choice" in the occasional =uandary does not 'a-e a person *ood. 5ein* *ood is
different fro' doin* ri*ht" however the latter is deter'ined.
!
&he Socratic conception of ethics" which is e.periencin* a renaissance in the
acade'ic literature and a'on* thou*htful co''entators" pushes us to e.a'ine
=uestions of character and the virtues and vices that reveal character.
1
Girtues are
character traits that lead us to see- out or ad'ire personsK vices lead us to avoid or
disdain persons. Girtues do not occur naturally" but are dispositions to act in certain
ways bred by proper trainin* and by e.ercise. Girtues are habits 2as are vices3K a
person who perfor's one honest act cannot be said to be honest. &he honest person
always inclines toward the honest actionK one possesses the virtue of honesty if one6s
whole life reflects an honesty others only 'ana*e on rare occasions. 5ut habits are
only hapha,ardly bred by rules" which" as we have seen" establish the 'ini'al
re=uire'ents of acceptability in e.ceptional circu'stances. Girtues 2and vices3 infor'
a whole life in a way that rules never can.
?hat are the virtues of the *ood person@ 4ristotle discussed such traits as bravery"
te'perance" *enerosity" 'a*nificence" 'a*nani'ity" 'ildness" friendliness"
truthfulness" wit" and 8ustice. Hther writers have offered different" often lon*er lists. 5ut
no 'atter what the contents of the list" the underlyin* idea is the sa'e+ virtues are
those characteristics that we estee'K vices are characteristics we scorn.
Hne of the i'plications of loo-in* at ethics in this way is that the virtues of the
*ood person and the virtues of the *ood practitioner are unli-ely to conflict. &he
virtues of the *ood lawyer 'ay be 'ore detailed" 'ore directed to the specifics of the
practice of law" but they are always consistent with the virtues of a *ood person in
*eneral. &he *ood lawyer possesses those virtues of character that we ad'ire in
anyone - 8ustice" 'oderation" honor" and so forth - and lac-s those vices that we
disdain in others - ni**ardliness" surliness" selfishness" and so forth. &here is no
separate 'orality for lawyers. &he ethics of the *ood practitioner and of the *ood
person are the sa'e. 9ood lawyers are *ood persons who practice law.
Io you a*ree@ 4re you 'ore co'fortable with this for'ulation@ 7s it really that
si'ple@ Ioes bein* a lawyer and havin* a license to practice *ive you the ri*ht" or
perhaps ever re=uire you" to do thin*s Aout of characterB@ &hin- about circu'stances
where this 'i*ht be the case. <ow do you deal with the'@ Can you avoid such
challen*es@ 7f not" how can you 2should you3 8ustify the'@
7s there intrinsic *ood in lawyerin* that 8ustifies actions inconsistent with our
nor'al behavior and character@ 7f so" what is it@
%. ?hy is there an assault on lawyers@ ?hat characteristics" traits" etc. does
the public believe about lawyers that causes this@ 4re they traits that lawyers have as
people" or as lawyers@ 7s there truly no difference@ 4re these concerns of the public
warranted@ Can we chan*e the'@ <ow@
1

(opular discussion today often uses the word /character/ as a positive trait that
so'e people lac-. &his see's wron*. ?e all have a character+ so'e of us a
character that" on balance" is *oodK others" on balance" have a bad character.
(erhaps we can even have a wea- character. 5ut none of us" at least no adult" is
devoid of character. Character develops over ti'e" for it is the product of how we
thin-" spea-" and act. 7t can chan*e" but it is never absent.
D
0. ?hat are the de'ands and e.pectations placed on us as lawyers@ ?here
do they co'e fro'@ 4re they valid@ !a#e a list of thin$s others want or e%pect from
yo" as a lawyer (we will f"rther develop this list in class&' <ow can you respond to
these often co'petin* de'ands in ways that preserve the -ind of lawyer and person
you want to be@ ?hat influences ne*atively i'pact on your ability to be the -ind of
lawyer and person you want to be@ <ow can you respond to these@
>. <as the *rowth of law as a business undercut the view of lawyers as
professionals@ 7s this desirable@ ?hat proble's arise fro' viewin* lawyers as
business people rather than professionals@ ?hat benefits@ 7s this really an issue of
professionalis'" and can that be separated fully fro' the bi**er issue of professional
identity@
&he 454 has been increasin*ly concerned with these issues" which lie at the
core of the future of the Le*al (rofession. See 454 Co''ission on (rofessionalis'"
In (he Spirit of a P"blic Service: A )l"eprint for the Re#indlin$ of Lawyer
Professionalism 21DL3. 4l'ost all state bars have created co''ittees or
co''issions on professionalis'" and 'any *roups have adopted /Creeds of
(rofessionalis'./ Hne such creed contains thirty-three /credos/ ai'ed at doin* away
with a /win at any cost/ 'entality and encoura*in* fairness in liti*ation. 4nother is a
twelve state'ent /pled*e of professionalis'.B Si'ilar tenets of professional courtesy
have been adopted by both the :oun* Lawyers Section of the Missouri 5ar and the
KCM54. 4ll of these efforts" however" are only aspirational in nature.
Ioes the apparent increase in hard-ball tactics and decrease in courtesy and
cooperation reflect an increase or a decrease in professionalis'@ Ioes it depend on
how one defines professionalis'@ 7s courtesy a professional value if it doesn;t
advance the client=s interests@ Hr is colle*iality and trust a'on* lawyers a necessary
part of professionalis' re*ardless of the client;s interests@ Io these apparent chan*es
in behavior on the part of 'any lawyers reflect chan*es in the ti'es that are beyond
our control as attorneys 2and that in fact 'erely 'irror chan*es in business and
personal relationships3 or are these 'atters that the 5ar can and should address@
Let;s return for a 'o'ent to Monroe Freed'an" this ti'e in 11. See Monroe
Freed'an" (he Lawyer as Professional: (he *olden A$e of Law (hat +ever as,
http+NNwww.t.ethics.or*NresourcesOlawyerprofessional.asp@viewP#Freed'an. Io you
a*ree with his for'ulation@
&here are obviously no ri*ht answers to these difficult =uestions" but issues of
role" identity" professionalis'" and acceptance of /the syste'/ will continue to re=uire
consideration as we proceed throu*h these 'aterials.
II. PROFESSIONALISM
4s we saw in the precedin* section" issues of professionalis' bear on our
sense of who we are as professionals Q our personal sense of professional identity. 5ut
professionalis' is also addressed in the lar*er conte.t of who we are as a profession.

4lthou*h these issues are inte*rally related" the followin* article addresses the lar*er
issue.
Re!"#$"#% &P'()e**"(#+,"*-&
(imothy P' (errell and -ames .' ildman, 01 1'ory L.M. 0$% 21#3
Hver the past few years" /professionalis'/ has been 'uch on the 'inds of
lawyers across the country. 7t is 'ore than 8ust a topic of conversation" however.
/(rofessionalis'/ is now the accepted allusion to the 5ar6s a'bitious stru**le to
reverse a troublin* decline in the estee' in which lawyers are held -- not only by the
public but also" ironically" by lawyers the'selves. 5ein* a lawyer" particularly one
en*a*ed in private practice" see's suddenly an e'barrass'ent rather than a source
of pride. &he 5ar6s response" unaccusto'ed as it is to apolo*i,in* for its social role"
has been predictably defensive and schi,ophrenic+ 'e'bers are usually re'inded by
their leaders that" as a *roup" lawyers really aren6t as bad as people see' to thin-" but
they are ad'onished nevertheless that the profession is threatened by a decline in
co''on decency" attitudes" and standards. Not surprisin*ly" then" this confused
'essa*e has led to little pro*ress in reversin* whatever ne*ative trends lawyers
perceive within the practice.
&he le*al profession6s =uandary can be su''ari,ed relatively easily+ lawyers
have sou*ht a cure for a disease before a*reein* on its nature" sy'pto's" and
causes. ?e want to be happy in our professional lives without investi*atin* seriously
why 'any of us are unhappy. ?e want" in short" to 'orali,e without e.a'inin* our
'orals. 1.plainin* this superficiality" however" is 'ore difficult. (erhaps we are afraid
of what we will find if we turn over the roc- of lawyerin* and e.a'ine what lur-s
beneath. Hr perhaps the proble' is not with what we do as lawyers" but with our
understandin* of /professionalis'./
&he perspective of this 1ssay is that the concept of professionalis' has
beco'e confused and dis8ointed because it has been dia*nosed too hastily. 4 proper
evaluation re=uires patience. 7t de'ands" for e.a'ple" that we be*in with funda'ental
points li-e" a'on* others" the contrast between the profession6s past and its present"
and the chan*in* de'ands society has placed on the le*al syste' over the last half
century. Hnce we have established a better foundation" the true substance of le*al
professionalis' -- the values that 'a-e this nebulous concept worthy of our attention
-- beco'es 'uch easier to identify. . . .
(art of the proble' with the debate about le*al professionalis' is that the
sub8ect is a 'ovin* tar*et. 5oth the le*al profession and the law itself have chan*ed
dra'atically over the past century" su**estin* that any atte'pt to identify a sin*le
professional tradition or herita*e 'ay be fanciful. 5ut this conclusion is too =uic- and
reflects the -ind of cynicis' we 'ust avoid. 7nstead" analy,in* the chan*es in the
profession *ives us an appropriate and very i'portant historical perspective on the
present stru**le to define professionalis'.
A' (he )ar as a /Cl"b/
Hne lesson that history reveals" not surprisin*ly" is that so'e of the cynicis' about
professionalis' is 8ustified. &he herita*e of 5ar associations" li-e that of all trade
or*ani,ations" rests initially in self-interest and protectionis' rather than any noble
spirit of public service. Hur 'edieval predecessors established *uilds to control
1$
co'petition" not to encoura*e it" and until relatively recently we happily continued that
tradition. 5ut before we leap to the conclusion that we should therefore conde'n our
past" we should reali,e two thin*s+ self-interest can in fact produce public benefits"
and our history predicts 'uch of the a'bivalence with which we today approach
professional ethics and professionalis'.
4 useful perspective fro' which to view the *rowth and popularity of
professional associations is that of the econo'ic theory of /clubs./ &his theory holds
that social or*ani,ations even this infor'al do not arise by accident" but because they
serve so'e purpose for their 'e'bers. 7t would be a 'ista-e to assu'e" however" as
'any do" that those purposes are essentially /ne*ative/ -- that is" to control behavior
in ways that benefit that *roup but not the lar*er co''unity 2for e.a'ple" to stifle
co'petition3. &o the contrary" social *roupin*s of this -ind can in fact ori*inate out of
an interest to enhance econo'ic efficiency" not avoid it.
&he basic efficiency-enhancin* feature that clubs can provide is predictability.
7n situations of *reat uncertainty -- where social circu'stances are in flu. or the
nature and =uality of a product are not readily apparent -- individuals with si'ilar
interests 'ay or*ani,e to provide each other with consistent" co'prehensible
feedbac-" and to provide outsiders with a standard a*ainst which the 'e'bers of the
club 'i*ht be assessed. &he essential function of the *roup" conse=uently" is
infor'ation . . . . C&Eo serve this infor'ation function" club 'e'bership 'ust 'ean
so'ethin*K but to 'ean so'ethin*" clubs 'ust in turn be able to e.ercise serious
control over entry into the *roup and the behavior of their 'e'bers. &he dan*er here"
of course" is that ri*or and consistency can devolve into ri*idity and sta*nation" and
the or*ani,ation can destroy its social usefulness.
5ar associations are e.cellent e.a'ples of all the features econo'ic theory
predicts" not only concernin* the early structure they e.hibited" but also the current
challen*es they face. )e*ardin* their past" 5ar associations e.hibited all the classic
/ne*ative/ features of a closed club+
R 5arriers to entry into the profession were serious. 5efore the advent of law
schools" the only route available was apprenticeship to a current 'e'ber of the 5ar"
and there were very few of the'. &hey could in turn e.ercise idiosyncratic control
over those they per'itted to wor- for the' . . . . CCEriteria could be 'uch 'ore socially
and personally detailed" li-e one6s race" class" reli*ion" and so on. Later" once law
schools beca'e the principal place of initial le*al education" entry was still difficult
because of the e.pense involved . . . .
R Control over the decision to ad'it new 'e'bers was ti*htly held by e.istin*
'e'bers" so that *rowth of the or*ani,ation could be -ept s'all and slow.
R Co'petition a'on* 'e'bers was -ept within a very narrow ran*e. (rice-
fi.in*" for e.a'ple" was not only characteristic" it was ri*idly enforced. 4dvertisin*
anythin* other than club 'e'bership was si'ilarly prohibited.
R ?ritten codes of conduct" on the other hand" were conse=uently all but
unnecessary. 5ecause the 'e'bers of this club were so si'ilar to each other
2virtually all drawn fro' the sa'e social stratu'" often closely interconnected with
each other in the co''unity" and so on3" they shared very si'ilar personal values
concernin* ethics and decoru'.
11
&he 5ar associations of today provide a star- contrast. 7ndeed" the present
stru**le over the concept of professionalis' is lar*ely a function of the fact that each
of these characteristics has not si'ply chan*ed" it has been reversed+
R &he only barriers to entry into the profession are the educational
re=uire'ents i'posed by law schools. 4n applicant6s racial or other social
bac-*round plays no serious role" and econo'ic bac-*round is not nearly as relevant
as it once was because of financial aid and low tuitions at state- funded institutions.
Co'petition a'on* law schools has even lowered the educational prere=uisites to
re'ar-ably low levels.
R Control over ad'ission to the 5ar is still held by the 5ar itself" but those
'a-in* the decisions are a relatively s'all *roup faced with assessin* a very lar*e
pool of applicants. Criteria are therefore non- personal and relatively ob8ective+
*raduatin* fro' an accredited law school and passin* a local 5ar e.a'ination.
Neither of these criteria" as it turns out" are particularly difficult to 'eet" and few
applicants are therefore e.cluded because of the'. &he profession has conse=uently
*rown very rapidly.
R 4nti-co'petitive controls" such as those on fees and advertisin*" are out"
and co'petition is fully in. Le*al services are therefore no lon*er a lu.ury available
only to a s'all se*'ent of societyK such services are now widely available" and at
co'petitively varyin* cost.
R Lac- of li'itation on entry has 'eant that the 5ar has *rown not only in
nu'ber but in the diversity of its 'e'bership on every di'ension+ race" reli*ion"
*ender" and 2of specific interest here3 sets of 'oral values. ?hat was once
understood or assu'ed concernin* appropriate behavior no lon*er pertains *enerally.
7nstead" the standards that supposedly characteri,e the practice of law are va*ue"
lac- serious 'oral force" and are constantly bein* challen*ed or rethou*ht.
Hver the last half century" then" we have witnessed the funda'ental
transfor'ation not only of the 5ar" but conco'itantly of the infor'ation conveyed by
the si'ple fact of 5ar 'e'bership. ?here 'e'bership once si*naled a host of
i'pressions or e.pectations about the lawyer6s personality" social bac-*round" fees"
tas-s that would be accepted" and so on" it now indicates 'uch less. 7n other words"
what was once a-in to a priesthood 'ay now be little 'ore than a fan club. &he
=uestion before us now" therefore" is whether this chan*e is si*nificant in any way.
Specifically" has it had an i'pact on the practice of law or the concept of le*al
professionalis'@ 7t has" on both.
)' Five Conse0"ences of the )rea#down of the /Cl"b/
&he transfor'ation of the 5ar fro' a close--nit co''unity of collea*ues to a lar*e"
diverse" co'petitive service industry has *enerated five i'portant conse=uences for
the practice of law.
1' !oral 2iversity, Codes of Ethics, and Professionalism
7n 'ovin* fro' 'oral clubishness to 'oral diversity" 5ar 'e'bership could
have beco'e virtually 'eanin*less. 7f no particular set of values could be ascribed to
lawyers -- indeed" if the public could no lon*er ascribe any values at all to a lawyer
that 'i*ht li'it or channel her conduct -- then bein* a 'e'ber of the 5ar would say
1#
very little of any si*nificance to anyone. Neither lawyers nor non-lawyers would be
able to predict the -ind of interaction they would have with each other in professional
conte.ts. &his sad state of affairs would then be econo'ically inefficient+ without
infor'ation" everyone would waste 'uch of their ti'e and ener*y protectin*
the'selves fro' the unscrupulous" and tryin* to deter'ine who' they could trust.
&his e.tre'e result has been avoided" however" by introduction of the 5ar6s
self-*enerated and self-i'posed codes of /professional ethics./ &he uni=ue function
of these sets of standards is to restore to 5ar 'e'bership so'e basic but =uite useful
/'oral infor'ation./ 7n other words" despite the 5ar6s 'oral diversity and econo'ic
co'petitiveness" the codes announce a purported set of co''on values held by all
5ar 'e'bers. &his in turn produces so'e level of predictability in one6s interactions
with lawyers+ the public and other lawyers can now e.pect lawyers to do or not do
so'e thin*s in certain circu'stances.
5ut those thin*s and circu'stances re'ain va*ue and li'ited. &he rhetoric of
these codes is often lofty" but they in fact enforce only 'ini'u' standards of
behavior+ sanctions are i'posed only for the 'ost e*re*ious for's of 'isconduct.
&hus" the /'oral infor'ation/ provided by the fact of 5ar 'e'bership is really very
s'allK indeed" so s'all as to for' the irony underlyin* all the lawyer 8o-es currently so
popular.
&his" then" is where /professionalis'/ is supposed to enter the picture. 7ts
function is to reach beyond the basic and uninspirin* values enforced by the codes"
and de'onstrate that lawyers share" or ou*ht to share" hi*her" 'ore a'bitious 'oral
aspirations. (rofessionalis' see-s to infuse into 5ar 'e'bership the i'portant 'oral
infor'ation it currently lac-s. 5ut herein lies the basic proble' that 'a-es all
discussions of professionalis' so controversial and unsatisfyin*+ in an era
characteri,ed by 'oral diversity and econo'ic co'petitiveness" it is very difficult to
discuss any /shared professional aspirations./ &he differences that separate us 'ay
si'ply be too vast.
5ut there is no reason to assu'e that 'oral diversity 'eans we are left with
'oral nihilis'. Suite the contrary" it 'eans that the need to identify the essential
ele'ents of our shared professional herita*e is *reater than ever" for that perspective
will *ive us an anchor for the inevitable debate about the profession6s appropriate
aspirations.
