CROSS REFERENCES Attorney Misconduct; Drugs and Narcotics; Ethics, Legal; Legal Representation; Model Rules of Professional Conduct.. The office of the attorney general was created by th
Trang 1attorney-client privilege The U.S Supreme Court’s decision in Upjohn Co v United States,
449 U.S 383, 101 S Ct 677, 66 L Ed 2d 584 (1981), ensured greater protection for confiden-tial information between a corporation and its lawyers In the mid-1970s Upjohn Company faced accusations of making questionable pay-ments to officials of foreign governpay-ments in order
to secure business from those governments In response to those accusations, Upjohn authorized its corporate attorneys to conduct investigations
of foreign payments When theINTERNAL REVENUE SERVICE(IRS) issued aSUMMONSfor the investiga-tive documents that Upjohn had left to its lawyers, Upjohn refused to comply with the request Upjohn argued that the documents were privileged The U.S Supreme Court ruled in favor of Upjohn, and this decision became the standard for determining the nature of services—
either legal or business—provided by the corpo-rate attorney
By the early 1990s the attorney-client privi-lege was narrowed by federal guidelines that were intended to combat MONEY LAUNDERING The federal government, in conjunction with Presi-dent GEORGE H.W BUSH’s crackdown on drug trafficking, pressed an IRS policy that would deter drug dealers and other criminals from disguising profits The law required attorneys to disclose to the government any cash payment in excess of
$10,000, as well as the name of the client making the payment (26 U.S.C.A § 6050 I)
In United States v Leventhal, 961 F.2d 936 (11th Cir 1992), Robert Leventhal, an attorney
in Florida, refused to disclose to the IRS the names of clients who had paid him more than
$10,000 in cash Leventhal’s clients had wished
to remain anonymous, and Leventhal argued that the attorney-client privilege gave them that right Leventhal cited the Florida Rules of Professional Conduct, which require disclosure
of confidential client information only in rare circumstances The federal government sued Leventhal The court ruled that disclosing the clients’ identities revealed only the existence of
an attorney-client relationship, a simple factual matter that is not within the scope of the privilege Therefore, Leventhal was compelled
to reveal the sources of the payments
The U.S Court of Appeals for the Sixth Circuit followed Leventhal in United States v
Ritchie, 15 F.3d 592 (1994), cert denied, 513 U.S
868, 115 S Ct 188, 130 L Ed 2d 121 (1994)
Attorney Robert Ritchie had challenged the same IRS policy, but the court noted that Congress gave the IRS broad powers to ensure compliance with the tax code Appeals court judge Alice M Batchelder held that there was no“constitutionally protected liberty interest in spending large amounts of cash without having to account for it.” Attorneys have decried the federal govern-ment’s position in such cases, but the attorney-client privilege remains useful as a defensive measure in more general circumstances The privilege remains an exception to the general rule that individuals must TESTIFY to all facts within their knowledge Rooted in ancient principles, it fosters trust within this important relationship and helps attorneys to develop fully their clients’ cases by encouraging complete disclosure of relevant information
The U.S Supreme Court declined the opportunity to further narrow the attorney-client privilege in Swidler & Berlin v U.S., 524 U.S 399, 118 S Ct 2081, 141 L.Ed.2d 379 (U.S 1998), which raised the question of whether the attorney-client privilege survived the death of the client, and thus whether following the client’s death the attorney could be compelled
to disclose information that was protected as confidential while the client was still alive The dispute arose from the investigation conducted by the Office of the INDEPENDENT COUNSEL into the 1992 firing of several White House Travel Office employees, amid allega-tions of THEFT and kickbacks from air-charter companies Deputy White House counsel Vin-cent Foster had met with a private attorney to seekLEGAL REPRESENTATIONconcerning the travel-office controversy, which the American press had since branded Travelgate The attorney took handwritten notes at the meeting Nine days later, Foster committedSUICIDE
Subsequently, a federal GRAND JURY, at the request of the Office of the Independent Counsel, issued subpoenas for the handwritten notes as part of a new investigation into whether crimes had been committed in obstructing the earlier investigations into the travel-office firings Foster’s attorneys moved toQUASH the SUBPOENA
on the grounds that they were protected from disclosure by the attorney-client privilege The federal district court ruled that the notes were still protected by privilege, and it denied enforcement of the subpoenas In reversing that ruling, the Court of Appeals
418 ATTORNEY-CLIENT PRIVILEGE
Trang 2recognized that most courts assume that the
privilege survives death, but noted that such