3' Increased Client Control
&he effort to identify those aspirations faces another subtle challen*e that is
an out*rowth of the 5ar6s new 'oral diversity and sense of co'petitiveness. &he
popular i'a*e of the lawyer as an independent and ob8ective counselor to who' a
client could turn for dispassionate and" if necessary" unwelco'e advice has eroded
badly in recent years. . . . &he pressure on lawyers today is to portray the'selves as
/can do/ people" dedicated to 'a-in* every possible effort to achieve the *oals set by
the client. &his pressure has in turn redefined how lawyers relate to each other 2and
often how they portray each other to clients3" and it has si*nificantly altered the way
lawyers relate to the le*al syste'. 4lthou*h le*al codes of ethics insist that lawyers
owe a loyalty to that syste' itself" the le*al syste' often see's to be viewed today as
si'ply one 'ore tool to be 'anipulated as necessary in service to a client.
1%
4' E%pansion of /Ri$hts5Conscio"sness/
&he lawyer6s chan*in* relationship to the le*al syste' has coincided with the
public6s chan*in* perception of that syste'. &he law is no lon*er viewed as a
conservative social institution that reveres the past and is suspicious of chan*e. Suite
the contrary" the popular i'a*e of the law today is that of a dyna'ic social force that
can" and should" vindicate the /ri*hts/ of citi,ens. Lawyers" as /can do/ people" have
done their part to foster this 'odern perspective" shiftin* 'uch of the debate about
the proper social role of law into /ri*hts-tal-./ 4s a conse=uence" the client6s
e.pectation is that his lawyer will be as creative and dyna'ic as the new sense of the
le*al syste' su**ests he should be. 4nd *iven the transfor'ations occurrin* within
the 5ar itself -- its 'oral diversity and the de'ands of co'petition -- there are no
traditional conservative forces within the profession to hinder the continuation of this
trend.
6' Challen$es for the -"diciary
4s both the 5ar and the public have chan*ed their approach to the le*al
syste'" a particularly dauntin* set of new challen*es has arisen for the 8udiciary.
Mud*es are lawyers with only the le*al syste' itself as a client" and their uni=ue
responsibility is therefore to its proper functionin*. 5ut that duty can no lon*er be
fulfilled si'ply by decidin* le*al issues in the way the public i'a*ines 8ud*es doK
instead" 8ud*es 'ust now act as babysitters of the syste'6s processes as well. &hose
processes have been strained by the use *iven the syste' by ea*er clients and their
e=ually ea*er lawyers" and as diversity and co'petitiveness increase within the 5ar"
there is little consensus a'on* liti*ators about li'its they should i'pose on
the'selves. Mud*es" therefore" find the'selves as the only serious source of
*uidance on the appropriate use of the courts in the service of clients. . . .
7' Chan$in$ Role of Law Schools
Law schools face a related challen*e. &hey too have chan*ed dra'atically in
both si,e and co'position over the last half century" -eepin* pace with the increased
de'and for and interest in le*al services. &hey have therefore been a 'a8or force in
the 'ove within the 5ar toward 'oral diversity and econo'ic co'petition" and
further'ore" then" in the under'inin* of traditional i'pressions of the professional
herita*e of lawyers. &he =uestion" however" is whether law schools conse=uently have
so'e special responsibility for reinvi*oratin* the discussion of professionalis'" and if
so" what their effort should loo- li-e. 7t would be very easy for 'e'bers of the 5ar to
cast special bla'e on law schools for the current 'oral predica'ent of lawyers -- and
they often do -- clai'in* that the decline of professionalis' is a function of a lac- of
acade'ic interest in it+ since it isn6t tau*ht early" it is never appreciated properly.
5ut this view assu'es far too 'uch. 7t assu'es either that law professors -now
what professionalis' is" and fail to teach it" or that they too are confused" and
therefore avoid the 'atter. &he truth" however" is probably 'ore subtle+ law schools
do not focus 'uch attention on the ideas that see' to be 'ost popular in the current
discussions of professionalis'" not because they have failed to see their responsibility
in this re*ard" but *enerally because they are not 'uch i'pressed with the nature and
substance of those ideas. 7nstead" by continuin* to do what they do best -- focusin*
on the ri*orous e.a'ination of le*al rules and principles -- law schools are probably
doin* a *ood 8ob of teachin* 2albeit i'plicitly and accidentally3 the basic values that
should be related to professionalis'" an ar*u'ent we will co'plete in later sections of
10
this 1ssay. &hey would do better" however" to ac-nowled*e those values 'ore
forthri*htly.
C' !inim"m Points of /Proced"ral/ A$reement Concernin$ Professionalism
5ut for law schools or 5ar associations or anyone else to ac-nowled*e and
preach the values of professionalis'" lawyers 'ust first a*ree on the nature and
substance of the ser'on. &his is particularly difficult" as we have seen" in the conte.t
of a profession whose herita*e has apparently chan*ed si*nificantly over the last half
century" and is still evolvin*. ?e tac-le in the ne.t section of this 1ssay the tas- of
identifyin* what we believe are the essential substantive values of le*al
professionalis'K here" however" we see- to identify a few less controversial
/procedural/ aspects of professionalis' with which we believe all lawyers" despite
'uch disa*ree'ent on substance" would nevertheless a*ree.
5y /procedural/ we 'ean the scope and purposes within the le*al profession
of the values of professionalis' whatever the substance of those values turns out to
be. ?e believe there are three such propositions that lie behind all discussions of
professionalis'+ the universality of its values" its relevance to the practice of law" and
certain *eneral functions it perfor's within the 5ar.
1' 8niversality
?e would ar*ue that all lawyers believe that" if /professionalis'/ e.ists" then it
applies to all lawyers and all areas of the practice of law" not to so'e s'aller *roup
within the 5ar. . . .
3' Relevance
4s a second point of /procedural/ a*ree'ent" we believe all lawyers accept
the idea that so'e set of special de'ands is 'ade on the' -- which we now
characteri,e as /ethics/ and /professionalis'/ -- even if their substance re'ains
controversial. . . .
4' F"nctions
Iespite an inevitable focus on actions rather than attitudes" the de'ands of
professionalis'" whatever they 'ay be in detail" serve two functions that can have an
i'pact on attitudes. First" if it were well-defined" professionalis' would help the 5ar
attract people to the profession who already have the values we hope will continue
within it. &his could in turn have both positive and ne*ative effects+ on the one hand"
it would allow e.perienced lawyers to save the ti'e involved in preachin* those
values to new entrantsK on the other" that /saved/ ti'e would be a loss to the
profession6s sense of its herita*e" and therefore to professionalis'. Second" a*ain if it
were well-defined" professionalis' would announce to all new entrants into the
profession that the 5ar6s conte'porary 'oral diversity and co'petitiveness" while
consistent with the 'ini'al standards of the Model Code and Model )ules"
nevertheless have their li'its. 7n other words" so'e aspirational" professional values
would be e.pected to be held by each lawyer re*ardless of his or her personal
proclivities or desires.
&he central issue in the professionalis' debate" then" beco'es+ ?hat are
those values or aspirations that we 'ust all share@
1>
R R R R R R R R R
&he authors of this article su**est so'e answers to their =uestions of shared
values of professionalis'' (ry yo"r hand at answerin$ this 0"estion for yo"rself' hat
are some of the basic val"es that all attorneys m"st or sho"ld share9 !a#e a list to
disc"ss in class.
1L
CHAPTER II
PROFESSIONAL REGULATION
4s we have seen in Chapter 7" lawyers" by virtue of their position" 'ay be
entitled 2and perhaps re=uired3 to act for clients in ways which 'i*ht not be acceptable
if not actin* in such capacity. <ow far" however" can lawyers *o@ <ow far should they
*o@ &he possible answers derivin* fro' perceptions of role were addressed in
Chapter 7. &his Chapter will address the 'ore for'al constraints on attorney conduct.
&here are 'any sources of /law/ *overnin* conduct by attorneys. 4s citi,ens"
attorneys are sub8ect to the /positive/ law of the 8urisdictions in which they practice.
&hus" in so'e instances" cri'inal statutes relatin* to per8ury" conflict of interest and
related 'atters 'ust be consulted. Court and a*ency rules of practice" procedure and
evidence 'ay provide *uidance as well. 7n addition" so'e *uidance 'ay be found in
court decisions in 'alpractice" dis=ualification" and ineffective-assistance-of-counsel
cases.
&he pri'ary source of *uidance for attorneys" however" is found in the rules
developed by the 5ar. &hose rules are currently e'bodied in the Model )ules of
(rofessional Conduct. &he Model )ules were initially adopted by the 454 in 1D% to
supersede the Code of (rofessional )esponsibility" which had been adopted in so'e
for' in 0 states. &he Model )ules have been adopted in the lar*e 'a8ority of states
2althou*h a few states have e.plicitly re8ected the'3. &he )ules were adopted in
Missouri 2effective Manuary 1" 1DL3 and Kansas 2effective March 1" 1DD3. &he
Missouri and Kansas rules are available on the dis- that acco'panies the Standards
Supple'ent.
&he Code was written by the 4'erican 5ar 4ssociation in 1L to replace the
then-e.istin* Canons of (rofessional 1thics. &he Code" in effect fro' 1L throu*h
1D%" was divided into three parts+ Canons" Iisciplinary )ules and 1thical
Considerations. &he )ules re8ected this %-part approach and contain instead /blac-
letter/ rules and co''entary. Neither the )ules nor the Code provide sanctions for
violation of its proscriptions. &hese are left to the courts which supervise enforce'ent.
7n the late 1$;s" a Co''ission 2co''only called 1thics #$$$3 co'pleted
study of possible revisions to the Model )ules and reco''ended nu'erous chan*es
to those )ules. &he 454 <ouse of Iele*ates adopted so'e of the chan*es at its
'idyear 'eetin* in February #$$#. 4dditional chan*es were adopted in #$$%. ?e will
be studyin* the current 454 )ules 2which can be found in the Standards Supple'ent3"
but we will also be referrin* to the Missouri and Kansas versions of the rules. 5oth the
Missouri and Kansas Supre'e Courts adopted versions of the a'ended rules effective
Muly 1" #$$!. 5oth 8urisdictions adopted 'ost of the chan*es" but there are still so'e
si*nificant differences between the 454 rules and the Missouri and Kansas versions of
the rules.
4t this point" read thro"$h the !odel R"les to $et a sense of their str"ct"re and
approach' 7t 'ay also be desirable to co'pare the structure of the )ules to that of the
1!
Code.
&he Code was heavily critici,ed on 'any *rounds" a'on* the' its failure to set
out *uidin* principles" its inability to provide any real *uidance to lawyers in 'a-in*
difficult decisions" its failure to ta-e into account the realities of present day law
practice" and its over-protectiveness of lawyers. &he Model )ules were drafted in an
atte'pt to 'eet these criticis's" but" partly as a function of co'pro'ises durin* the
adoption process" there is so'e =uestion as to whether this effort was successful. &he
'ost recent chan*es reflect chan*es in practice as well as a response to corporate
crises such as 1nron. 4lthou*h 'a8or overhaul of the )ules was considered" in 'ost
areas" a'end'ents were 'ore in the nature of tin-erin* rather than 'a8or structural
chan*e.
1. ?hy should we have a code of professional conduct@ ?hat purposes
should it serve@ ?hose interests should it protect@ ?hat principles should be
reflected" and how should these be prioriti,ed@ ?hat are the priorities reflected in the
current )ules@ <ave they chan*ed in the last few years@ Can you identify the
prioriti,ation of principles@ 7s it consistent@ 7f not" why not@ <ow should it be
chan*ed@
#. ?ho should re*ulate lawyers@ &he profession@ &he state@ &he 8udiciary@
Consu'ers of le*al services@ So'e co'bination of the above@ ?ho re*ulates other
trades and professions@ 7s there anythin* uni=ue about law which re=uires a particular
for' of re*ulation@
%. ?hose values should a professional code reflect@ Can a code of conduct
be ethically neutral@ Should it@ 7f not" whose ethics and values should be e'bodied
therein@ Can one code of conduct *overn the practice of law in diverse settin*s by
diverse *roups of professionals@ 7f it 'ust" 'ust we insure representation by the 'any
factions within the 5ar in the draftin* of such a code@ 7s a code drafted by the
or*ani,ed 5ar necessarily a /political/ docu'ent@
0. <ow specific should a code be@ Should it be a collection of /do6s/ and
/don6t6s/ or a docu'ent to /sensiti,e lawyers to the scope" depth and co'ple.ity of the
co''it'ents that they have underta-en in enterin* the profession/ and to act as /a
catalyst for a continuin* discourse on the profession6s raison d;etre@/ See Fran-el"
)oo# Review, Code of Professional Responsibility, 0% U. Chi. L. )ev. D!0 21!L3.
Should it be a docu'ent reflectin* and rationali,in* the underlyin* principles of the
profession@ Should it be aspirational" or 'erely set lower li'its of conduct@ ?hat are
the costs and benefits of either approach@
>. ?here can attorneys *o for *uidance if the Code or )ules are not crystal
clear in their resolution of a professional responsibility proble'@ &here are several
sources of help for attorneys with professional responsibility proble's" althou*h a
necessary first step is consultin* the Code or )ules.
4s noted" the Code or )ules are not applicable in a 8urisdiction until adopted by
the appropriate *overn'ental body. &hey are *enerally adopted by the hi*hest court in
1D
a state as a court rule 2in Missouri" as )ule 0 of the )ules 9overnin* &he Missouri 5ar
and the Mudiciary" and in Kansas" as )ule ##L" )ules for Iiscipline of 4ttorneys3" and
decided cases can be found throu*h the annotated rules. &hese cases 'ay provide
'ore definitive interpretations of the relevant rules and *enerally have precedential
value.
&he 4'erican 5ar 4ssociation and local bar co''ittees issue opinions which
are advisory only and are not bindin* on the courts. &hey are often referred to and
relied on in court opinions" however. &he 454 Standin* Co''ittee on 1thics and
(rofessional )esponsibility will respond to re=uests for interpretations of the )ules in
for'al or infor'al ethical opinions. For'al opinions are issued on =uestions of wide
si*nificance" whereas infor'al opinions tend to respond to 'ore specific proble's.
5oth for'al and infor'al opinions of the 454 co''ittee are published. &he 454
opinions and those of 'any states and local bars are available in the 454N5N4
Manual" and 'any are available on-line. 7n addition" su''aries of recent for'al ethics
opinions can be found at http+NNwww.abanet.or*NcprNethicopinions.ht'l. Missouri
for'al and infor'al opinions are available on-line in searchable for'at at the
A(rofessionalis'B tab of the Missouri 5ar website" www.'obar.or*..
7n Missouri" Supre'e Court )ule >.%$ provides as follows+
H(7N7HNS 4NI )19UL4&7HNS 5: 4IG7SH): CHMM7&&11
2a3 &he advisory co''ittee 'ay *ive for'al opinions as to the
interpretations of )ules 0" >" and L" and the a'end'ents or additions
thereto and 'ay 'a-e re*ulations consistent therewith for the
ad'inistration of )ules 0" >" and L. For'al opinions and re*ulations of
the advisory co''ittee shall be published in the Mournal of &he Missouri
5ar after adoption thereof.
2b3 &he chief disciplinary counsel or any 'e'ber of the bar who is
substantially and individually a**rieved by any for'al opinion of the
advisory co''ittee 'ay petition this Court for review of the opinion. &he
Court in its discretion 'ay direct that the petition be briefed and ar*ued
as thou*h a petition for an ori*inal re'edial writ has been sustained"
'ay sustain" 'odify or vacate the opinion" or 'ay dis'iss the petition.
2c3 &he ethics counsel on behalf of the advisory co''ittee on re=uest
'ay *ive a 'e'ber of the bar an infor'al opinion on 'atters of special
concern to the lawyer. 7nfor'al opinions are not bindin*. ?ritten
su''aries of infor'al opinions 'ay be published for infor'ational
purposes as deter'ined by the advisory co''ittee.
24dopted Mune 1>K a'ended Septe'ber #$$#" effective Man. 1" #$$%3
7n addition to 1thical opinions and decided cases" attorneys with professional
responsibility proble's should deter'ine whether rules 2either 'andatory or advisory3
e.ist for the particular type or area of practice in which they are involved. &hese can
often be helpful when tryin* to deter'ine a course of conduct. See" e.*." 454
Standards )elatin* to the 4d'inistration of Cri'inal Mustice+ (rosecution and Iefense
1
Functions 2*uidelines3K 4'erican 4cade'y of Matri'onial Lawyers" )o"nds of
Advocacy(#$$$32http+NNwww.aa'l.or*N5oundsT#$ofT#$4dvocacyN5oundsT#$of
T#$4dvocacy.ht'32*uidelines3K S.1.C. )ule of (ractice #2e3" 1! C.F.). U#$1.1$#2e3
2'andatory rule3 and Standards for (rofessional Conduct of 4ttorneys" 1! C.F.). U#$>
2adopted in response to the Sarbanes-H.ley 4ct3.
4n i'portant resource for researchin* and resolvin* professional responsibility
issues is the )estate'ent of the Law 9overnin* Lawyers" which was adopted by the
4'erican Law 7nstitute. &he )estate'ent is beco'in* an i'portant source of
*uidance for lawyers. 7t can be found in the Standards Supple'ent and should be
consulted re*ularly as part of your readin* for the course. 7n addition" relevant cases
and articles can be found usin* the 454N5N4 Manual on Lawyer;s (rofessional
Conduct and the 454;s 4nnotated Model )ules of (rofessional Conduct. Much helpful
infor'ation can also be found on the 454;s Center for (rofessional )esponsibility
website" which can be accessed at http+NNwww.abanet.or*Ncpr. Finally" assistance in
researchin* professional responsibility issues can be obtained fro' (rofessor 9lesner
Fines; website at http+NNwww.law.u'-c.eduNfacultyNprofilesN*lesnerfinesNb*f-1%.ht'.
7f research efforts fail and an advisory opinion is i'practicable" an attorney
should discuss the proble' with other reputable lawyers 2ta-in* care" of course" to
preserve confidentiality Csee Model )ules 2#$$%3" )ule 1.L2b32#3E3. 7n addition to
hopefully *ettin* sound advice" this will help to establish a *ood faith atte'pt at proper
resolution of the proble' should disciplinary action ulti'ately ensue.
#$
CHAPTER III
ADMISSION AND DISCIPLINE
I. ADMISSION
A' Introd"ction
&he power to *rant ad'ission to the practice of law is an inherent 8udicial
power. Hnly the 8udicial depart'ent of *overn'ent has power to license persons to
practice law./ ."lse v' Cri$er" %L% Mo. #L" 10! S.?.#d D>>" D>! 2en banc. 1>#3.