references usually occur in the context of the
well-recognized TESTAMENTARY exception to the
privilege allowing disclosure for disputes among
the client’s heirs In re Sealed Case, 124 F.3d 230
(D.C Cir 1997) The court said that the risk of
posthumous revelation, when confined to the
criminal context, would have little or no chilling
effect on client communication, but that the
costs of protecting communications after death
would be high Concluding that the privilege is
not absolute under such circumstances, and that
a balancing test should apply instead, the
appeals court recognized a posthumous
excep-tion to the attorney-client privilege for
com-munications in which the relative importance to
particular criminalLITIGATIONis substantial
The U.S Supreme Court reversed, noting
that courts generally presume that the
attorney-client privilege extends beyond the death of the
client, even in the criminal context, and that, at
the very least, the burden was on the Office of
the Independent Counsel to show that reason
and experience required a departure from that
rule The Office of the Independent Counsel
had failed to make a sufficient showing to
overturn the common law rule that is embodied
in the prevailing case law
“Knowing that communications will remain
confidential even after death encourages the
client to communicate fully and frankly with
counsel,” the Court wrote “While the fear of
disclosure may be reduced if disclosure is
limited to posthumous disclosure in a criminal
context,” the Court continued, “it seems
unreasonable to assume that it vanishes
alto-gether.” The Court emphasized that “[c]lients
may be concerned about reputation, civil
LIABILITY, or possible harm to friends or family,”
and thus “[p]osthumous disclosure of such
communications may be as feared as disclosure
during the client’s lifetime.”
FURTHER READINGS
Epstein, Edna Selan 2007 The Attorney-Client Privilege and
the Work-Product Doctrine 5th ed Chicago: American
Bar Association.
Freedman, Monroe H 2004 Understanding Lawyers’ Ethics.
3d ed New York: Bender.
Gillers, Stephen 1979 The Rights of Lawyers and Clients.
New York: Avon.
Lerman, Lisa G., and Philip G Schrag 2005 Ethical
Problems in the Practice of Law (Casebook) Frederick,
MD: Aspen.
Noona, John M., and Michael A Knoerzer 1989 “The Attorney-Client Privilege and Corporate Transactions:
Counsel as Keeper of Corporate Secrets ” In The Attorney-Client Privilege under Siege Tort and Insur-ance Practice Lake Buena Vista, FL, May 10–14.
Rice, Paul R 2009 Attorney-Client Privilege in the United States Eagan, MN: West.
Tinkham, Thomas, and William J Wernz 1993 Attorney-Client Privilege, Confidentiality, and Work Product Doctrine in Minnesota Minneapolis: Dorsey & Whitney.
CROSS REFERENCES Attorney Misconduct; Drugs and Narcotics; Ethics, Legal;
Legal Representation; Model Rules of Professional Conduct.
ATTORNEY
A person admitted to practice law in at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients These functions include providing legal counsel, drafting legal documents, and representing clients before courts, administrative agencies, and other tribunals
Unless a contrary meaning is plainly indi-cated this term is synonymous with“attorney at law,” “lawyer,” or “counselor at law.”
In order to become an attorney, a person must obtain a JURIS DOCTOR degree from an
ACCREDITED LAW SCHOOL, although this require-ment may vary in some states Attendance at law school usually entails three years of full-time study, or four years of study in evening classes, where available A bachelor’s degree is generally a prerequisite to admission to law school
With few exceptions, a person must pass the
BAR EXAMINATION of that state in order to be admitted to practice law there After passing a bar examination and practicing law for a specified period, a person may be admitted to the bars of other states, pursuant to their own court rules
Although an attorney might be required by law to render some services PRO BONO (free of charge), the individual is ordinarily entitled to compensation for the reasonable value of services performed He or she has a right, called
an attorney’s lien, to retain the property or money of a client until payment has been received for all services An attorney must generally obtain court permission to
discontin-ue representation of a client during the course
of a trial or criminal proceedings
Certain discourse between attorney and client
is protected by the ATTORNEY-CLIENT PRIVILEGE In the law of evidence, the client can refuse to
Trang 3divulge and prohibit anyone else from disclosing confidential communications transmitted to and from the attorney Notwithstanding, attorneys are permitted to make general (non-privileged) pre-trial statements to the press if there is a
“reasonable likelihood” that the statements will not interfere with a fair trial or otherwise prejudice the due administration of justice (In re Morrissey, 168 F.3d 134 [4th Cir 1999])
CROSS REFERENCES Attorney-Client Privilege; Attorney Misconduct; Continu-ing Legal Education; Legal Education; Legal Representation; Right to Counsel.