4d'ission to practice is *overned by the hi*hest court in each state and by the
various federal courts. &he courts *enerally establish standards for ad'ission by court
rule" and dele*ate to a 5oard of Law 1.a'iners the power to ad'inister the rules and
pro'ul*ate re*ulations consistent therewith. 7n Missouri" the rules are found in
Supre'e Court )ule D. 4 co'prehensive *uide to bar ad'issions in all states is
available at the National Conference of 5ar 1.a'iners website and can be accessed
and downloaded at http+NNwww.ncbe..or*Nco'prehensive-*uide-to-bar-ad'issionsN.
&he states have broad powers to establish rules for ad'ission" sub8ect to
Fourteenth 4'end'ent constraints.
Schware v' )oard of )ar E%aminers" %>% U.S. #%# 21>13+
4 State cannot e.clude a person fro' the practice of law or fro' any other
occupation in a 'anner or for reasons that contravene the Iue (rocess or
1=ual (rotection Clause of the Fourteenth 4'end'ent. . . . 4 State can re=uire
hi*h standards of =ualification" such as *ood 'oral character or proficiency in
its law" before it ad'its an applicant to the bar" but any =ualification 'ust have
a rational connection with the applicant6s fitness or capacity to practice law. . . .
Hbviously an applicant could not be e.cluded 'erely because he was a
)epublican or a Ne*ro or a 'e'ber of a particular church. 1ven in applyin*
per'issible standards" officers of a State cannot e.clude an applicant when
there is no basis for their findin* that he fails to 'eet these standards" or when
their action is invidiously discri'inatory.
7n In re Ale%ander" D$! S.?.#d !$" cert' denied" >$# U.S. DD> 2113" the only
reported case in Missouri addressin* law student re*istration" the Court stated+
&he purpose of )ule D is to e.clude fro' the practice of law those persons
possessin* traits that are li-ely to result in in8ury to future clients" obstruction of
the ad'inistration of 8ustice" or a violation of the ethical standards established
for 'e'bers of the bar. CHneE 'ust possess *ood 'oral character to be
ad'itted to the 5ar and 'ust =ualify hi'self by the lon* preparation and study
prescribed. <e 'ust de'onstrate his =ualifications by passin* strict tests. &o
properly do his part as an officer of the court in the ad'inistration of 8ustice" his
conduct 'ust confor' to a hi*h standard of ethics. 4nythin* less than these
standards 'ay brin* disrepute upon the le*al profession" i'pair the standin* of
the courts and i'pede the ad'inistration of 8ustice.
#1
)' Re0"irements for Admission
&ypically" states re=uire a showin* of proficiency in the law" nor'ally throu*h
the passa*e of a bar e.a'ination. See, e'$'" Missouri Supre'e Court )ule D.$D. 7n
addition" they re=uire that the applicant for ad'ission be /of *ood 'oral character./
See Missouri )ule D.$>. Missouri Supre'e Court )ule D.10 states+
&he practice of law in this state is a privile*e. &he burden of de'onstratin* that
the re=uire'ents of this )ule D have been 'et shall be upon the applicants.
?hile the United States Supre'e Court has been unwillin* to /enter into a discussion
whether the practice of law is a /ri*ht/ or privile*e/" Schware v' )oard of )ar
E%aminers" %>% U.S. at #%" n.>" it has upheld placin* the burden of provin*
co'pliance with necessary re=uire'ents on the applicant. :oni$sber$ v' State )ar of
California" %>% U.S. #># 21L13.
1' Proficiency
&here have been 'any challen*es to the denial of ad'ission based on failure
of the bar e.a'ination" but these have not fared well in the courts. 7llustrative is
.arper v' 2istrict of Col"mbia Committee on Admissions" %!> 4.#d #> 2I.C. 1!!3+
Ne.t" we consider the contention that there is no valid relationship
between the e.a'ination and the practice of law within the Iistrict of Colu'bia.
Such a challen*e has been raised in various states and unifor'ly re8ected by
the reviewin* courts. &he Fifth Circuit =uoted )an#s v' !iller as follows+ &he
relevant =uestion 'ust then be whether the passin* of an e.a'ination 'ade up
of sub8ective essay-type =uestions has a rational connection with the
applicant6s ability to practice law in the State of 9eor*ia. 7t is beyond =uestion
that it does. ?hile plaintiff would apparently favor a 'ore ob8ective type of
e.a'ination" 'uch of an attorney6s actual wor- once ad'itted into practice
involves the analysis of co'plicated fact situations and the application thereto
of abstract le*al principles. 5oth in le*al practice and with these essay-type
=uestions" reco*nition of the le*al proble' presented and well-reasoned
e.plication of the relevant considerations is of ut'ost i'portance. ?e have no
hesitation in concludin* that the Co''ittee6s essay e.a'ination has a rational
relationship to the practice of law in the Iistrict of Colu'bia and hence is a
valid prere=uisite to ad'ission to the 5ar.
Challen*es based on ob8ective =uestions have fared no better. See, e'$', In re
Revision of the !ontana )ar E%am" !#$ (.#d #D> 21DL3 2re8ectin* challen*e to use of
the Multistate 5ar 1.a'3.
?hat is proficiency@ ?hat level of perfor'ance on the bar e.a' is sufficient to
de'onstrate proficiency@ ?hile the Missouri Supre'e Court recently reduced the
passin* score for Missouri" that decision buc-s the national trend. Many 8urisdictions
have increased their 'ini'u' passin* scores. <ow should a 8urisdiction deter'ine its
passin* score@ See Amendments to R"les of the S"preme Co"rt Relatin$ to
##
Admissions to the )ar" 843 So.2d 245 (Fla. #$$%3" where the Court relied on an
e.pert to deter'ine the appropriate score to assess proficiency. ?hat considerations
should *o into settin* the pass rate@
Hf e=ual or *reater i'portance" does the bar e.a' ade=uately test the
characteristics necessary for *ood lawyerin*@ 7f not" how else could bar authorities
deter'ine proficiency@ &he bar e.a' has co'e under fire in recent years. Consider
the followin*+
Society of 4'erican Law &eachers State'ent on the 5ar 1.a'
># M. Le*. 1d. 00L 2#$$#3 2http+NNwww.saltlaw.or*Npositionbare.a'.ht'3
2footnotes o'itted3
Su''ary+
5ar e.a'inations" as currently ad'inistered"
V fail to ade=uately 'easure professional co'petence to practice law"
V ne*atively i'pact law school curricular develop'ent and the law school
ad'ission process" and
V are a si*nificant barrier to achievin* a 'ore diverse bench and bar.

)ecent efforts in so'e states to raise the re=uisite passin* scores only serve to
a**ravate these proble's. 7n response to these and other concerns outlined
below" the Society of 4'erican Law &eachers 2S4L&3" the lar*est 'e'bership
or*ani,ation of law professors in the nation" stron*ly ur*es states to consider
alternative ways to 'easure professional co'petence and license new
attorneys.
&he Current 5ar 1.a' 7naccurately Measures
(rofessional Co'petence to (ractice Law
4lthou*h the history of the bar e.a'ination e.tends bac- to the 'id-
1D$$s" when law school attendance was not a prere=uisite for a law license" the
present bar e.a'ination for'at Q a #$$ =uestion" 'ultiple choice" 'ulti-state
e.a' 2the M513" co'bined with a set of essay =uestions on state law Q dates
only fro' the early 1!$s. 7n creatin* the M51" the National Conference of 5ar
1.a'iners was respondin* to states; desires to find a ti'e- and cost-efficient
alternative to ad'inisterin* their own co'prehensive essay e.a's. More
recently" so'e states have adopted a Awritten perfor'anceB test in addition to
the M51" state essay e.a' =uestions" and the 'ultiple choice ethics e.a'
2M()13.
&he stated purpose of the bar e.a'ination is to ensure that new
lawyers are 'ini'ally co'petent to practice law. &here are 'any reasons why
the current bar e.a'ination fails to achieve its purpose. First" despite the
inclusion of 'ultiple sections" the e.a' only atte'pts to 'easure a few of the
'any s-ills new lawyers 'ust possess in order to co'petently practice law. 4
blue ribbon co''ission of lawyers" 8ud*es and acade'ics issued a report 2&he
MacCrate )eport3 detailin* the s-ills and values that co'petent lawyers should
#%
possess. &he bar e.a'ination does not even atte'pt to screen for 'any of the
s-ills identified in the MacCrate )eport" includin* -ey s-ills such as the ability to
perfor' le*al research" conduct factual investi*ations" co''unicate orally"
counsel clients and ne*otiate. Nor does it atte'pt to 'easure other =ualities
i'portant to the profession" such as e'pathy for the client" proble'-solvin*
s-ills" the bar applicant;s co''it'ent to public service wor- or the li-elihood
that the applicant will wor- with underserved co''unities.
Second" the e.a'ination overe'phasi,es the i'portance of
'e'ori,in* le*al doctrine. Me'ori,in* le*al rules in order to pass the bar
e.a'ination does not *uarantee that what is 'e'ori,ed will actually be
retained for any len*th of ti'e after the e.a'. Me'ori,ation of le*al
principles so that one can answer 'ultiple-choice =uestions or spot issues on
an essay e.a' does not 'ean that one actually understands the law" its
intricacies and nuances. 7n fact" practicin* lawyers who rely upon their 'e'ory
of the law" rather than upon le*al research" 'ay be sub8ected to 8udicial
sanctions and 'alpractice clai's. :et" a lar*e part of successfully ta-in* the
bar e.a'ination depends upon the bar applicant;s ability to 'e'ori,e hundreds
of le*al rules. &he ability to 'e'ori,e the law in order to pass the bar
e.a'ination is si'ply not a 'easure of one;s ability to practice law.
&hird" the e.a' assesses bar applicants; ability to apply the law in
artificial ways that are unrelated to the practice of law. 7n 'ost states" up to one
half of the total bar e.a'ination score is based upon the Multi-State 5ar 1.a'
2M513. &his si.-hour" #$$-=uestion" 'ultiple-choice test covers the
'a8orityN'inority rules in si. co'ple." substantive le*al areas. 7n answerin* the
=uestions" the e.a'inee 'ust choose the A'ost correctB" or in so'e cases" the
Aleast wron*B of four answers. No practicin* lawyer is faced with the need to
apply a 'e'ori,ed le*al principle to a set of facts she has never seen before
and then choose" in 1.D 'inutes" the A'ost correctB of four *iven answers. No
lawyer can co'petently 'a-e decisions without 'ore conte.t for the case and
without the opportunity to as- 'ore =uestions or to clarify issues. :et" if a bar
applicant cannot successfully ta-e 'ultiple-choice tests" the applicant 'ay
never have the opportunity to practice law.
Fourth" a substantial portion of the e.a'ination does not test the law of
the ad'inisterin* state. &he M51 =uestions are based upon the
'a8orityN'inority rules of law that 'ay" or 'ay not" be the sa'e as the law in
the ad'inisterin* state. 7n addition" 'any states have now adopted the Multi-
State 1ssay 1.a' 2M113" which is also based upon 'a8ority rules rather than
the ad'inisterin* state;s law. 7n all states" up to one-half of the e.a'ination is
not based upon the ad'inisterin* state;s own lawsK in so'e states" the entire
e.a'ination re=uires no -nowled*e of the particular ad'inisterin* state;s
*overnin* law. &hus" even if one believes that 'e'ori,in* the law e=uates to
A-nowin*B the law" the e.istin* e.a'ination does not test how well the applicant
-nows the law which he or she will actually use in practice.
Fifth" the e.a'ination covers a very wide ran*e of substantive areas"
thus failin* to reco*ni,e that today;s practitioners are" by and lar*e" specialists
not *eneralists. 4lthou*h so'e basic -nowled*e of a broad ran*e of fields is
i'portant" the current e.a'ination does not test for basic -nowled*e" but
instead often tests relatively obscure rules of law. 7n the 'odern le*al world" it
is virtually i'possible" even for the 'ost dili*ent" s-illed and e.perienced
#0
lawyer" to truly re'ain current in 'ore than one or two related fields. &he
e.a'ination thus fails to test for co'petence as it is really reflected in today;s
'ar-et - a 'ar-et in which lawyers need e.pertise in their specific area of
practice" rather than a broad but shallow -nowled*e of a wide ran*e of le*al
rules.
Si.th" 'ost law students ta-e a ten-wee- bar review course" and so'e
ta-e an additional course on essay writin* or on how to ta-e 'ultiple-choice
=uestions" in order to pass the bar e.a'ination. &hese review courses" which
'ay cost as 'uch as W%"$$$" drill bar applicants on the blac- letter law and
Atric-sB to answerin* bar e.a'ination =uestions. &hey are not *eared toward
fosterin* an in-depth understandin* of i'portant le*al concepts" nor do they
focus on synthesi,in* rules fro' various substantive areas. &he content of the
review courses" and the necessity of ta-in* the courses in order to pass" belie
the ar*u'ent that the bar e.a'ination is *eared toward testin* professional
co'petence or aptitude in any 'eanin*ful way.
&he Current 5ar 1.a' has a Ne*ative 7'pact on Law School Curricular
Ievelop'ent and the Law School 4d'ission (rocess
7n addition to failin* to 'easure professional co'petence in any
'eanin*ful way" the bar e.a'ination has a pernicious effect on both law school
curricular develop'ent and on the law school ad'ission process. Fro' the
'o'ent they enter law school throu*h *raduation" law students reali,e that
unless they pass the bar e.a'ination" their substantial financial co''it'ent
and their years of hard wor- will be wasted. 4s a result" 'any students
concentrate on learnin* pri'arily what they need to -now in order to pass the
bar e.a'ination" which often translates into hi*h student attendance in courses
that address the substantive law tested on the bar e.a'ination and reduced
participation in clinical courses Q the courses desi*ned to introduce students to
the s-ills re=uired for the actual practice of law Q and in courses such as
environ'ental law" poverty law" civil ri*hts liti*ation" law and econo'ics" and
race and the law. 4s a result" the students fail to fully en*a*e in a law school
e.perience that will *ive the' both the practical s-ills and the 8urisprudential
perspective that will 'a-e the' better lawyers.
7n addition to bein* a drivin* force in the law school curriculu'" the bar
e.a'ination inevitably influences law school ad'ission decisions. Schools
want to ad'it students who will pass the bar e.a'ination. 4 hi*h bar pass rate
bodes well for alu'ni contributions" is perceived to play an i'portant role in
U.S. News and ?orld )eport ran-in*s" brin*s a sense of satisfaction to the
faculty" eases students; fears about their own ability to pass the e.a'ination"
and 'a-es it easier to attract new students. Since there is so'e correlation
between LS4& scores and bar e.a'ination passin* scores" law school
ad'ission officers 'ay be overly reliant on LS4& scores in ad'ittin* students.
4s Iean Kristin 9len notes" A7f you ta-e students who -now how to ta-e a test
al'ost e.actly li-e the bar e.a'ination and -now how to ta-e it successfully" as
the LS4C study tells us is the case with the LS4&" you don;t actually have to do
'uch with those students in law school to assure their success on the bar
e.a'ination.B &hus" 'any schools 'ay over-e'phasi,e the value of the LS4&"
at the e.pense of ad'ittin* students who will brin* a broader perspective into
the student body" into law school classes" and ulti'ately" into practice.
#>
Finally" the bar e.a'ination has a ne*ative i'pact on how law schools
assess students. Li-e the bar e.a'ination" 'ost law school *rades are based
upon a one-ti'e A'a-e it or brea- itB e.a'ination that focuses on only a very
few of the 'any s-ills that co'petent lawyers need. 7f the bar e.a'ination
assessed a broader ran*e of s-ills" or assessed s-ills in various ways" law
schools 'i*ht also ad8ust their assess'ent 'odalities so that they were not all
*eared toward rewardin* 8ust one type of s-ill or intelli*ence. 7n su'" fro' the
ad'ission process" throu*h curriculu' choices and law school assess'ent
'odalities" the bar e.a'ination has a far-reachin* ne*ative peda*o*ical effect.
&he Current 5ar 1.a' Ne*atively 4ffects States;
4bility to Create a More Iiverse 5ench and 5ar
7n the 1D$s and 1$s" 'any states and federal circuits established
co''issions on racial and *ender e=uality. 4fter e.tensive study" 'any of
these co''issions concluded that people of color were under-represented in
the le*al profession on both a state and national level" that there is a perception
of racial and ethnic bias in the court syste'" and that there is evidence that the
perception is based upon reality. &o be*in to achieve a 'ore racially and
ethnically balanced 8ustice syste'" 'any co''issions reco''ended that
states ta-e affir'ative steps to increase 'inority representation in the bench
and bar.
&here are 'any reasons for states to want a 'ore diverse bench and
bar. 4 diverse bench and bar i'proves public perceptions about the 8ustice
syste'. 7t also positively i'pacts the availability of le*al services for
underserved se*'ents of our population. 4dditionally" a 'ore diverse bar is
li-ely to be a 'ore publicly-'inded bar. 4 University of Michi*an study found
that a'on* *raduates who enter private practice" A'inority alu'ni tend to do
'ore pro bono wor-" sit on the boards of 'ore co''unity or*ani,ations" and
do 'ore 'entorin* of youn*er attorneys than white alu'ni do.B
&he failure of the current bench and bar to be as diverse as it could be
is partly attributable to the e.istin* bar e.a'ination. &he current e.a'ination
disproportionately delays entry of people of color into" or e.cludes the' fro'"
the practice of law. 4 si.-year study co''issioned by the Law School
4d'ission Council 2LS4C3 indicates that first-ti'e bar e.a'ination pass rates
are #T for whites" L1T for 4frican 4'ericans" LLT for Native 4'ericans" !>T
for LatinoNLatina and D1T for 4sian 4'ericans. 4lthou*h the disparity between
pass rates narrowed when applicants re-too- the bar e.a'ination" a substantial
nu'ber of applicants who failed on the first atte'pt did not re-ta-e the e.a'.
4nd for those who did re-ta-e the e.a'ination" the psycholo*ical and financial
cost of doin* so was e.tre'ely hi*h.
Iespite the disparate i'pact that the bar e.a'ination has on people of
color" nu'erous states have raised" or are considerin* raisin*" the passin*
scores on their bar e.a'inations. Many states have hired Stephen Klein"
(h.I." the National Conference of 5ar 1.a'iners; chief psycho'etric
consultant" to help the' set a new passin* score and to help the' deter'ine
the effect of the hi*her score on 'inority passin* rates. Klein has concluded
that raisin* the passin* score on the bar e.a'ination will not disproportionately
affect 'inority bar applicants. Serious flaws appear to e.ist both in the
'ethodolo*y Klein uses to set new passin* scores and in his contention that
#L
hi*her passin* scores will not disproportionately i'pact people of color. 7n fact"
one co''entator has found that not only will raisin* the passin* score have a
disparate i'pact on the bar passa*e rate for people of color" the decision to
raise bar passin* scores also correlates with ad'ission officers puttin* 'ore
wei*ht on the LS4&" rather than on under*raduate 9(4s" thereby widenin* the
law school ad'ission *ap between white students and students of color.
1ven if the bar e.a'ination were a valid screenin* device" one would
have to as- whether its disproportionate i'pact on people of color could be
8ustified. 9iven that the bar e.a'ination is not a *ood 'easure for deter'inin*
professional co'petency" it is si'ply wron* to retain it without tryin* to find a
better assess'ent tool.
4lternatives
?e cannot hope to e.haust all the possible alternatives to the bar e.a'
in this brief docu'ent. 5ut preli'inarily" S4L& reco''ends that states be*in to
e.plore one or 'ore of the followin* alternatives+
1. &he Iiplo'a (rivile*e. &his 'ethod of licensure" currently used in
?isconsin" *rants a law license to all *raduates of the state;s 454 accredited
law schools.
#. 4 (ractical S-ills &eachin* &er'. Usin* this 'ethod of licensure"
states could re=uire satisfactory co'pletion of a ten-wee- teachin* ter'" si'ilar
to one phase of the licensin* re=uire'ents in so'e Canadian provinces.
Iurin* the Canadian teachin* ter'" bar applicants 'ust pass two" three-hour
tests which assess their -nowled*e of basic principles in ten substantive areas.
&hey also receive trainin* and 'ust receive a passin* *rade on assess'ents in
interviewin*" advocacy" le*al writin* and le*al draftin* s-ills.
%. &he (ublic Service 4lternative to the 5ar 1.a' 2(S4513. States
could adopt the pilot pro8ect proposed by Iean Kristin 9len" in which bar
applicants are *iven the option of either ta-in* the e.istin* bar e.a' or wor-in*
for %>$ hours over ten wee-s within the court syste' and satisfactorily
co'pletin* a variety of assi*n'ents in which co'petence on all of the
MacCrate )eport s-ills are evaluated by trained court personnel and law school
clinical teachers.

0. Co'puter-5ased &estin*. States also should be*in e.plorin* the
use of co'puter based testin* as another potential way to assess a broader
ran*e of s-ills and to 'easure the s-ills in ways that better reflect the practice
of law.
&hese alternatives" and others that 'i*ht be developed" can provide
states with options other than the current e.a'ination to 'easure the
co'petence of nascent lawyers. S4L& reco''ends that states be*in to study
and e.peri'ent with these and other alternatives to the e.istin* bar e.a' so as
to a'eliorate the pernicious effects of the e.istin* e.a'ination structure.
Conclusion
&he bar e.a'ination" by testin* a narrow ran*e of s-ills" and testin*
the' in a way unrelated to the practice of law" fails to 'easure in any
#!
'eanin*ful way whether those who pass the e.a'ination will be co'petent
lawyers. 7n addition to not 'easurin* what it purports to 'easure" the
e.a'ination ne*atively i'pacts the law school ad'ission process" as well as
course curriculu' and content" and i'pedes the attain'ent of a 'ore diverse
bench and bar. )aisin* the passin* score on the bar e.a'ination e.acerbates
these ne*ative effects. &hus" S4L& stron*ly opposes the 'ove to increase the
passin* score on the bar e.a'ination. Maintainin* the status =uo is not
enou*h. S4L& reco''ends that states 'a-e a concerted" syste'atic effort to
e.plore better ways of 'easurin* lawyer co'petency without perpetuatin* the
ne*ative effects elaborated above.
Io you a*ree with the criticis's e.pressed@ ?hat about the proposed alternatives@
Io you thin- such alternatives are feasible@ Iesirable@ ?hy or why not@
Can you structure a better bar ad'issions process@ ?hat would it loo- li-e@ ?hat are
the i'pedi'ents to adoptin* such a syste'@
3' *ood !oral Character
&he 'ore co''on le*al challen*es arise where the 5oard finds that an
applicant has failed to 'eet his or her burden of proof on the issue of *ood 'oral
character and denies ad'ission accordin*ly. 9ood 'oral character is a difficult ter' to
define. 7t had" in the past" been used to -eep out" or at least sub8ect to close scrutiny"
those who were not viewed to be in the 'ainstrea'. &here are those who thin- it still
does. 4s you read the followin*" thin- about what ou*ht to constitute A*ood 'oral
characterB and what characteristics reflect absence of that character. &hin- also about
the costs and benefits of character screenin*. Ioes such screenin* *o too far" or not
far enou*h@
In re Eimers" %>D So. #d ! 2Fla. 1!D3+
&he Florida 5oard of 5ar 1.a'iners 2the 5oard3 has re=uested certain
infor'ation for its *uidance in deter'inin* the ad'issibility of an applicant to
&he Florida 5ar.
&he =uestion which has been sub'itted by the 5oard with re=uest for
this Court6s answer is+
?hether an applicant with an ad'itted ho'ose.ual orientation who is
fully =ualified for ad'ission to &he Florida 5ar in all other respects can
=ualify for ad'ission under the provisions of 4rticle 7G" Section 1" of the
)ules of the Supre'e Court of Florida )elatin* to 4d'ission to the 5ar"
which section places a strict prohibition a*ainst any reco''endation by
the 5oard to the Supre'e Court for ad'ission to &he Florida 5ar for a
person not deter'ined to be of *ood 'oral character.
?e answer this =uestion in the affir'ative" notin* that our response is li'ited to
situations in which the applicant6s se.ual orientation or preference is at issue.
&his opinion" then" does not address itself to the circu'stance where evidence
establishes that an individual has actually en*a*ed in ho'ose.ual acts.
#D
&he applicant in the instant case is a *raduate of an accredited law
school" is certified for ad'ission to the (ennsylvania 5ar" and has passed all
parts of &he Florida 5ar e.a'ination. &he Florida 5oard of 5ar 1.a'iners has
found hi' =ualified for ad'ission to &he Florida 5ar in all respects with the
possible e.ception that he 'ay fail to 'eet the /*ood 'oral character/ standard
for ad'ission due to his ho'ose.ual preference.
&he applicant ad'itted his ho'ose.ual preference in response to
in=uiry 'ade at a hearin* before the 5oard. <e was not =uestioned about what
se.ual acts he 'ay have en*a*ed in. Further" no evidence was presented
indicatin* that the applicant has acted or plans to act on his se.ual preferences.
&he United States Supre'e Court described the ter' /*ood 'oral
character/ as /unusually a'bi*uous/+
&he ter' /*ood 'oral character/ has lon* been used as a =ualification
for 'e'bership in the 5ar and has served a useful purpose in this
respect. <owever the ter'" by itself" is unusually a'bi*uous. 7t can be
defined in an al'ost unli'ited nu'ber of ways for any definition will
necessarily reflect the attitudes" e.periences" and pre8udices of the
definer. Such a va*ue =ualification" which is easily adapted to fit personal
views and predilections" can be a dan*erous instru'ent for arbitrary and
discri'inatory denial of the ri*ht to practice law. 2Footnotes o'itted3
Koni*sber* v. State 5ar of California" %>% U.S. #>#" #L#-#L% 21>!3.
?ary of the state6s capacity to arbitrarily deny an applicant ad'ission to
a state bar" the Supre'e Court reco*ni,ed as early as 1DLL that the reasons
for denyin* ad'ission should be related to the purposes for e.clusion. 1. parte
9arland" !1 U.S. 20 ?all.3 %%% 21DLL3 2test oath re=uired of all candidates for
ad'ission to the bar bore no relation to the =ualifications necessary for the
profession3K cf. 7n re )ouss" ##1 N.:. D1" D>" 11L N.1. !D#" !D% 211!3.
<owever" as lon* as there was a rational connection between the =ualification
and the applicant6s ability to practice law" courts could e.clude inco'petent and
ini=uitous persons fro' the le*al profession to protect clients and to assure a
credible bar.
1lucidatin* upon these principles in the land'ar- case of Schware v.
5oard of 5ar 1.a'iners" %>% U.S. #%# 21>!3" the Supre'e Court held that+
4 State cannot e.clude a person fro' the practice of law or fro' any
other occupation in a 'anner or for reasons that contravene the Iue
(rocess or 1=ual (rotection Clause of the Fourteenth 4'end'ent. . . . 4
State can re=uire hi*h standards of =ualification" such as *ood 'oral
character or proficiency in its law" before it ad'its an applicant to the bar"
but any =ualification 'ust have a rational connection with the applicant6s
fitness or capacity to practice law. 21'phasis added3
7d. at #%D-#%.
&hus" in deter'inin* fitness for ad'ission to the bar" state courts 'ust
now 'eet the standard i'posed by the due process clause found in the
Fourteenth 4'end'ent. 7n the instant case" the issue which 'ust be resolved
#
is whether there is a rational connection between ho'ose.ual orientation and
fitness to practice law.
7n assessin* the reasonableness of the relation between ho'ose.ual
orientation and 'oral unfitness to be an attorney" we 'ust 'a-e reference to
the purposes pro'oted by ostraci,in* the 'orally unfit. &he lay'an 'ust have
confidence that he has e'ployed an attorney who will protect his interests. See
Irin-er" Le*al 1thics" p. D-1DD 21>%3. Further" society 'ust be *uaranteed
that the applicant will not thwart the ad'inistration of 8ustice. &hese e.i*encies
arise because the technical nature of law provides the unscrupulous attorney
with a fre=uent vehicle to defraud a client. Further" the lawyer can obstruct the
8udicial process in nu'erous ways" e. *." by reco''endin* per8ury"
'isrepresentin* case holdin*s" or atte'ptin* to bribe 8ud*es or 8urors.
Conse=uently" if an applicant has co''itted certain ille*al acts in the past" he
'ay represent a future peril to society which would 8ustify denyin* the applicant
ad'ission.
7n the instant case" however" we cannot believe that the candidate6s
'ere preference for ho'ose.uality threatens these societal e.i*encies. 7n a
related conte.t" we note that for'er Mustice 1rvin in &he Florida 5ar v. Kay" #%#
So.#d %!D 2Fla.1!$3 21rvin" C. M." specially concurrin*3
R
observed+
?hile )espondent6s act definitely affronts public conventions" 7 a'
concerned as to the e.tent of the authority of the 5oard of 9overnors of
&he Florida 5ar under controllin* concepts of due process to continue
the discipline of )espondent since there is no showin* in the record of a
substantial ne.us between his antisocial act" or its notoriety" or place of
co''ission" and a 'anifest per'anent inability on )espondent6s part to
live up to the professional responsibility and conduct re=uired of an
attorney. . . .
&he present record contains no evidence scientific" 'edical" patholo*ical
or otherwise su**estin* ho'ose.ual behavior a'on* consentin* adults
is so indicative of character baseness as to warrant a conde'nation per
se of a participant6s ability ever to live up to and perfor' other societal
duties" includin* professional duties and responsibilities assi*ned to
'e'bers of &he 5ar. . . .
Since it is held in Florida that &he 5ar has 8urisdiction to discipline Florida
5ar 'e'bers concernin* their personal or private 'orals" it would
appear appropriate to re=uire that such discipline be sub8ect to a showin*
ori*inally or when reinstate'ent is sou*ht that there is a substantial
connection between a 'e'ber6s antisocial behavior and his ability to
otherwise carry out his professional responsibilities as an attorney.
Htherwise" &he 5ar will be virtually unfettered in its power to censor the
R
7n &he Florida 5ar v. Kay" supra" this Court considered the propriety of per'anently
disbarrin* an attorney who was convicted of indecent e.posure after bein* observed
en*a*in* in a he 5ar indicated that no per'anent disbar'ent was intended and he was
subse=uently read'itted to practice. ?hile we find the followin* lan*ua*e persuasive" we do
not 'ean to i'ply that we are not un'indful of the differin* standards to be 'et for
ad'issions to &he 5ar as co'pared to disciplinary or disbar'ent proceedin*s.
%$
private 'orals of Florida 5ar 'e'bers" re*ardless of any ne.us between
the behavior and the ability to responsibly perfor' as an attorney.
9overn'ental re*ulation in the area of private 'orality is *enerally
considered anachronistic in the absence of a clear and convincin*
showin* there is a substantial connection between the private acts
re*ulated and public interests and welfare. 21'phasis added3 7d. at
%!-%D1.
4ccordin*ly" we find that the applicant in the instant case is =ualified for
ad'ission to &he Florida 5ar under the provisions of 4rticle 7G" Section 1" of
the )ules of the Supre'e Court of Florida )elatin* to 4d'ission to &he Florida
5ar.
7t is so ordered.
5H:I" Mustice" dissentin*.
4pplicant ad'its he is a ho'ose.ual. 5efore a findin* on the issue of
his fitness to practice law 7 would re'and this cause to the 5oard of 5ar
1.a'iners for an in=uiry into whether he has co''itted ho'ose.ual acts of the
-ind cri'inally outlawed by Section D$$.$#" Florida Statutes. &here should not
be ad'itted to &he Florida 5ar anyone whose se.ual life style conte'plates
routine violation of a cri'inal statute.
?hat" if any" types of se.ual conduct are appropriate factors in deter'inin*
ad'ission to the 5ar@ See *enerally Se%"al Cond"ct or ;rientation as *ro"nds for
2enial of Admission to the )ar" 1$> 4.L.).>
th
#1!.
7s the *ood 'oral character standard clear enou*h to avoid i'proper discretion
by bar e.a'iners and courts@ Ioes it provide 'eanin*ful standards or reflect a
professional consensus" and if not" is its use li-ely to be inconsistent" idiosyncratic"
and needlessly intrusive. See Ieborah )hode" !oral Character as a Professional
Credential" 0 :4L1 L.M. 01 21D>3. ?hat actions of an applicant will be sufficient to
prevent a findin* of *ood 'oral character@
a. 4s late as 1!" a trial 8ud*e in Gir*inia refused to issue a certificate of *ood
'oral character to a wo'an who was livin* with a 'an to who' she was not 'arried.
&he Gir*inia Supre'e Court disa*reed" statin*+
?hile CapplicantsE livin* arran*e'ent 'ay be unorthodo. and unacceptable to
so'e se*'ents of society" this conduct bears no rational connection to her
fitness to practice law. 7t cannot" therefore" serve to deny her the certificate
re=uired by CGir*inia CodeE.
Cord v' *ibb. #>0 S.1.#d !1" !% 2Ga. 1!3. &o what e.tent" if at all" should life-style
issues affect ad'ission to the 5ar@ 7f they are to have an effect" who is to deter'ine
what is unorthodo. or appropriate@ ?hat conse=uences are there to such an
approach@
b. Ioes failure to 'eet ones obli*ations constitute lac- of *ood 'oral
character@ Several courts have said yes. See )oard of Law E%aminers v' Stevens"
%1
DLD S.?.#d !!% 2&e.. 103 2unsatisfied 8ud*'ents3K In re )easley" #0% 9a. 1%00" #>%
S.1.#d L1>" L1! 21!3 2failure to honor child support obli*ations and U)1S4 orders3K
In re .eller" %%% 4.#d 0$1 2I.C.3" cert' denied" 0#% U.S. D0$ 21!>3.
1ven where there 'ay be no le*al obli*ation 2as where a debt has been
dischar*ed in ban-ruptcy3" the facts surroundin* the dischar*e of the debt 'ay
evidence a lac- of *ood 'oral character.
Application of *ahan" #! N.?.#d D#L" D%1 2Minn. 1!3+
&he issue on appeal is whether" in view of the facts of this case and the
applicable Federal ri*hts protectin* those who elect to file voluntary ban-ruptcy"
the applicant to the Minnesota bar was properly denied ad'ission on the
*rounds of insufficient 'oral character. . . .
7nitially" we observe that persons dischar*in* their debts in ban-ruptcy
are afforded certain ri*hts under Federal law. &he fact of filin* ban-ruptcy or
the refusal to reinstate obli*ations dischar*ed in ban-ruptcy cannot be a basis
for denial of ad'ission to the bar of the State of Minnesota. 4ny refusal so
*rounded would violate the Supre'acy Clause of the United States
Constitution since applicable Federal law clearly prohibits such a result.
<owever" these constitutional li'itations do not preclude a court fro'
in=uirin* into the bar applicant6s responsibility or 'oral character in financial
'atters. &he in=uiry is i'per'issible only when the fact of ban-ruptcy is
labeled /i''oral/ or /irresponsible"/ and ad'ission is denied for that reason. 7n
other words" we cannot declare ban-ruptcy a wron* when Federal law has
declared it a ri*ht.
&hus" in the present case" 9ahan6s conduct prior to ban-ruptcy
surroundin* his financial responsibility and his default on the student loans 'ay
be considered to 8ud*e his 'oral character. <owever" the fact of his ban-ruptcy
'ay not be considered" nor 'ay his present willin*ness or ability to pay the
loans be considered because under Federal ban-ruptcy law" he now has a ri*ht
to not pay the loans.
#. 4pplicant6s Moral Character.
. . . ?e hold that applicants who fla*rantly disre*ard the ri*hts of
others and default on serious financial obli*ations" such as student loans" are
lac-in* in *ood 'oral character if the default is ne*lectful" irresponsible" and
cannot be e.cused by a co'pellin* hardship that is reasonably beyond the
control of the applicant. Such hardships 'i*ht include an unusual 'isfortune" a
catastrophe" an overridin* financial obli*ation" or unavoidable une'ploy'ent.
?e are" under the Minnesota Constitution" entrusted with the e.clusive
duty to assure the hi*h 'oral standards of the Minnesota bar. ?e have no
difficulty in concludin* that Federal law does not preclude us fro' evaluatin*
the responsibility of a bar applicant in satisfyin* his or her financial obli*ations.