ATTORNEY GENERAL The attorney general is the chief law enforcement officer of the United States or of a state government, typically serving in an executive branch position The individual represents the government in litigation and serves as the principal advisor to government officials and agencies in legal matters The attorney general is head of the U.S
JUSTICE DEPARTMENTand chief law officer of the federal government He or she represents the United States in legal matters generally and gives advice and opinions to the president and
to other heads of executive departments as requested In cases of exceptional gravity or special importance, the ATTORNEY general may appear in person before the U.S Supreme Court
to represent the interests of the government
As head of the Justice Department, the U.S attorney general is charged with enforcing federal laws, furnishing legal counsel in federal cases, construing the laws under which other executive departments act, supervising federal penal institutions, and investigating violations
of federal laws The attorney general also supervises and directs the activities of the U.S attorneys and U.S marshals in the various judicial districts (U.S attorneys PROSECUTE all offenses against the United States and prosecute
or defend for the government all civil actions, suits, or proceedings in which the United States
is concerned; U.S marshals execute all lawful writs, processes, and orders issued under authority of the United States.)
The office of the attorney general was created by the First Congress in the JUDICIARY ACT OF 1789 (An Act to Establish the Judicial Courts of the United States, ch 20, § 35, 1 Stat
U.S Attorneys General
Charles Lee 1795-1801 Washington & John Adams
Caesar A Rodney 1807-1811 Jefferson & Madison
William Wirt 1817-1829 Monroe & John Q Adams
Benjamin F Butler 1833-1838 Jackson & Van Buren
John J Crittenden 1841 Harrison & Tyler
John J Crittenden 1850-1853 Fillmore
James Speed 1864-1866 Lincoln & Johnson
Benjamin H Brewster 1881-1885 Arthur
Augustus H Garland 1885-1889 Cleveland
William H.H Miller 1889-1893 Harrison
Charles J Bonaparte 1906-1909 Roosevelt
George W Wickersham 1909-1913 Taft
Herbert Brownell Jr 1953-1957 Eisenhower
[CONTINUED]
420 ATTORNEY GENERAL
Trang 473, 92–93) The First Congress did not expect
the attorney general—a part-time employee
with scant pay, no staff, and little power—to
play a major role in the emerging federal
government As the members of the First
Congress established a system for the
enforce-ment of federal laws, their primary concern was
to protect state and individual freedoms and to
avoid the creation of a central legal system that
would allow the tyrannies they had experienced
as American colonists under George III
There-fore, the Judiciary Act gave the attorney general
just two principal duties: (1) to prosecute and
conduct all suits in the SUPREME COURT OF THE
UNITED STATESthat concerned the United States
and (2) to give an opinion on questions of law
when asked to do so by the president or heads
of other executive departments
The early attorneys general spent little time
arguing before the Supreme Court because few
cases traveled through the nation’s developing
court system and even fewer warranted
Su-preme Court review Together, the first three
attorneys general—Edmund Randolph,WILLIAM
BRADFORD, and Charles Lee—represented the
United States in the Supreme Court only six
times in their collective years in office
Furthermore, early attorneys general were
specifically restricted by the Judiciary Act from
participating in lower-court actions District
attorneys (known in the early 2000s as U.S
attorneys) held the authority to represent the
United States in district and circuit courts Each
DISTRICT ATTORNEY could independently decide
which cases to pursue and on what grounds, a
situation that soon resulted in a number of
contradictory legal positions for the federal
government Because the attorney general had
no power to direct district attorneys in their
lower-court LITIGATION, the officeholder was
often unaware of litigation that concerned the
interests of the United States
In a letter to President GEORGE WASHINGTON
dated December 26, 1791, Attorney General
Randolph expressed concern about the
limita-tions of his office and complained specifically
about the lack of a defined relationship with the
district attorneys Randolph was the first of
many attorneys general to point out that their
prescribed duties did not allow them to fully
look after the interests of the United States, and
he was the first to propose an expansion of the
office’s duties and jurisdiction
Ignoring complaints and proposals, Con-gress remained reluctant to expand the duties of the attorney general and often passed legislation that assigned special legal functions to officials
in other government departments For example,
in the early 1800s, Congress created aSOLICITOR
of the treasury to handle all suits for the recovery of money or property in the United States, a move that further complicated the attorney general’s efforts to fully look after the interests of the government
With court appearances limited by the lack
of both cases before the Supreme Court and jurisdiction to oversee lower-court cases, opin-ion writing consumed most of the time of early attorneys general Together, Attorneys General Randolph, Bradford, and Lee wrote more than
40 formal opinions on such diverse issues as
IMMUNITY for diplomats, applications for
PATENTS, and the choice of directors for the nation’s first federal bank However, early attorneys general were not required to provide the government with written records of their opinions When WILLIAM WIRT, the eleventh attorney general, took office in 1817, he found that his predecessors had provided no record of their past opinions to guide his deliberations
Understandably, early attorneys general, who received only a small stipend for their services and relied on the private PRACTICE OF LAW for
U.S Attorneys General
Term
Richard G Kleindienst 1972–1973 Nixon
Benjamin R Civiletti 1979–1981 Carter William French Smith 1981–1985 Reagan
Richard Thornburgh 1988–1991 Reagan & George Bush
John Ashcroft Alberto R Gonzales Michael B Mukasey Eric H Holder
2001–2005 2005–2007 2007–2009 2009–
George W Bush George W Bush George W Bush Barack Obama
SOURCE: U.S Department of Justice, “The Attorneys General of the United States,” available online at http://www.usdoj.gov/ag/attygeneraldate.html (accessed on August 12, 2009).
Nicholas deB Katzenbach 1965–1966 Johnson
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
Trang 5their personal income, spent little money to hire clerks to transcribe and preserve their work
They simply relied on the recipients of their opinions to retain them for future reference
Still, legislative attempts to provide the attorney general with an office, a clerk, and supplies continually failed to win support
The limited duties outlined for the attorney general by the First Congress, along with the lack ofPERQUISITESfor the office, made it difficult for presidents to attract qualified appointees and keep them in office Even President Washington had difficulty convincing his per-sonal attorney and long-time friend, Randolph,
to take the job Washington finally won Randolph over by pointing out that service as attorney general might enhance his earning opportunities in private practice In fact, Ran-dolph did not profit much from the prestige of the office during or after his tenure Subsequent attorneys general did profit handsomely from the experience, but early officeholders often had difficulty balancing the dual commitments to private practice and public service
The commitment to public service for early attorneys general was further complicated by institutional tensions between the executive, legislative, and judicial branches of government, which all claimed the officeholder’s time, services, and allegiance It has been said that the attorney general serves “three masters”: the president, the Congress, and the courts (Ameri-can Enterprise Institute for PUBLIC POLICY Re-search 1968) Although the attorney general advises the president, the basic authority of the office is derived from Congress and the functions
of the office are subject to congressional control
In addition, the attorney general is a member of the bar and, therefore, an officer of the court subject to the directives of the judicial branch
Although the First Congress defined the relationship between the attorney general and the president, it did not define the relationship between the attorney general and Congress In addition, it was notably silent regarding who was ultimately to decide when and whether the interests of the United States were“concerned”:
nothing in the Judiciary Act of 1789 specified who should control the attorney general or to whom she or he should report Early attorneys general took orders from the Congress as well as from the president and the heads of other executive departments Attorneys general were often asked
to deliver opinions to Congress on legislative proposals, and they came to be viewed as authorities on constitutional issues—much to the chagrin of both legislators, who frequently disagreed with their interpretations, and members
of the judiciary, who assumed that they themselves were the final arbiters in constitutional matters The attorney general has also been said to straddle the legal and political worlds When Congress created the executive departments, it did not specify who should or should not be members of the president’s cabinet, and it could not predict the level of influence held by any one individual In the early years, the attorney general did not have cabinet rank but served