&his is particularly true where" as here" the obli*ation has the si*nificance of
W10"$$$ in Federally insured student loans. 4 student loan is entrusted to a
person" and is to be repaid to creditors upon *raduation when and if financially
%#
able. Moreover" repay'ent provides stability to the student loan pro*ra' and
*uarantees the continuance of the pro*ra' for future student needs. 4 fla*rant
disre*ard of this repay'ent responsibility by the loan recipient indicates to us a
lac- of 'oral co''it'ent to the ri*hts of other students and particularly the
ri*hts of creditors. Such fla*rant financial irresponsibility reflects adversely on
an applicant6s ability to 'ana*e financial 'atters and reflects adversely on his
co''it'ent to the ri*hts of others" thereby reflectin* adversely on his fitness
for the practice of law. 7t is appropriate to prevent proble's fro' such
irresponsibility by denyin* ad'ission" rather than see- to re'edy the proble'
after it occurs and victi'i,es a client.
4pplyin* the above principles to this case" we conclude that 9ahan6s
failure to satisfy his obli*ations on the student loans cannot be e.cused for
so'e co'pellin* hardship reasonably beyond his control. Iurin* the period
prior to ban-ruptcy" he was e'ployed for 'ost of the ti'e at an annual salary of
W1>"$$$ and then W1D"$$$. Monthly" he *rossed fro' W1"#>$ to W1">$$" and he
accounted for 'onthly e.penses of appro.i'ately W>$$. &he record indicates
that his 'onthly pay'ents on the loans would be appro.i'ately W1!>. <e was
healthy" sin*le" and not sub8ect to any unusual hardship. <e was reasonably
able to satisfy his le*al and 'oral obli*ation to prepare for repay'ent and
continue repay'ent of his student loans. <is failure to do so de'onstrates lac-
of *ood 'oral character and reflects adversely on his ability to perfor' the
duties of a lawyer.
Co'pare Florida )oard of )ar E%aminers re: *''L., %L0 So.#d 0>0 2Fla. 1!D3 2facts
surroundin* applicants declaration and dischar*e in ban-ruptcy raised substantial
doubts about his honesty" fairness and respect for ri*hts of others and for law of state
and nationK application denied3 with Florida )oard of )ar E%aminers re: *root" %L>
So.#d 1L0 2Fla. 1!D3 2facts surroundin* dischar*e indicate conduct not 'orally
reprehensible in circu'stancesK application *ranted3. See also In re '2'P'" 1 (.%d
1$!D" 1$DD-1 2<aw. #$$03 2pattern of financial irresponsibility and credit history
inconsistent with *ood 'oral character3K In re Perry, D#! So.#d 1100 2La. #$$#3 2where
applicant is 'a-in* a *ood faith effort to co'ply with Chapter 1% 5an-ruptcy (lan"
conditional ad'ission appropriate3K Application of Scallon" >L (.#d D# 2Hr. 1D3
2allowin* conditional ad'ission after ban-ruptcy and fiscal irresponsibility a close
call3.
c. ?ill prior cri'inal convictions prevent a findin* of *ood 'oral character@ Not
necessarily" althou*h in Missouri" a person who has been convicted of or pleaded *uilty
to a felony shall not be eli*ible to apply for ad'ission to the 5ar until five years after
the conviction or co'pletion of sentence" whichever is later. Mo. Sup. Ct. )ule D.$>2b3.
Since present *ood 'oral character is the test" past cri'inal conduct 'ay be
instructive" but is not necessarily controllin*. Courts consider a variety of factors
relatin* to the conviction itself and the applicants conduct since conviction. See. e.*."
In re !c!illian" >>! S.1.#d %1" %## 2?G #$$13 2considerin* eleven factors3.
7llustrative is Application of A'('" #DL Md. >$!" 0$D 4.#d 1$#% 21!3" where the
applicant had several prior convictions for dru* char*es and dru* related thefts and
had served forty-four 'onths in prison+
%%
)ule #d of the )ules 9overnin* 4d'ission to the 5ar of Maryland
provides that the applicant /shall at all ti'es have the burden of provin* his
*ood 'oral character before the Character Co''ittee" the 5oard and the Court
. . . ./ ?e have said that no lit'us test e.ists for deter'inin* whether an
applicant for ad'ission to the 5ar possesses *ood 'oral character. 7n Allan S'"
the Court set forth the controllin* principles for deter'inin* whether an
applicant with a cri'inal record has the re=uisite present 'oral character
fitness to be ad'itted to the 5ar. ?e said that where" as here" an applicant for
ad'ission to the 5ar is shown to have co''itted a cri'e" the nature of the
offense 'ust be ta-en into consideration in deter'inin* whether his present
'oral character is *ood. ?e said that althou*h a prior conviction is not
conclusive of a lac- of present *ood 'oral character" particularly where the
offense occurred a nu'ber of years previous to the applicant6s re=uest for
ad'ission" it adds to his burden of establishin* present *ood character by
re=uirin* convincin* proof of his full and co'plete rehabilitation. &hus" we
observed that a prior conviction 'ust be ta-en into account in the overall
'easure'ent of character and considered in connection with other evidence of
subse=uent rehabilitation and present 'oral character. ?e said that the
ulti'ate test of present 'oral character" applicable to ori*inal ad'issions to the
5ar" is whether" viewin* the applicant6s character in the period subse=uent to
his 'isconduct" he has so convincin*ly rehabilitated hi'self that it is proper that
he beco'e a 'e'ber of a profession which 'ust stand free fro' all suspicion.
Finally" we noted the cardinal principle *overnin* applications for ori*inal
ad'ission to the 5ar is that the absence of *ood 'oral character in the past is
secondary to the e.istence of *ood 'oral character in the present.
R R R
4pplyin* the principles articulated in Allan S. to the present case" we
note" in considerin* the nature of the applicant6s offenses" that all were directly
related to his dru* addiction. Further'ore" as pointed out by the Character
Co''ittee" the applicant was a user and not a dealer in dru*s. 7n addition to
the nature of the cri'inal offenses" we 'ust consider the len*th of ti'e that has
elapsed since the cri'inal conduct occurred. 7n this case" the passa*e of ti'e
has been si*nificant and substantial. &he applicant6s last offense occurred 'ore
than thirteen years before the 5oard hearin* in Hctober of 1!. Further'ore"
the applicant has not used illicit dru*s since 4u*ust of 1L!" a period of ti'e
spannin* appro.i'ately twelve years. Finally" the applicant has been
co'pletely deto.ified fro' 'ethadone for 'ore than si. years.
4s pointed out in Allan S." the crucial 'atter upon which we 'ust focus
is the applicant6s present 'oral character fitness" as evidenced by the
convincin* record of his rehabilitation. &he record wholly supports the
conclusions of the Character Co''ittee and the 5oard that the applicant is
fully rehabilitated fro' his prior ille*al activity. 7n underta-in* to prove his
present *ood 'oral character the applicant not only presented convincin*
'edical evidence of his rehabilitation fro' dru* use" but also produced
character witnesses who *ave particularly stron* endorse'ents of his present
*ood 'oral character. <e also introduced into the record letters of
reco''endation fro' 'e'bers of the le*al and lay co''unity. &hese letters
attested to the applicant6s present *ood character and are entitled to respectful
consideration by the Court.
%0
9ivin* due consideration to the nature of the applicant6s offenses" the
ti'e of their co''ission" the circu'stances involved" the fact that the burden
rests upon the applicant to prove his *ood 'oral character" and 'ost
i'portantly" the convincin* evidence of the applicant6s rehabilitation" we thin-
that he has established the re=uisite present 'oral character fitness that
8ustifies his ad'ission to the 5ar of Maryland.
7& 7S SH H)I1)1I.
SM7&<" Mud*e" dissentin*.
7t is with re*ret that 7 once a*ain dissent fro' the ad'ission of an
individual to practice before this Court.
(art of the proble' apparently is a difference between 'y collea*ues
and 'e as to what constitutes *ood 'oral character. &hey see' to be of the
belief that one can be said to possess *ood 'oral character if he has not
violated the law lately. 7 do not see it that way. &ho'as (aine" the political
pa'phleteer of the 4'erican )evolution" observed in &he 4'erican Crisis No.
XX777 21!D%3" /Character is 'uch easier -ept than recovered./ 7 a*ree.
&he )ando' <ouse Iictionary of the 1n*lish Lan*ua*e 2unabrid*ed
ed. 1L!3 defines /character/ in pertinent part+
1. the a**re*ate of features and traits that for' the apparent individual
nature of so'e person or thin*. #. one such feature or traitK
characteristic. %. 'oral or ethical =uality . . . . 0. =ualities of honesty"
coura*e" or the li-eK inte*rity . . . . >. reputation . . . . L. *ood repute. . . .
27d. at #0!.3
?ebster6s &hird New 7nternational Iictionary 2unabrid*ed ed. 1L13
states in pertinent part on this sub8ect+
1 + . . . + reputation esp. when *ood . . . . 1$ + a co'posite of *ood
'oral =ualities typically of 'oral e.cellence and fir'ness blended with
resolution" self-discipline" hi*h ethics" force" and 8ud*'ent . . . . 27d. at
%!L.3
&he 4'erican <erita*e Iictionary of the 1n*lish Lan*ua*e 2New Colle*e ed.
1!L3 defines the ter' in pertinent part+
1. . . . %. &he co'bined 'oral or ethical structure of a person . . . . 0.
Moral or ethical stren*thK inte*rityK fortitude. >. )eputation+ . . . . 1$. 4
description of a person6s attributes" traits" or abilities. . . . 27d. at ##L.3
7n orld v' State, >$ Md. 0 21D!D3" Mud*e 9rason said for the Court+
7t was further contended that the evidence of the police officer was
inad'issible" because it related to the Character of the accused" instead
of bein* confined to his )eputation. Character and reputation are
synony'ous ter's" and we can see no ob8ection to the evidence
introduced" that the character and reputation of the accused was that of a
%>
/co''on thief/ durin* the ti'e the witness -new hi'. 27d. at >L
2e'phasis in ori*inal3.3
5lac-6s Law Iictionary 2>th ed. 1!3 states relative to character+
&he a**re*ate of the 'oral =ualities which belon* to and distin*uish an
individual personK the *eneral result of the one6s distin*uishin* attributes.
&hat 'oral predisposition or habit" or a**re*ate of ethical =ualities" which
is believed to attach to a person" on the stren*th of the co''on opinion
and report concernin* hi'. 4 person6s fi.ed disposition or tendency" as
evidenced to others by his habits of life" throu*h the 'anifestation of
which his *eneral reputation for the possession of a character" *ood or
otherwise" is obtained. &he esti'ate attached to an individual or thin* in
the co''unity. &he opinion *enerally entertained of a person derived
fro' the co''on report of the people who are ac=uainted with hi'.
4lthou*h /character/ and /reputation/ are often used synony'ously" the
ter's are distin*uishable. /Character/ is what a 'an is" and /reputation/
is what he is supposed to be in what people say he is. /Character/
depends on attributes possessed" and /reputation/ on attributes which
others believe one to possess. &he for'er si*nifies reality and the latter
'erely what is accepted to be reality at present. 27d. at #11.3 4s to *ood
character it says+ Su' or totality of virtues of a person which *enerally
for's the basis for one6s reputation in the co''unity" thou*h his
reputation is distinct fro' his character. 27d. at L#%.3
7f this youn* 'an has in fact refor'ed fro' his earlier dru* habit and
stealin*" 7 a' deli*hted. &he fact that it is believed by so'e that he will not
revert to his for'er habits" however" does not in 'y view auto'atically establish
*ood 'oral character. ?here would the 'a8ority draw the line@ 4s 8ud*es and
prior e.perienced practitioners of the law they -now that 'any ho'icides are a
once in a lifeti'e proposition in which there will be no recurrence of the
circu'stances *ivin* rise to the ho'icide. &hus" in the absence of evidence of
other violations of law" one could say that the person has refor'ed. Io 'y
collea*ues propose per'ittin* convicted 'urderers to beco'e Maryland
lawyers since they have not -illed anyone lately@
R R R
Hur re=uire'ent that a candidate show hi'self to be possessed of
*ood 'oral character is for the purpose of protectin* the public. 7n the sa'e
'anner we have said that the i'position of a sanction on an errin* attorney is
not for purposes of punish'ent of the individual lawyer but for the protection of
the public. &he practice of law often involves handlin* the funds of clients
runnin* into tens of thousands and even hundreds of thousands of dollars. &his
can and does present a te'ptation to so'e individuals" as e.perience has
a'ply de'onstrated. &herefore" 7 re*ard honesty as one of the 'ost i'portant
traits of character which should be re=uired of a prospective lawyer. <e should
be forthri*ht and honest in all of his dealin*s" but particularly where the funds
and property of others are concerned. ?hen a person is ad'itted to the 5ar he
beco'es an officer of this Court. ?hen we ad'it hi' we are in effect certifyin*
to the *eneral public that he is a person to who' the affairs of others 'ay
safely be entrusted. 7 a' not prepared at this ti'e to say that this youn* 'an is
possessed of *ood 'oral character and thus is a proper person to be an officer
of this Court.
%L
See also In re Sobin" L0 4.#d >D 2I.C. 103 2felony conviction for conspiracy to
'anufacture controlled substances and aidin* and abettin* prostitution and
rac-eteerin* not sufficient to deny ad'ission where offenses occurred a substantial
ti'e in the past and the applicant had a stron* record since that ti'e3. See $enerally,
4nnot." DD 4.L.).%d 1# 21!D3. 7t is fre=uently the facts surroundin* the offense" and
not the offense itself" which warrants denial of ad'ission. 1ven where a conviction is
reversed" the facts underlyin* the offense 'ay be the basis for denial of ad'ission.
See In re '2'P'" 1 (.%d 1$!D" 1$D% 2<aw. #$$03.
Should certain offenses bar ad'ission forever@ 7f so" which ones@ Should a
'urderer ever be allowed ad'ission to the 5ar@ &hat issue has arisen recently in
4ri,ona. See http+NNwww.cbsnews.co'NstoriesN#$$0N1$N1%NL$77N'ainL0$D0.sht'l and
http+NNwww.eastvalleytribune.co'Ninde..php@styP#%0L. &he 4ri,ona Supre'e Court
denied ad'ission in this case. See In re .amm" 1%L (.%d L># 24ri,. #$$>3" where the
court held that" althou*h persons convicted of e.tre'ely serious cri'es such as first-
de*ree 'urder are not auto'atically e.cluded fro' beco'in* 'e'bers of the bar" they
'ust 'a-e an Ae.traordinary showin* of rehabilitation and present *ood 'oral
character to be ad'itted to the practice of law.B &he court found that <a'' had not
'ade the re=uisite showin*. See also In re :in$, 1%L (.%d D!D 24ri,. #$$L3 2sa'e with
re*ard to an applicant who was convicted of atte'pted 'urder3. Co'pare In re 2ortch"
DL$ 4.#d %0L 2I.C. #$$03 2refusin* to find that applicant had 'ade a clear and
convincin* showin* of *ood 'oral character where he had been convicted of second-
de*ree 'urder and was still on parole3 with In re !anville" >%D 4.#d 11#D 2IC 1DD3
2en banc3 2allowin* ad'ission to one previously convicted of 'urder under a
preponderance standard3. See also In re .inson5Lyles" DL0 So.#d 1$D 2La. #$$%3"
where a sharply divided court refused to allow ad'ission to a for'er schoolteacher
who had been convicted of se.ual relations with a fourteen-year old student.
?hat about relatively 'inor offenses@ Should they be relevant to a findin* of
*ood 'oral character@ ?hat if such offenses" althou*h 'inor" are repeated@ ?hat
about traffic violations@ ?hile *enerally offenses that are 'inor will not prevent a
findin* of *ood 'oral character unless they bear directly on honesty or fitness to
practice" at least one court has found that repeated violation of traffic laws" includin*
speedin* and rec-less drivin*" that led to license revocation were sufficient to warrant
denial of ad'ission to practice. See In re :apel" !# Hhio St. %d >%#" L>1 N.1.#d >>
21>3.
d. Hther than that already discussed" what -ind of activity or behavior is li-ely
to prevent a findin* of *ood 'oral character@ ?hat about applicants who are
obno.ious" rude" bi,arre or offensive@ See, e'$', Lane v' +ebras#a State )ar Assn"
#0 Neb. 0" >00 N.?.#d %L! 21L3. Should law schools screen applicants on the
basis of 'oral character@ ?hy or why not@ For a discussion of this and related
issues" see 1li,abeth 9epford McCulley" School of Shar#s9 )ar Fitness Re0"irements
of *ood !oral Character and the Role of Law Schools" 10 9eo" M. L. 1thics D%
2#$$13.
%!
Surprisin*ly" one relatively co''on basis for denial of ad'ission is en*a*in* in
the unauthori,ed practice of law. &his is particularly true where one holds hi' or
herself out as an attorney. See, e'$', In re Lee" >!1 S.1.#d !#$ 29a. #$$#3K In re
Crai$, 1$ ?is. #d 00" >#L N.?.#d #L1 21>3.
Lac- of candor or 'isstate'ents on bar applications are fre=uently *rounds for
failure to find *ood 'oral character. See, e'$', In re .ec#man" >>L N.?.#d !0L 2?is.
1L3K In re )easley" #0% 9a. 1%0" #># S.1.#d L1>" L1! 21!3 2false" 'isleadin* or
evasive answers 'ay be *rounds for findin* lac- of re=uisite *ood 'oral character3.
Lac- of candor can lead to denial of ad'ission or to discipline once ad'itted. M.).
D.12a32b3. See In re !oore, D1# N.1.#d 11! 2Mass. #$$03" where the Court ordered a
two-year suspension for lac- of candor on )espondent;s bar application. &he Court
re8ected )espondent;s clai' of literal accuracy and his contention that the =uestions
were a'bi*uous" findin* he had the re=uisite intent to deceive and 'islead. &he Court
stated+
Whether an individual is of good moral character and fit to practice
law in the Commonwealth is a most serious issue. uestions
e!ploring this issue are not to "e answered "# gamesmanship. $ar
applicants should alwa#s err on the side of full disclosure. %f the
meaning or scope of a particular "ar application &uestion is unclear to
them' the# should contact the $oard of $ar (!aminers to ascertain
e!actl# what information is "eing sought in response to that
&uestion.
)he Court went on to add*
+in the future' we intend to impose much harsher sanctions' including
dis"arment' ,to address the seriousness of the misconduct' to
reassure the "ar and the pu"lic that such conduct is completel#
contrar# to the oath of office ta-en "# ever# law#er' and to
underscore that' when it is uncovered' such conduct will "e treated
with the utmost severit#., Matter of Foley, 43. /ass. 324' 33.' 080
1.(.2d 523 (24435.