as counsel to those who did However, as Washington’s personal legal adviser, Randolph participated in cabinet meetings as early as
1792, establishing the PRECEDENT for attorneys general to have a hand in making policy as well
as in interpreting and enforcing the laws The attorney general’s role in policy making soon brought into question the extent to which party lines and presidential preferences influenced his
or her legal advice Over time, some attorneys general handled the dilemma with more integrity and less partisanship than others The lack of centralized authority and the lack
of basic institutional support for the office of the attorney general began to be remedied by Congress
in the early nineteenth century Subsequently, many of the issues caused or influenced by conflicting allegiances were dissolved or clarified through administrative policy and legislation
In 1814, during the term of Attorney General RICHARD RUSH, President JAMES MADISON
made the first move to expand formally the presence (if not the duties) of the attorney general, by proposing a requirement that the attorney general reside in or near Washington, D.C., while Congress was in session The residency requirement had previously been resisted by some attorneys general Although it made the officeholder available to the president and Congress when the attorney general was most needed, it also made the private practice of law more inconvenient to an attorney general who lived far from the Capitol
Attorney General Wirt (1817–1829), under PresidentsJAMES MONROEandJOHN QUINCY ADAMS, was the first to comprehend fully the office-holder’s need for administrative structure During his tenure, the attorney general was
422 ATTORNEY GENERAL
Trang 6finally given government office space, a
tran-scribing clerk, and a small fund for office
supplies The practice of providing opinions to
Congress was also curtailed during this period,
when Wirt presented a paper to President
Monroe outlining the extent of his
congressio-nal workload and his objections Wirt told the
president that opinions had been provided to
Congress in the past as a courtesy, not as a
MATTER OF LAW Wirt told the president the
practice would not continue unless Congress
revised the law and made it mandatory
By 1853, whenCALEB CUSHINGbecame
attor-ney general under PresidentFRANKLIN PIERCE, the
officeholder had four clerks and—for the first
time—a salary comparable to those of other
cabinet officers Also in 1853, Cushing decided it
was no longer appropriate to continue the
private practice of law while in office He was
the nation’s first full-time attorney general
Recommendations that a department of law
be created by Congress were discussed as early
as 1830 and were championed by numerous
presidents and attorneys general ADEPARTMENT
OF JUSTICEwas first suggested in 1851 by Alex H
H Stuart, secretary of the newly established
DEPARTMENT OF THE INTERIOR
No action was taken by Congress until
February 25, 1870, when the Joint Committee
on Retrenchments (appointed to find ways of
reducing government expenditures) drafted a
bill to consolidate legal functions and create a
department of justice The bill was made into
law four months later, and the Justice
Depart-ment officially came into existence on July 1,
1870 (An Act to Establish the Department of
Justice, §17, 16 Stat 162[June 22, 1870])
The June 22, 1870 law created a new
position, that ofSOLICITOR GENERAL, whose holder
is in charge of representing the government in
suits and appeals in the Supreme Court and in
lower federal trial and appellate courts, in cases
involving the interests of the United States The
law also provided for two assistant attorneys
general It gave the attorney general complete
direction and control of the U.S attorneys and
all other counsel employed on behalf of the
United States Moreover, it gave the attorney
general supervisory powers over the accounts of
district attorneys, marshals, clerks, and other
OFFICERS OF THE COURTinvolved in federal matters
The first attorney general to head the new
department was Amos T Akerman of Georgia,
appointed by PresidentULYSSES S.GRANTin 1870
So, 81 years after the creation of the office of the attorney general, the nation finally had a full-fledged organization to administer and enforce its laws Evolution in the position of attorney general culminated in the formation of the Justice Department
In the late twentieth and early twenty-first centuries, U.S attorneys general, including
JANET RENO andJOHN DAVID ASHCROFT, have been
at the center of extensive media attention Reno, for example, was the subject of intense scrutiny for her role in the deaths of about 80 members