D1# N.1.#d at 1#$>. See also In re Stamps" D!0 So.#d 11% 2La. #$$03" where a couple
was disbarred for failure to disclose unauthori,ed practice of law in North Carolina on
their bar application in Louisiana.
Lac- of candor can also lead to revocation of a conditional ad'ission. See
Character and Fitness Committee ;ffice of )ar Admissions v' -ones, L# S.?.%d #D 2Ky.
#$$13" where the court found )espondent;s dishonest state'ents reflected a lac- of
candor and found his Acunnin* word *a'esB and Abald-faced atte'pts to e.ploit . . .
se'antic flawsB in his conditional ad'ission a*ree'ent cast the profession in a bad
li*ht and served as a basis to deny ad'ission.
?hat about a failure or refusal to answer =uestions@ 4lthou*h an applicant
'ay not be penali,ed for refusin* to answer =uestions that re=uest constitutionally
protected infor'ation" see, e'$', Carfa$no v' .arris" 0!$ F. Supp. #1 21.I. 4r-. 1!3
%D
2protected associational activity3" failure to provide re=uested infor'ation without such
basis 'ay well lead to denial. &he ri*ht of bar e.a'iners to as- a broad ran*e of
=uestions has been reco*ni,ed" see e'$', In re Roots" !L# 4.#d 11L1" 11LL 2)7 #$$$3
2holdin* the re=uire'ent to list all traffic violations not superfluous nor a 'ere
incursion into the applicants privacy3" althou*h there are li'its. 4n issue of concern
is the e.tent to which the 4'ericans with Iisabilities 4ct 24I43 i'poses li'its on the
bars ability to as- =uestions re*ardin* previous dru* abuse or 'ental health proble's
and treat'ent. See, e'$', In re Petition and <"estionnaire for Admission to the Rhode
Island )ar" LD% 4.#d 1%%% 2).7. 1L3.
%. &ies to the Murisdiction
<istorically" 'any state and federal courts re=uired residency in the local
8urisdiction as a pre-condition to bar ad'ission. 7n three cases" however" the Supre'e
Court held that such residency re=uire'ents violate the (rivile*es and 7''unities
Clause of the United States Constitution and are therefore unconstitutional. 7n Piper v'
+ew .ampshire S"preme Co"rt" 0!$ U.S. #!0 21D>3" the court invalidated a si'ple
residency re=uire'ent that 'andated residency at the date of ad'ission. 7n =ir$inia
S"preme Co"rt v' Friedman" 0D! U.S. > 21DD3" the Court applied (iper to invalidate a
provision re=uirin* nonresident attorneys to ta-e a bar e.a' for ad'ission but allowin*
resident attorneys to /waive into/ the bar without e.a'ination. Finally" in )arnard v'
(horstenn" 0D U.S. >0L 21D3" the Court invalidated a Gir*in island re=uire'ent that
applicants have previously resided for a year and intend to reside in the future.
7n each of these cases" the Court re8ected various 8ustifications asserted for the
residency re=uire'ent at issue" findin* the' to be insubstantial. &hus" the Court found
that fears that non-resident lawyers would not be abreast of local rules and procedures"
would behave unethically" would be unavailable for court appearances" and would
decline pro bono wor- were unwarranted. Moreover" the Court found that a state6s
desire to protect its own lawyers fro' co'petition was not a substantial 8ustification"
but rather was precisely the type of /econo'ic protectionis'/ that the Clause was
desi*ned to prevent.
Many states" in an effort to foster protectionis' without runnin* afoul of the
(rivile*es and 7''unities clause" established re=uire'ents that attorneys 'aintain an
office for full-ti'e practice of law in the 8urisdiction in order to obtain ad'ission. Hthers
did away with ad'ission without e.a'ination" althou*h a counter-trend toward
reestablishin* such ad'ission has e'er*ed. Kansas recently adopted a rule that
allows reciprocal ad'ission to the Kansas 5ar without e.a'ination under certain
circu'stances.
?ith the increase in national and international practice and use of the 'ultistate
bar e.a'" are we li-ely to 'ove toward national standards for ad'ission" or in fact
toward national bar ad'ission@ ?hat resistance is there li-ely to be@ ?hat
conse=uences 'i*ht such a develop'ent have on the structure of law practice@ 7s this
desirable@ &he 454 has been studyin* these issues and the )eport of its Co''ission
on Multi8urisdictional (ractice has recently been adopted by the 454 <ouse of
Iele*ates. ?hile reaffir'in* the principle of state re*ulation of the practice of law" the
%
reco''endations include clarifyin* when attorneys 'ay en*a*e in te'porary practice
in 8urisdictions in which they are not ad'itted and 'a-e ad'ission on 'otion 'ore
available. Loo- at the 7ntroduction and Hverview available online at
http+NNwww.abanet.or*NcprN'8pNho'e.ht'l. Io you thin- these reco''endations *o too
far@ Not far enou*h@ ?ith the *rowth of the 7nternet and *lobali,ation" these issues"
includin* transnational practice" will continue to be i'portant.
II. DISCIPLINE
4. 7ntroduction
&he discipline of lawyers has been a sub8ect of concern and discussion for
'any years a'on* lawyers and non-lawyers ali-e. More than twenty years a*o" in an
article entitled hy Croo#ed Lawyers *o Free" )eaders Ii*est brou*ht this proble' to
the public" docu'entin* proble's with the attorney discipline syste' includin* the
lar*e nu'ber of co'plaints co'pared to the s'all incidence of actual discipline"
secrecy in the disciplinary process" the ability of disciplined lawyers to practice law in
other 8urisdictions" cronyis' and failure of lawyers and 8ud*es to report other lawyers
for -nown violations. &he article =uoted a ?all Street attorney who chaired a New :or-
Co''ission studyin* lawyer discipline as follows+
7t is little wonder that so'e attorneys do not feel i'pelled to be
responsible to the disciplinary syste'. 4 syste' that 'oves in secret"
then winds up disciplinin* a 'inuscule percent of those whose conduct
is co'plained about" can neither be effective nor credible.
4lthou*h thin*s have chan*ed for the better in the 'ore than twenty years
since this article was written" so'e of the sa'e concerns e.ist. &he 454 Standards for
Lawyer Iisciplinary 1nforce'ent address 'any of these issues" and 8urisdictions
around the country have revised their disciplinary procedures with assistance fro' the
454. Most 8urisdictions now have professional staffs to ad'inister their discipline
syste's" althou*h 'ost still use volunteer attorneys as well. Most states have added
lay 'e'bers to their disciplinary panels" and a national clearin*house to share
infor'ation a'on* states about disciplined lawyers is in operation. Concern still e.ists
re*ardin* the de*ree of secrecy in the syste'" althou*h so'e states have 'ade
chan*es in this area as well. &he proble' of attorneys and 8ud*es not 'a-in*
co'plaints about other attorneys still e.ists" and" althou*h the incidence of discipline
has increased" there are still concerns re*ardin* the effectiveness of the disciplinary
syste' as a source of control over lawyer conduct. 7t is li-ely that these issues will
continue to e.ist and be debated well into the future.
Finally" the overall issue of lawyer self-re*ulation continues to be the sub8ect of
debate. 4s 'any be*in to view law as 'ore of a business than a profession" the
=uestion whether the de*ree of self-re*ulation now afforded the le*al profession is
appropriate ta-es on increasin* focus. &hese issues are not li-ely to *o away in the
foreseeable future.
0$
5. (urpose of Iiscipline
&he ori*inal co''entary to 1.1 of (he A')'A' Standards for Lawyer 2iscipline and
2isability Proceedin$s reads as follows 2citations o'itted3+
. . . Iisciplinary proceedin*s are not lawsuits between parties liti*ant but rather
are in the nature of an in=uest or in=uiry as to the conduct of the respondent.
&hey are not for the purpose of punish'ent" but rather see- to deter'ine the
fitness of an officer of the court to continue in that capacity and to protect the
courts and the public fro' the official 'inistration of persons unfit to practice.
&hus the real =uestion at issue in a disbar'ent proceedin* is the public interest
and the attorney6s ri*ht to continue to practice a profession i'bued with public
trust.6
&he lawyer6s license proclai's to the public that the holder has been
found =ualified to practice law in accordance with standards i'posed by the
court" and that potential clients 'ay therefore entrust their le*al proble's to
hi'. &he public has no ade=uate independent 'eans by which to deter'ine
the lawyer6s trustworthiness" and 'ust rely upon the certification inherent in the
license.
7f there is evidence indicatin* that the lawyer is no lon*er 'eetin*
'ini'u' standards" the court" on behalf of the public" is obli*ated to ensure an
in=uiry" or to provide a 'eans of institutin* an in=uiry" to deter'ine whether the
license and the certification inherent therein should be revo-ed. &he discipline
and disability syste' is the structure established for that purpose.
Y4 court has the duty" since attorneys are its officers" to insist upon the
'aintenance of the inte*rity of the bar and to prevent the trans*ressions of an
individual lawyer fro' brin*in* its i'a*e into disrepute. Iisciplinary procedures
have been established for this purpose" not for punish'ent" but rather as a
catharsis for the profession and a prophylactic for the public.B
Missouri is in accord with the Standards in this re*ard.
In the !atter of )ear" >!D S.?.#d #D 2Mo. banc 1!3+
&he 'ain purpose of a disciplinary proceedin* is to in=uire into the fitness of an
attorney to continue in the practice of law. &he ob8ective is not to punish the
attorney but to protect the public and to protect the inte*rity of the profession
and the courts.
See also In re Snyder" %> S"?"%d %D$" %D0 2Mo banc. #$$$3K !atter of 2orsey" !%1
S.?.#d #>#" #>% 2Mo. banc 1D!3.
)"t see In re R"ffalo" %$ U.S. >00" >>$ 21LD3+
Iisbar'ent" desi*ned to protect the public" is a punish'ent or penalty i'posed
on the lawyer Cand therefore due process principles applyE.
01
1ric Steele and )ay'ond Ni''er" in a co'prehensive article entitled Lawyers, Clients
and Professional Re$"lation" 1!L 4.5.F. )es. M. 1" state+
&he current policy *oals of professional self-re*ulation 'ay be e.pressed
analytically in ter's of three functions+ 213 to identify and re'ove fro' the
profession all seriously deviant 'e'bers 2the cleansin* function3" 2#3 to deter
nor'ative deviance and 'a.i'i,e co'pliance with nor's a'on* attorneys
2the deterrence function3" and 2%3 to 'aintain a level of response to deviance
sufficient to forestall public dissatisfaction 2the public i'a*e function3.
&his for'ulation is si'ilar to that e.pressed by the Missouri Supre'e Court in In re
Staab" !D> S.?.#d >>1 2Mo. banc 1$3+
&he purpose of attorney discipline is to protect the public and 'aintain the
inte*rity of the le*al profession. &he discipline 'ust be desi*ned to correct any
antisocial tendency on the part of the attorney as well as to deter others who
'i*ht tend to en*a*e in si'ilar violations
See also 454 Standards for 7'posin* Lawyer Sanctions" Co''entary to Standard 1.1.
&o what e.tent are these functions appropriate *oals of a lawyer disciplinary syste'"
and if appropriate" to what e.tent are they served by disciplinary rules and procedures
currently in use@ 4s we e.a'ine instances of discipline" consider which functions are
bein* served and whether they are bein* served effectively.
Note that the disciplinary process deals only with lawyers who fall below the
'ini'ally acceptable standards. 7t does nothin* to encoura*e best practices or
professionalis'. 4dditionally" discipline 'ay re'ove the offendin* attorney fro'
practice and" at least theoretically" 'ay *ive notice of the attorneys infraction to the
public" but it has no direct re'edial effect. Clients and others har'ed by attorney
conduct are" for the 'ost part" left to civil re'edies 2i.e." 'alpractice3. So'e states
have" however" created client security funds to provide rei'burse'ent to clients" but
they are usually li'ited to intentional 'isappropriation of funds. See Steele and
Ni''er" at 1$$!-1$10.
4 recent develop'ent in attorney discipline is the arrival of alternative dispute
resolution. For e.a'ple" in Missouri" pursuant to )ule >.1$" appropriate co'plaints
'ay be referred for 'ediation rather than for'al disciplinary proceedin*s. &his 'ay
allow for *reater involve'ent by the co'plainant and a 'ore satisfactory resolution of
the 'atter.
C. 9rounds for Iiscipline
(ursuant to the Model )ules" ACfEailure to co'ply with an obli*ation or
prohibition i'posed by a )ule is a basis for invo-in* the disciplinary process. Scope
Note" ' >. 7n Missouri" disciplinary counsel is authori,ed to investi*ate any 'atter of
professional 'isconduct. Mo. Sup. Ct. ). >.$D. )ule D.0 2found in Missouri in
Supre'e Court )ule 03 defines professional 'isconduct. 7t is professional
'isconduct for a lawyer to violate or atte'pt to violate the rules of professional
conduct" -nowin*ly assist or induce another to do so" or do so throu*h the acts of
0#
another. D.02a3. )ule D.02a3 essentially incorporates violations or atte'pts to violate
other 'odel rules" and thus a violation of a substantive rule conclusively establishes
that respondent violated )ule D.02a3. In re ;berhellmann, D!% S.?.#d D>1 2Mo. banc
103. &he re'ainder of )ule D.0 sets out other for's of professional 'isconduct that
are independent of the substantive rules.
)ule D.02b3 'a-es it 'isconduct for an attorney to co''it a cri'inal act that
reflects adversely on the lawyers honesty" trustworthiness or fitness as a lawyer in
other respects.B &he prior version 2under the Code3 focused on cri'es of 'oral
turpitude" but the )ules chose to avoid use of that potentially va*ue ter'. 7t is not
necessary that the attorney be convicted of a cri'e for this provision to apply as lon*
as the conduct violates the cri'inal law. See ?olfra'" MHI1)N L194L 1&<7CS %.%.#
at 1 21DL3. Moreover" a cri'inal ac=uittal does not bar subse=uent disciplinary
action. In re Storment" D!% S.?.#d ##!" ## 2Mo. banc 103.
?here an attorney has been convicted of a serious cri'e" discipline will
fre=uently follow. See, e'$', In re :a>anas" L S.?.%d D$% 2Mo banc. #$$%3. 7n
Missouri" proceedin*s under Missouri Supre'e Court )ule >.#1 per'it suspension of
an attorney upon conviction of or plea to a felony or a 'isde'eanor involvin* 'oral
turpitude. Id' at D$D. Hnce such conviction is final" discipline 'ay be i'posed by the
Court based on 'otion of disciplinary counsel and a certified copy of the 8ud*'ent
without further proceedin*s. )ule >.#12c3. &his section has been used to i'pose
discipline on attorneys convicted of felonies as well as various 'isde'eanor offenses.
&he Court has found failure to pay inco'e ta.es" In re 2"ncan" D00 S.?.#d 00% 2Mo.
banc 1%3K failure to pay child support" In re arren, DDD S.?.#d %%0 2Mo. banc
103K and possession of cocaine" In re Sh"n#" D0! S.?.#d !D 2Mo. banc 1%3" all to
be offenses involvin* 'oral turpitude.
)ule D.02c3 'a-es it 'isconduct to en*a*e in conduct involvin* dishonesty"
fraud" deceit or 'isrepresentation. &his provision is related to and overlaps with other
provisions of the rules" includin* D.02b3. See 4NNH&4&1I MHI1L )UL1S HF
()HF1SS7HN4L CHNIUC& 2>th. ed. #$$%3 at L$D. &his )ule covers a broad variety of
conduct" includin* for*in* a na'e on a clients chec-" In re *riffey" D!% S.?.#d L$$
2Mo. banc 103K lyin* to opposin* counsel as to availability for trial" in re Stric#er" D$D
S.?.#d %>L 2Mo. banc 113K and convertin* client funds. In re Phillips" !L! S.?.#d 1L
2Mo. banc 1D3. /C7Et is not necessary to the e.ercise of the disciplinary powers of
thCeE Court that the fraud co''itted by a lawyer be co''itted in his capacity as a
lawyer . . . . In re :irt>" 00 S.?.#d %#0"%#D 2Mo. banc 1!%3. See also In re Panec#"
>D> S.?.#d 0!! 2Mo. banc 1!3. In re Smith" !0 S.?.#d 0$D" 01% 2Mo. banc 1DD3
4s the Court noted in In re 2isney" ## S.?.#d 1#" 1> 2Mo. banc 1L3+
Iiscipline for violation of this rule does not depend on the e.istence of an
attorney-client relationship. . . .Suestions of honesty *o to the heart of fitness to
practice law. . . . Misconduct involvin* subterfu*e" failin* to -eep pro'ises" and
untrustworthiness under'ine public confidence in not only the individual but in
the bar.
)ule D.02d3 'a-es it 'isconduct to en*a*e in conduct that is pre8udicial to the
ad'inistration of 8ustice. &his provision is used in a wide variety of conte.ts and
0%
overlaps with other provisions. See, e'$', In re estfall" D$D S.?.#d D# 2Mo. banc
113 2rec-less accusations a*ainst 8ud*e3K In re =ails" !LD S.?.#d !D 2Mo. banc 1D3
2failure to cooperate with disciplinary investi*ation3K In re )ear" >!D S.?.#d #D 2Mo.
banc 1!3 2ta'perin* with evidence by erasin* a tape that" althou*h inad'issible"
was part of an on*oin* investi*ation3. Since this provision is *enerally used in
con8unction with other )ules" the potential va*ueness of this ter' has not been as
proble'atic as it 'i*ht be. 7t has" however" been challen*ed on occasion" althou*h to
date without success. See 4NNH&4&1I )UL1S" at L10-1L.
4lthou*h subsections 2b3 throu*h 2d3 of )ule D.0 provide for discipline in a
broad ran*e of circu'stances" their use is not unli'ited. 7n In re !ills" 0L# S.?.#d
!$$" !$1 2Mo. banc 1!13" the Court stated 2under si'ilar provisions of the Code3 that
in Missouri" discipline is not appropriate for conduct Ain the nature of bad taste and bad
'annersB if the attorneys honesty" inte*rity and 'oral character re'ain
unco'pro'ised. See !aryland *rievance Com?n' v' Lin#, D00 4.#d 11! 2Md. #$$03
2)ude" boorish" insensitive and insultin* conduct" while inappropriate and unfortunate"
is not sub8ect to discipline unless cri'inal or arisin* within the le*al process itself.
?hile civility and professionalis' are very i'portant" Ait is neither feasible not desirable
that every social interaction between a lawyer and a non-lawyer be re*ulated . . . A3.