of the Branch Davidians, an armed religious sect, near Waco, Texas, in 1993 The deaths occurred when the FEDERAL BUREAU OF INVESTIGA-TION, following a long standoff, set fire to the group’s compound during an attempted raid
Reno later took responsibility for the FBI actions Subsequently, Reno was involved in the return to Cuba of a refugee child named Elian Gonzalez in April 2000 Reno ordered officers of the Immigration and NATURALIZATION
Service to raid the home of the child’s relatives
in Miami in order to return the child to his father, who remained in Cuba Ashcroft, a former U.S senator and governor of Missouri, was at the center of attention throughout the investigation of terrorists following the Septem-ber 11, 2001, attacks on the United States
Still, perhaps the most controversial news regarding the Office of Attorney General involved the proposed IMPEACHMENT of ALBERTO GONZALES, appointed to the position by President
GEORGE W BUSH in 2001 He was the first Hispanic American to be appointed to that office and also the first U.S attorney general to face impeachment In September 2008, the Office of the Inspector General (OIG) within the U.S Department of Justice (DOJ) released
an investigation report clearly critical of his performance the Report of Investigation Regard-ing Allegations of MishandlRegard-ing of Classified Documents by Attorney General Alberto Gonzales ostensibly concerned itself with Gonzales’s handling of documents containing classified information about the National Security Agency (NSA) sensitive surveillance program relating to national intelligence However, during the course of the investigation, the OIG learned of other instances of potential mishandling of classified documents by Gonzales The security compromise unequivocally violated Justice De-partment policies as well as the Federal
Trang 7Criminal Code, which contains provisions relating to the improper handling of classified documents (e.g., 18 USC 1924) But Gonzales was not prosecuted, for he had already resigned
a year prior (September 2007) amid a stormy controversy in Congress over his role in the firing of nine U.S attorneys He was about to face an impeachment inquiry by the House of Representatives at the time of his resignation
The growth of the office of the attorney general from a part-time, one-person operation into a vast and complex law enforcement organization is an inseparable part of the story
of the United States and the development of its institutions As the role of government has expanded, so too has the role of the nation’s attorney general Moreover, though the attorney general’s role continues to grow and evolve, the basic duties of the office and the structure of its supporting organization have been in place since the Civil War
State Attorneys General
State attorneys general possess many of the same powers and responsibilities as their counterpart
in the federal government A state attorney general’s office is typically a part of theEXECUTIVE BRANCH of the state government He or she is generally entrusted with the duties of prosecuting suits and proceedings involving state government and advising the governor and other administra-tive officers of the state government Many state statutes also establish the state attorney general as the official legal advisor or representative of various departments and agencies
In some states, the power of the attorney general is limited to those specified by statute
The powers of most attorneys general are subject to the desires of the legislature, although powers in some states are prescribed by statute
In fulfilling the advisory function of the office, attorneys general are often requested to draft advisory opinions related to the application of the law to a particular agency or official These opinions are generally not considered binding
on the general public, though in some instances they may be binding upon the officials that request them
FURTHER READINGS American Enterprise Institute for Public Policy Research.
1968 Roles of the Attorney General Washington: D.C.:
American Enterprise Institute for Public Policy Research.
Baker, Nancy V 1985 Conflicting Loyalties: Law and Politics
in the Attorney General’s Office, 1789–1990 Lawrence: Univ Press of Kansas.
Justice Department 1990 200th Anniversary of the Office of Attorney General, 1789–1989 Washington, D.C.: Justice Department.
Powell, H Jefferson 2002 A Community Built on Needs: The Constitution in History and Politics Chicago, IL: Univ.
of Chicago Press.
Justice Department 2008 “Report of Investigation Regard-ing Allegations of MishandlRegard-ing of Classified Documents
by Attorney General Alberto Gonzales ” Available at http://www.usdoj.gov/org/special/50809/final.pdf; web-site home page: http://www.usdoj.gov/org/ (accessed September 1, 2009)
CROSS REFERENCES Justice Department; Officers of the Court; Supreme Court
of the United States; Question of Law; Washington, George.