)ule D.02e3 prohibits an attorney fro' statin* or i'plyin* an ability to influence
a *overn'ent a*ency or official 2and" in the current version" to achieve results by
'eans that violate the )ules or other law3 and 2f3 prohibits -nowin*ly assistin* a 8ud*e
in violatin* the 8udicial code. For situations involvin* these rules" see 4NNH&4&1I
)UL1S" at L1-#$.
&he 454 proposed an addition to )ule D.0 of a section addressin* bias and
pre8udice. &he proposal was withdrawn and lan*ua*e was added to para*raph % of the
Co''ent indicatin* that 'anifestation of bias or pre8udice violates )ule D.0 where
Asuch actions are pre8udicial to the ad'inistration of 8ustice.B 4 rule was adopted in
Missouri in 1> that 'a-es it professional 'isconduct to+
'anifest by words or conduct" in representin* a client" bias or pre8udice based
upon race" se." reli*ion" national ori*in" disability" or a*e. &his )ule 0-D.02*3
does not preclude le*iti'ate advocacy when race" se." reli*ion" national ori*in"
disability" or a*e" or other si'ilar factors" are issues.
Mo. Sup. Ct. )ule 0-D.02*3. &he )ule only applies to attorneys in the course of
representin* a client" and difficult =uestions re'ain re*ardin* the scope of the
Ale*iti'ate advocacyB e.ception. &here is stron* reason to believe the )ule is desi*ned
'ore to 'a-e a state'ent than as a li-ely basis for discipline e.cept in e*re*ious
cases.
I. (rocedure
Missouris disciplinary procedures have *one throu*h 'a8or revision
several ti'es in recent years. &hey are now fairly consistent with the 454 Standards
for disciplinary proceedin*s and with practice around the country. &he relevant rules
00
are found in Missouri Supre'e Court )ule >. See http+NNwww.'ochiefcounsel.or*N
2e.planation of disciplinary syste' for the public by the Hffice of Iisciplinary Counsel3K
http+NNwww.'obar.or*Npa'phletNdiscip.ht' 2e.planation of disciplinary syste' for the
public by the Missouri 5ar3.
&he disciplinary syste' is ad'inistered by the Hffice of Iisciplinary Counsel.
Co'plaints are filed with that Hffice. &he Hffice of Iisciplinary Counsel can either
investi*ate the co'plaint itself or refer it to a circuit bar co''ittee for investi*ation.
7nvesti*ations can be initiated by disciplinary counsel even without a for'al co'plaint.
>.$D. 7n cases where it is believed a co'plaint can appropriately be resolved throu*h
'ediation" counsel 'ay refer the co'plaint to the 5ar Co'plaint )esolution (ro*ra'
for resolution. >.1$. 7f a co'plaint is not so referred or if it cannot be satisfactorily
resolved throu*h 'ediation" an investi*ation ensues. 7f" after investi*ation" probable
cause is found" counsel or the appropriate co''ittee 'ay offer an ad'onition" if
appropriate. &he respondent attorney then has 1> days to accept or re8ect the
ad'onition. >.112a32b3. 7f an ad'onition is not appropriate" or if one that is offered is
re8ected" an infor'ation shall be drafted and served on the respondent. >.112c3. 7f no
probable cause is found" the co'plainant shall be notified within 1$ days. &he
co'plainant can then see- 4dvisory Co''ittee review of the deter'ination of no
probable cause. >.1#.
Hnce an infor'ation has been filed" respondent is to file an answer or ris-
default. >.1%. 4 hearin* is then held before a disciplinary hearin* panel or" in so'e
cases" a special 'aster. >.10. &he hearin* is prosecuted by disciplinary counsel or a
desi*nee. &he hearin* 'ust deter'ine whether the respondent is *uilty of professional
'isconduct" and the burden of proof on disciplinary counsel is to establish a violation of
)ule 0 by a preponderance of the evidence. <earin*s are conducted in accordance
with nor'al rules of court" e.cept that discovery is 'ore li'ited. >.1>. ?ithin thirty
days of co'pletion of the hearin*" the panel shall render a written decision includin*
findin*s re*ardin* each alle*ed act of 'isconduct and reco''endations for discipline
if violations are found. >.1L.
4fter hearin*" the panel 'ay find that the infor'ation should be dis'issed" that
a written ad'onition is appropriate" or that further proceedin*s are warranted. 7f an
ad'onition is offered" the respondent has fifteen days to accept or re8ect it. 7f the panel
reco''ends discipline" it shall file its report with the Supre'e Court. 7f the parties
concur in the written decision" they 'ay stipulate to the report. 7f the Court concurs
with the stipulation" discipline is i'posed without further proceedin*s. 7f the parties do
not concur" or if the Court does not accept the stipulation" disciplinary counsel 'ust file
the co'plete record before the panel with the Court. &he 'atter is then briefed and
ar*ued by the parties. 7f the Court finds for the respondent" it shall dis'iss the
infor'ation" 7f the Court finds the 'isconduct char*ed" it shall i'pose appropriate
discipline. >.1.
&he )ules also provide for proceedin*s where an attorney is incapacitated or
disabled" >.#%" and for interi' suspension for threat of har'. >.#0. 7n addition" an
attorney 'ay voluntarily surrender his or her license upon application to the Court"
althou*h the Court is not re=uired to accept surrender and 'ay re=uire disciplinary
0>
counsel to proceed under the )ules. >.#>. See In re :a>anas" L S.?.%d D$% 2Mo.
banc #$$%3 2court refused surrender" disbar'ent ordered after proceedin*s
co'pleted3.
1. Sanctions
&he ori*inal 454 Standards for Lawyers Iiscipline addressed the issue of
sanctions as follows+
I7SC7(L7N1 &H 51 7M(HS1I 7N 4 (4)&7CUL4) C4S1
!.1 Factors to be Considered. &he discipline to be i'posed should depend
upon the specific facts and circu'stances of the case" should be fashioned in
li*ht of the purpose of lawyer discipline" and 'ay ta-e into account a**ravatin*
or 'iti*atin* circu'stances.
CHMM1N&4):
&he nature and de*ree of discipline to be i'posed should be
deter'ined on a case by case basis" after consideration of all relevant factors. .
. .&he court should avoid adoption of rules that 'andate dispositions for certain
for's of 'isconduct. Fi.ed penalties li'it the court6s ability to deal with the
co'ple.ity and variety of circu'stances involved in each 'atter.
7n deter'inin* the nature and e.tent of the discipline the court should
consider 2a3 the seriousness and circu'stances of the offense" 2b3 avoidance of
repetition 2c3 deterrent effect upon others" 2d3 'aintenance of respect for the
honor and di*nity of the le*al profession" and 2e3 assurance that those who
see- le*al service will be insulated fro' unprofessional conduct.
&he respondent6s lac- of re'orse" his failure to cooperate with the
a*ency in its investi*ation" his failure to voluntarily 'a-e restitution to those
in8ured by his 'isconduct" his failure to ac-nowled*e and reco*ni,e the
seriousness of his violation" the e.tent of his breach of trust" and his record of
prior discipline" are factors which have been viewed as a**ravatin*.6 &he
courts have i'posed 'ore severe discipline when such factors have been
present than when they are absent.
So'eti'es circu'stances present in a case will cause the court to be
lenient. 4 willin*ness to rectify the da'a*e caused by the 'isconduct"
contrition" ine.perience" te'porary 'ental aberrations for which the respondent
has sou*ht treat'ent" and restitution prior to the filin* of a *rievance" have
been relied upon by courts as 'iti*atin* factors warrantin* lesser discipline.
&he current standards are found at U%.$. See 454 Standards for 7'posin*
Lawyer Sanctions at http+NNwww.abanet.or*NcprNre*ulationNstandardsOsanctions.pdf" Io
either of these for'ulations ade=uately address the issues at sta-e@
Followin* adoption of the 454 Standards for Lawyer Iiscipline" which did not
atte'pt to reco''end particular types of discipline for particular cases" the 454
beca'e concerned that there was widespread inconsistency in sanctions and that this
0L
was undesirable. 4s a result" it for'ed a Moint Co''ittee on (rofessional Sanctions"
whose 'andate was to for'ulate standards for the i'position of appropriate sanctions.
&he <ouse of Iele*ates approved their proposed Standards in February 1DL. &hese
are not bindin*" but provide *uidance in the i'position of sanction and are considered
by so'e courts. Missouri relies heavily on the Standards in i'posin* discipline. See,
e'$', In re Crews, 1> S.?.%d %>> 2Mo. banc #$$>3.
Standards #.#-#.D contain the available sanctions" includin* disbar'ent"
suspension" repri'and" ad'onition" probation" and restitution. Standard %.$ describes
the factors to be considered in i'posin* sanctions" and Standards 0.$ - D.$ detail what
sanctions are appropriate for particular types and de*rees of 'isconduct.
7n Missouri" )ule >.%% provides CnEothin* in this )ule > shall be construed as a
li'itation upon the powers of this Court to *overn the conduct of its officers . . . . &his
)ule > shall not constitute an e.clusive 'ethod for re*ulatin* the practice of law . . . ./
4 predecessor provision in )ule >.#! was interpreted by the Missouri Supre'e Court
as *ivin* it the /inherent power. . . to tailor and shape its 8ud*'ent to fit the nature"
character" *ravity and effect of professional 'isconduct . . . ./ &hus" the Court has
broad authority with re*ard to sanctions.
)ule >.1L provides+
2d3 &he reco''ended discipline 'ay be a public repri'and" suspension or
disbar'ent. 4 reco''endation for suspension shall include the len*th of ti'e
that 'ust elapse before the respondent is eli*ible to apply for reinstate'ent. 4
reco''endation for suspension 'ay provide that the suspension be stayed in
whole or in part and that the respondent be placed on probation.
7n addition" )ule >.##> specifically provides for probation. 7n In re iles" 1$! S.?.%d
##D 2Mo. banc #$$%3" the rule was used to place the attorney on probation for one year
under the supervision of Chief Iisciplinary Counsel. 1ven prior to adoption of )ule
>.##>" the Court i'posed that sanction pursuant to its broad powers. See, e'$', In re
!iller" >LD S.?.#d #0L 2Mo. banc 1!D3 2prohibitin* respondent fro' actin* as a
fiduciary for two years3K In re Schiff" >0# S.?.#d !!1 2Mo. banc 1!L3 2re=uirin* that
respondent read Code and periodically report co'pliance to Court durin* two year
period3. 4dditionally" the Court has re=uired co'pletion of CL1 courses 2in ban-ruptcy
and ethics3 as a condition of reinstate'ent after suspension. In re Snyder" %> S.?.%d
%D$" %D> 2#$$$3.
Hther 8urisdictions utili,e the sanction of probation with conditions where a
repri'and is insufficient but suspension is unwarranted. 4 particularly interestin* case
is In re *reene" #!L Hr. 111!" >>! (.#d L00 21!!3 where the Court found that the
accused attorney /was deficient in so'e ele'entary probate procedures/ and failed to
reco*ni,e a conflict of interest. 4ccordin*ly" it placed the attorney on probation /until
he furnishes evidence that he successfully passed" with a *rade of no less than 5 or its
e=uivalent" courses at a law school of this state in (rofessional )esponsibility and the
4d'inistration of 1states. &he attorney was *iven twenty 'onths to do so.
0!
7n Missouri" as in other 8urisdictions" disbar'ent is reserved for the 'ost serious
'isconduct. &he purpose of attorney discipline is to protect the public and 'aintain the
inte*rity of the le*al profession. In re Littleton" !1 S.?.#d !!#" !!! 2Mo. banc 1DL3.
&his Court has reserved disbar'ent for persons clearly unfit to practice law and used
repri'ands for isolated acts not involvin* dishonest" fraudulent" or deceitful conduct.
7d.
&he inter'ediate sanction of suspension is appropriate considerin* the
circu'stances of this case" where respondent violated his duty to the public to
'aintain personal inte*rity" but the conduct does not rise to a level indicatin*
respondent is clearly unfit to practice law. See 454 Standards for 7'posin*
Lawyer Sanctions )ule >.$ 21DL3. 5rief suspension should be sufficient to
protect the public.
In re 2isney" ## S.?.#d at 1>-1L.
7n 'any 8urisdictions" disbar'ent is per'anent and no reinstate'ent is
possible. 7n others" reinstate'ent is per'itted but *enerally re=uires a showin* of
rehabilitation and current fitness to practice. 7n 'ost 8urisdictions where a respondent is
disbarred for conviction of cri'e" he or she 'ust also show /repentance/" which
re=uires an ad'ission of *uilt. )"t see In re .iss" %LD Mass. 00!" %%% N.1.#d 0#D
21!>3. 7n Missouri" reinstate'ent is per'itted and is *overned by )ule >.#D. (ursuant
to that rule" an attorney who has been disbarred or suspended 'ay be reinstated if the
conditions set out in the )ule have been 'et and the Court" after reviewin* a report by
disciplinary counsel" finds that the applicant;s license should be restored. 4'on* the
re=uire'ents for reinstate'ent are that the cause for disbar'ent or suspension has
abated" all persons in8ured by the lawyers conduct have received restitution or have
been notified of the application" all special conditions i'posed at the ti'e the ri*ht to
practice was lost have been 'et" a specified a'ount of CL1 has been co'pleted" the
person has passed the M()1 within two years precedin* reinstate'ent" and the
person is of *ood 'oral character and the best interests of the public will be served by
reinstate'ent.
Sanctions less than disbar'ent and suspension are also available and are
used where interruption of a lawyers practice is not warranted. )epri'ands are often
i'posed where the conduct is ne*li*ent or where there is an isolated act of 'isconduct
that is not serious enou*h to warrant suspension. 4bsent a**ravatin* or 'iti*atin*
circu'stances" a repri'and is *enerally the appropriate sanction where a lawyer has
previously received an ad'onition. See In re Fran#" DD> S.?.#d %#D" %%% 2Mo. banc
103.
4n attorney who has been disciplined in one 8urisdiction is nor'ally re=uired to
show cause why he or she should not be disciplined in other states in which he or she
is licensed to practice law. See )ule >.#$. Since discipline in another 8urisdiction is to
be afforded full faith and credit" the other states proceedin*s 'ay be attac-ed only for
lac- of 8urisdiction" i'proper notice or fraud. In re Storment" D!% S.?.#d ##!" #%$ 2Mo.
banc 103.
0D
<owever" accordin* the Cother state;sE order full faith and credit does not
re=uire discipline in Missouri. In re einer" >%$ S.?.#d ###" ##0 2Mo. banc
1!>3. C&heE )ule conte'plates that this Court 'ay choose not to discipline a
lawyer disciplined by another state. Id. For e.a'ple" the attorney6s conduct
'ay not be a *round for discipline in Missouri. In re =each" #D! S.?.#d at !>.
&his Court 'a-es its own independent 8ud*'ent as to the fitness of the
'e'bers of its bar. Id' at !>>K einer" >%$ S.?.#d at ##0.
Storment" D!% S.?.#d at #%$. 7n doin* so" the burden of proof is on the attorney to
show why the other states disciplinary order should not be conclusive of 'isconduct
for the purpose of discipline by the Court. Id' at #%$-%1. 7f the Court accepts the
findin* of 'isconduct" it 'a-es its own independent deter'ination of sanction. Id'
?here two 8urisdictions both conduct an investi*ation of an attorney" each can reach its
own independent conclusion and i'pose appropriate discipline even thou*h
inconsistent. See In re Ro#ahr" LD1 N.?.#d 1$$ 2SI #$$03 2Findin* of intentional
'isconduct led to suspension in Nebras-aK findin* of inadvertent 'isconduct led to
repri'and in South Ia-ota3.
)ecent a'end'ents to Model )ule D.> 2recently adopted in Missouri3 per'it
discipline of lawyers in 8urisdictions in which they are not ad'itted if they offer or
provide services in that 8urisdiction. 7n addition" the )ule clarifies choice of law
principles relatin* to discipline of attorneys who are ad'itted in 'ultiple 8urisdictions.
)ead )ule D.>.
F. )eportin* Misconduct
M.). D.% re=uires an attorney who has -nowled*e that another lawyer has
co''itted a violation of the rules to report such -nowled*e to the relevant professional
authority where the violation is one that raises a substantial =uestion re*ardin* the
lawyer6s honesty" trustworthiness or fitness to practice. )eportin* is re=uired re*ardless
of whether the 'isconduct occurred in the practice of law. 454 For'al Hp. $0-0%%
2#$$03. &here is no obli*ation if the infor'ation providin* such -nowled*e is *overned
by the confidentiality re=uire'ents of )ule 1.L or if the lawyer with -nowled*e *ained
the infor'ation while servin* in an approved lawyer assistance pro*ra'. Knowled*e in
this conte.t 'eans actual -nowled*e or a substantial basis for believin* a serious
violation e.ists. See N.M. 5ar 4dv. Hpin. 1DD-D.
Gery few lawyers have been disciplined for violation of these /whistle-blowin*/
provisions" and *enerally such discipline has been 'inor. 4s a result" the reportin*
re=uire'ents have been lar*ely i*nored. &here was so'e indication that courts were
be*innin* to ta-e these provisions 'ore seriously when a lawyer was suspended for
one year for failin* to report 'isconduct and usin* such failure to report as levera*e in
obtainin* a settle'ent. In re .immel" 1#> 7ll. #d >%1" >%% N.1.#d !$ 21DD3. &he
incidence of lawyer reportin* increased in the 'onths followin* .immel" but
subse=uently declined as it appeared that that case was an isolated instance of
discipline rather than the be*innin* of a trend.
0
&he reportin* re=uire'ents are controversial and are al'ost universally disli-ed
by lawyers. 4s noted in the )eaders Ii*est article" however" this failure of lawyers to
report each other is a source of serious concern with the *eneral public.
>$
CHAPTER IV
THE ATTORNEY.CLIENT RELATIONSHIP
I. NATURE OF THE ATTORNEY.CLIENT RELATIONSHIP
&he attorney-client relationship is co'posed of 'any ele'ents and has a
co'ple. of values and theoretical bases underpinnin* it. &he relationship is based on
contract" a*ency and fiduciary principles" but cannot solely be characteri,ed as a
contractual" a*ency or fiduciary relationship. 7n fact" the 'ost appropriate response to
the =uestion what is the nature of the attorney-client relationship 2as well as the
=uestion whether such a relationship e.ists in any *iven situation3 is li-ely to be why
do you as-@
Courts fre=uently refer to this co'ple. of values in discussin* the attorney-
client relationship" and Missouri is no e.ception+
7n *eneral principle" the relationship of lawyer and client is contractual. . . . 7t is
also a relation of a*ency" and its *eneral contours are *overned by the sa'e
rules. . . . 7t is" nevertheless" distin*uished fro' other types of a*ency by its
hi*hly fiduciary =uality and by the li'it of its scope . . . .
-arna$in v' (erry" D$! S.?.#d 1$" 1%-0 2Mo. 4pp. 113. 7n other cases" however"
the courts will focus on a particular characteri,ation of the relationship that is 'ost
relevant or appropriate to the issue at hand. See, e'$', )a#er v' hita#er" DD! S.?.#d
LL0" LL 2Mo. 4pp. 103 24n a*ree'ent between an attorney and client should be
construed under the sa'e rules that apply to other contracts3@ Resol"tion (r"st
Company v' *ibson" D# F. Supp. 11#1 2?.I. Mo. 1%3 (Under Missouri law" the
attorney-client relationship is an a*ency relationship *overned by the sa'e law as that
which applies to a*ency relationships *enerally3K :line v' )oard of Par#s and
Recreation Comrs, !% S.?.%d L%" L! 2Mo. 4pp. #$$#32sa'e3K !ac#e La"ndry Service
Limited Partnership v' -et> Service Co'" %1 S.?.#d 1LL 2Mo. 4pp.1L3 2&he
attorney-client relationship is one of a*ency.3K Corri$an v' Armstron$, (easdale,
Schlafly, 2avis A 2ic"s, D#0 S.?.#d #, D 2Mo. 4pp. 1#3 24d'ittedly" an attorney
hired by a client is . . . an a*ent with the nor'al fiduciary duties i'posed by law and
with specific ethical duties i'posed as a condition of the privile*e to practice law.3K
illiams v' Preman, 11 S.?.#d #DD" %$1 2Mo. 4pp. 1>3 2/&he relation between
attorney and client is fiduciary and binds the attorney to a scrupulous fidelity to the
cause of the client which precludes the attorney fro' any personal advanta*e fro' the
abuse of that reposed confidence. . . . 4s a fiduciary" an attorney owes his client the
*reatest de*ree of loyalty" *ood faith and faithfulness.3K In re .oward" 1# S.?.#d L1
2Mo. banc 1>3 2/&he relation between attorney and client is hi*hly fiduciary and of a
very delicate" e.actin* and confidential character" re=uirin* a very hi*h de*ree of
fidelity and *ood faith on attorney6s part/3.
1ach characteri,ation brin*s with it certain ri*hts" duties and responsibilities. 7n
any case where the e.istence or nature of the relationship is seriously in issue" it is
necessary to loo- to these bac-*round principles for *uidance.
>1
II. WHEN DOES THE ATTORNEY.CLIENT RELATIONSHIP BEGIN?
4 funda'ental distinction is involved between clients" to who' lawyers owe
'any duties" and non-clients" to who' lawyers owe few duties. 7t therefore 'ay be
vital to -now when so'eone is a client and when not. )1S&4&1M1N& HF &<1 L4?
9HG1)N7N9 L4?:1)S" &opic 1 7ntroductory Note 2before ' 103. 9enerally" there is no
=uestion re*ardin* whether an attorney-client relationship has been created. ?here a
client see-s out an attorney in his or her office" re=uests representation and a*rees to
pay a fee" and the attorney a*rees to underta-e that representation" the relationship
has clearly been established. 5ut fre=uently" one or 'ore of these factors are 'issin*"
and the =uestion to be addressed is whether" despite this" an attorney-client
relationship e.ists.
&he Model )ules do not directly address when an attorney-client relationship is
created. 7n fact" the Scope Note to the )ules e.plicitly ne*ates any role for the )ules
in this re*ard. (ara*raph % states" for purposes of deter'inin* the lawyers authority
and responsibility" principles of substantive law e.ternal to these )ules deter'ine
whether a client-lawyer relationship e.ists. &he sa'e para*raph does ac-nowled*e
that whether such a relationship e.ists for any specific purpose can depend on the
circu'stances and 'ay be a =uestion of fact.
&he )estate'ent addresses the issue in U 10 as follows+
F('-+"(# () !e C,"e#.L+/0e' Re,+"(#*!"1
4 relationship of client and lawyer arises when+
213 a person 'anifests to a lawyer the persons intent that the lawyer
provide le*al services for the personK and either
2a3 the lawyer 'anifests to the person consent
to do soK or
2b3 the lawyer fails to 'anifest lac- of consent to do so"
and the lawyer -nows or should -now that the person
reasonably relies on the lawyer to provide the servicesK or
2#3 a tribunal with power to do so appoints the lawyer to provide the
services.
&he )estate'ent reco*ni,es that" while this is the *eneral rule for
establish'ent of the attorney-client relationship" aspects of that relationship can be
created at different ti'es in different 'anners. Co''ent to ' 10. &he *reater the duty
to the client that is bein* asserted" and the 'ore li-ely reco*nition of the relationship
will co'pel a lawyer to provide onerous services" the less li-ely a full attorney-client
relationship will be found. )1S&4&1M1N&" Co''ent to ' 10. Courts are loathe to
i'pose fiduciary duties on attorneys where the lawyer has not a*reed to enter into a
relationship of that nature.
Missouri law on the sub8ect was set out in Resol"tion (r"st Company v' *ibson"
>#
D# F. Supp. 11#1" 11#! 2?.I. Mo. 1%3+
Under Missouri law" the attorney-client relationship is an a*ency relationship
*overned by the sa'e law as that which applies to a*ency relationships
*enerally. . . . 4n a*ency relationship results fro' Athe 'anifestation of consent
by one person to another that the other shall act on his behalf and sub8ect to his
control" and consent by the other so to act.B Leidy v' (aliaferro" #L$ S.?.#d
>$0" >$> 2Mo.1>%3K *roh v' Shelton" 0#D S.?.#d 11" 1L 2Mo. 4pp.1LD3K
2illard v' Rowland, >#$ S.?.#d D1" $ 2Mo.4pp.1!03. 4n a*ency relationship
'ay be established by consent 'anifested in words and conduct. *roh" 0#D
S.?.#d at 1L. Neither a contract nor an e.press appoint'ent and acceptance
is essential to the for'ation of an a*ency relationship. Id. Further'ore" in
Missouri" /CtEhe creation of the attorney- client relationship 6is sufficiently
established when the advice and assistance of the attorney are sou*ht and
received in 'atters pertinent to his profession.6 / Eric#son v' Civic Pla>a +at'
)an# of :ansas City" 0## S.?.#d %!%" %!D 2Mo.4pp.1L!3. See also State v'
Lon$o" !D S.?.#d D1#" D1> 2Mo.4pp.1$3 2citin* Eric#son for the sa'e
proposition3.
?here parties can prove that they sou*ht and received le*al advice and assistance
and that Cthe lawyerE intended to underta-e to *ive such advice and assistance on their
behalf . . . " the attorney-client relationship 'ay be found to e.ist. 2onah"e v'
Sh"$hart, (homson A :ilroy, P'C', $$ S.?.#d L#0" L#L 2Mo. banc 1>3. <owever"
reliance alone upon the advice or conduct of a lawyer does not create an attorney-
client relationship. Id'" citin$ )onald 1. Mallin and Meffrey M. S'ith" L194L
M4L()4C&7C1 & D.#" at L 2%rd. ed. Supp. 1%3. 7t is the client6s reasonable belief
that an attorney is representin* hi' that provides the basis for reco*ni,in* the
e.istence of the relationship. Lon$o" !D S.?.#d at D1L 2in the conte.t of the attorney-
client privile*e3.
7n any case where the e.istence of an attorney-client relationship is in issue" it
will be necessary to identify the nature of the duties and responsibilities that are at
issue and to deter'ine the e.istence of the relationship in that conte.t. &here is a
tension between protectin* le*iti'ate interests of prospective clients" who are not in
the best position to 8ud*e whether the relationship has been created" and the ri*ht of
an attorney to freely choose whether to enter into such a relationship. Many courts
now err on the side of the client where the lawyer could have clarified the 'atter and
did not. 7t is therefore a *ood idea for an attorney who does not underta-e to represent
a potential client after an initial consultation 2or what could be reasonably construed as
one3 to send a non-en*a*e'ent letter to that individual. For further discussion of these
issues" see )1S&4&1M1N&" Co''ent and )eporters Note to ' 10K 454N5N4 L4?:1)S
M4NU4L HN ()HF1SS7HN4L CHNIUC&" %1+1$1-1$L.
III. ESSENTIAL RE2UISITES OF THE ATTORNEY.CLIENT RELATIONSHIP
A' (he Lawyers 2"ties to the Client
&he )estate'ent addresses the basic re=uisites of the attorney-client
relationship in ' 1L as follows+
>%
&o the e.tent consistent with the lawyers other le*al duties and sub8ect to the
other provisions of this )estate'ent" a lawyer 'ust" in 'atters within the scope
of the representation+
213 proceed in a 'anner reasonably calculated to advance a clients
lawful ob8ectives" as defined by the client after consultationK
2#3 act with reasonable co'petence and dili*enceK
2%3 co'ply with obli*ations concernin* the clients confidences and
property" avoid i'per'issible conflictin* interests" deal honestly with the client"
and not e'ploy advanta*es arisin* fro' the client-lawyer relationship in a
'anner adverse to the clientK and
203 fulfill valid contractual obli*ations to the client.
?here in the Model )ules is each of these duties addressed@ ?hat is the
source of each of these obli*ations 2contract" a*ency or fiduciary duty3" and how does
that source i'pact on the definition and scope of the duty@ 4s we address each of
these obli*ations individually throu*hout the se'ester" we will address these and other
=uestions re*ardin* each of these duties.
So'e duties 'ay arise even before representation is underta-en or even if no
relationship ever 'ateriali,es. Section 1> of the )estate'ent sets out the duties a
lawyer owes to a prospective client. &hese duties are si*nificantly less than the duties
owed once a relationship ensues.
Note that a lawyers duties to his or her client 'ay be li'ited by an a*ree'ent
between the lawyer and the client" )1S&4&1M1N& '1D"1. (ursuant to the Model )ules"
a lawyer 'ay li'it the ob8ectives of a representation if the client consents after
consultation. M.). 1.#2c3.
)' 2ecision5!a#in$ ithin the Attorney5Client Relationship
?ithin the attorney-client relationship" the attorney and client 'ay allocate
decision-'a-in* authority by a*ree'ent. )1S&4&1M1N& ' #1. 4bsent such a*ree'ent"
a lawyer shall abide by a clients decisions re*ardin* ob8ectives and shall consult with
the client re*ardin* 'eans. M.). 1.#2a3K see also )1S&4&1M1N& '' ##"#%. &he attorney
has a duty to co''unicate with the client to the e.tent necessary to effectuate this
decision-'a-in* authority. M.). 1.0K )1S&4&1M1N& ' #$.
&o a lar*e e.tent" concepts of a*ency *overn issues of decision-'a-in* and
authority within the attorney-client relationship. &hus" courts *enerally loo- to a*ency
concepts in resolvin* =uestions re*ardin* the authority of the attorney to bind the
client. See Rosenbl"m v' -ac#s or )etter of America" !0> S.?.#d !>0" !L$-L1 2Mo.
4pp. 1DD3. 5ecause of the fiduciary nature of the relationship and the professional
role of the attorney" however" these concepts are instructive" but are not conclusive" in
deter'inin* these issues. See *enerally L4?:1)S M4NU4L at %1+%$1-%$0. &his is
especially true where settle'ent of liti*ation is involved.
>0
?ho should AcontrolB aspects of the attorney-client relationship@ Ioes it
2should it3 'atter" as the )ules appear to instruct" whether ob8ectives or 'eans are
involved@ ?hy or why not@ 7s the line between ob8ectives and 'eans always that
clear@ Can you i'a*ine a situation in which a client 'i*ht be 'ore concerned with
'eans than with ulti'ate ends@
&here are several theories that address authority and control within the
attorney-client relationship. &he standard conception" based on client autono'y" is a
client-centered approach. Under this theory" it is not for the lawyer to 8ud*e the client;s
ob8ectives or 'eans" nor is the lawyer accountable for the'" at least once
representation has been underta-en. &he lawyer;s 8ob is to advance the client;s
interests" as defined by the client. Ioin* so advances the autono'y of the client" and
is supported by principles of partisanship and neutrality. &hose who favor this view
characteri,e it as non-8ud*'entalK those who dispara*e this concept of lawyerin*
characteri,e the lawyer who plays this role as a Ahired *un.B
4 second view is so'eti'es ter'ed the 'oral activist or directive approach.
(roponents of this theory re8ect the e.tre'e role-differentiation they perceive under the
standard conception" and believe that lawyers 'ust ta-e a broader view of their
obli*ation to influence clients to 'a-e what the lawyer believes to be the 'orally
appropriate choices. ?here the lawyer has discretion" he or she is to act in ways that
are li-ely to pro'ote 8ustice. Critics of this approach =uestion why the lawyer;s view of
'orality or 8ustice should control over the client;s interests.
4 third approach" based on practical rather than theoretical considerations" is
'ore in the nature of the business 'odel. &he lawyer as-s what actions and
approaches will best advance *ood client relations and 'a-e the client happy and acts
in accordance with the answers to those =uestions. Moral issues are relevant only to
the e.tent the client 'a-es the' so.
4 final approach that has been su**ested is a collaborative 'odel" in which the
lawyer and client resolve issues to*ether throu*h 'oral discourse. 7t is ur*ed that this
is the best approach. 7n this 'odel" the client 'a-es the ulti'ate decision" but the
lawyer is actively involved in the process of deter'inin* what course should be
chosen. &he lawyer does not i'pose his or her 'oral views on the client" but wor-s
with the client to help the client articulate his or her own 'oral position. ?hile this
'odel wor-s well in theory" it is harder to 'a-e wor- in practice.
?hat are the pros and cons of each approach@ ?hich is 'ore consistent with
your own views of lawyerin* and le*al practice@
Finally" an i'portant e'er*in* di'ension of the lawyer-client relationship
relates to cultural co'petence. 4s our society beco'es 'ore diverse" an attorney
needs to be sensitive not only to the stated ob8ectives of the client" but to the cultural
conte.t in which the attorney-client relationship e.ists. 7t is i'portant for lawyers to be
co*ni,ant of the e.tent to which their own cultural conte.t influences their
understandin* and e.pectations of their clients and to be aware of the e.tent to which
>>
cultural differences can i'pact the attorney-client relationship. 4'on* the issues
attorneys 'ust pay attention to are perception and use of interpersonal space" body
lan*ua*e" ti'e and priority considerations" narrative preferences" individual vs.
collective orientation and scientific orientation. &o be sensitive and effective in this
re*ard" lawyers should cultivate their own cultural identities" ac-nowled*in* biases and
oppression that their culture contains. See $enerally" (aul ). &re'blay" Interviewin$
and Co"nselin$ Across C"lt"res: .e"ristics and )iases" Clinical L. )ev. %!%" %D>-010
2#$$#3K Michelle Macobs" People from the Footnotes: (he !issin$ Element of Client5
Centered Co"nselin$, #! 9olden 9ate U. L. )ev. %0>" 0$$-0$1 21!3K Susan 5ryant"
(he Five .abits: )"ildin$ Cross C"lt"ral Competence in Lawyerin$" D Clinical L. )ev.
%% 2#$$13.
IV. THE FINANCIAL ASPECTS OF THE ATTORNEY.CLIENT RELATIONSHIP
1.cept in cases of pro bono representation" the client will *enerally have a
financial relationship with the attorney as part of the attorney-client relationship. ?hat
is appropriate with re*ard to fees@
Model )ule 1.> *overns attorneys; fees. M.). 1.> 2a3 prohibits the char*in* of
unreasonable fees or e.penses. See also )1S&4&1M1N& U%0. &he )ule sets out factors
that are to be considered in deter'inin* reasonableness" but does not prioriti,e a'on*
those factors. 7n *eneral" where a fee is ne*otiated at ar's; len*th between a lawyer
and client with *enerally e=ual bar*ainin* power" it will rarely be second-*uessed.
Lawyers 'ust co''unicate the scope of the representation and the basis or rate of
the fee to be char*ed early in the representation" preferably in writin*. M.). 1.>2b3.
&here are 'any types of fees" includin* hourly fees" flat fees" contin*ent fees
and hybrids. Special rules *overn the use of contin*ency fees. See )1S&4&1M1N& U%>.
&hey are prohibited in cri'inal and do'estic cases" M.). 1.> 2d3" and" where an
alternative fee would better serve the client;s interests" that alternative should be
offered to the client. See Co''ent" Z%. 4dditionally" special rules re=uire that
contin*ent fees be in writin*. See M.). 1.>2c3 for these re=uire'ents.
Lawyer-client fee contracts are not directly addressed by the rules" but
*uidance is provided in the )estate'ent. See )1S&4&1M1N& U %D. Splittin* of fees is
addressed in the )ules" however. Lawyers not in the sa'e fir' can only split fees
under li'ited circu'stances" see M.). 1.>2e3 and )1S&4&1M1N& U 0!" and lawyers 'ay
not split fees with non-lawyers. See M.). >.0.
V. TERMINATING THE ATTORNEY.CLIENT RELATIONSHIP
9enerally" an attorney is e.pected to continue representation of a client until the
'atter for which the attorney has been retained has been co'pleted. 7n so'e
situations" either the attorney or the client will want to end the relationship pre'aturely.
Model )ule 1.1L *overns the ter'ination of the attorney-client relationship. &hat )ule
'a-es withdrawal 'andatory in certain circu'stances 2see 1.1L2a33 and per'its
withdrawal in others. 2See 1.1L2b33. )ead )ule 1.1L. 9enerally" the )estate'ent is in
accord with the )ules. See )1S&4&1M1N& ' %#. &er'ination of the relationship
>L
ordinarily ends the attorneys authority to act on behalf of the client. See )1S&4&1M1N&
' %1. ?ith re*ard to withdrawal" see *enerally L4?:1)S M4NU4L at %1+1$$1-1#1#.
?henever an attorney withdraws fro' representation" the attorney has an
obli*ation to ta-e reasonable steps to protect the clients interests. &his 'ay include
*ivin* reasonable notice of the intent to withdraw" surrenderin* property and papers of
the client and refundin* any unearned fees. See M.). 1.1L2d3K )1S&4&1M1N& ' %%.
?here liti*ation is involved" the attorney 'ay need per'ission of the court to withdraw.
See M.). 1.1L2c32#$$#3.
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