ATTORNEY MISCONDUCT Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures
More than any other profession, the legal profession is self-governing That is, it is largely regulated by lawyers and judges themselves rather than by the government or outside agencies In particular, theAMERICAN BAR ASSOCI-ATION(ABA), the largest professional association for attorneys, governs the PRACTICE OF LAW
through its establishment of rules of conduct These rules are then adopted, sometimes in a modified form, by state courts and enforced by court-appointed disciplinary committees or bar associations Attorneys found to be in violation
of professional standards are guilty of miscon-duct and subject to disciplinary procedures Disciplinary action by a stateBAR ASSOCIATIONor other authority may include private reprimands; public censure; suspension of the ability to practice law; and, most severe of all, dis-barment—permanent denial of the ability to practice law in that jurisdiction The state supreme court is the final ARBITER in questions
of professional conduct in most jurisdictions Since 1908 the ABA has been responsible for defining the standards of proper conduct for the legal profession These standards, many of them established by the ABA Standing Com-mittee on Ethics andPROFESSIONAL RESPONSIBILITY, are continuously evolving as society and the practice of law change over time In 1969 the ABA passed its Model Code of Professional Responsibility, guidelines for proper legal con-duct that were eventually adopted by all
424 ATTORNEY MISCONDUCT
Trang 8jurisdictions The ABA modified the code by
adopting the Model Rules of Professional
Conduct in 1983 The model rules have been
used by 40 states to create official guidelines for
professional conduct; 11 states or jurisdictions,
including Washington, D.C., and the Virgin
Islands, have continued to base their ethical codes
on the earlier model code California has
devel-oped its own rules of professional conduct
Whatever their basis, these codes or rules define
the lawyer’s proper role and relationship to the
client It is essential that lawyers understand the
ethical codes under which they must operate
Failure to do so may result in not only disciplinary
action by the relevant professional authorities but
also MALPRACTICE suits against the lawyer A
malpractice suit may result in loss of money or
the ability to work with specific clients
Rule 8.4 of the Model Rules of Professional
Conduct contains the following statements on
attorney misconduct:
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or
induce another to do so, or do so through
the acts of another;
(b) Commit a criminal act that reflects
adversely on the lawyer’s honesty,
trustwor-thiness or fitness as a lawyer in other
respects;
(c) Engage in conduct involving dishonesty,
FRAUD, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to
the administration of justice;
(e) State or imply an ability to influence
improperly a government agency or official;
(f) Knowingly assist a judge or judicial officer
in conduct that is a violation of applicable
rules of judicial conduct or other law
Besides issuing these general statements, the
model rules set down many specific requirements
forATTORNEYconduct in different situations
Because of an attorney’s special relationship
to the law, he or she is held to a special standard
of conduct before the law, as the ABA asserts in
its Lawyers’ Manual on Professional Conduct:
As members of the bar andOFFICERS OF THE
COURT, lawyers are beneficiaries of the
privilege of the practice of law and also are
subject to higher duties and responsibilities
than are non-lawyers A lawyer’s fiduciary
duties arise from his status as a member of
the legal profession and are expressed, at
least in part, by the applicable rules of professional conduct
The word fiduciary in this quotation comes from the Latin word fiducia, meaning “trust”; as
a fiduciary, then, the attorney acts as the trusted representative of the client Trust is thus a defining element of the legal profession, and without it, the practice of law could not exist
For that reason, the legal profession has created strict rules of conduct regarding the attorney’s relationship with the client
Attorney-Client Relationship
The model rules set forth specific guidelines defining the attorney-client relationship An attorney will be guilty of misconduct, for example, if she or he fails to provide competent representation to a client, to act with diligence and promptness regarding a client’s legal concerns, or to keep a client informed of LEGAL PROCEEDINGS Charging exorbitant fees or over-billing is also considered misconduct, as is counseling a client to commit a crime For example, trial lawyer Harvey Myerson was suspended in 1992 from the practice of law by the New York Supreme Court after he was convicted of overbilling by millions of dollars (In re Myerson, 182 A.D 2d 242, 588 N.Y.S.2d
142 [N.Y App Div 1992])
Many types of attorney misconduct involve
a CONFLICT OF INTEREST on the part of the attorney A conflict of interest arises when an attorney puts personal interests ahead of professional responsibilities to the client The model rules specify the potential for conflict of interest in many different situations Thus, for example, an attorney who by representing one client adversely affects another client has a conflict of interest and is guilty of misconduct
Conflict of interest rules also forbid an attorney
to enter into a business transaction with a client unless the client is fully aware of how the transaction will affect his or herLEGAL REPRESEN-TATION and agrees to the transaction in writing
Similarly, an attorney is guilty of misconduct if
he or she makes a deal with the client for acquisition of the book, film, or media rights to the client’s story Providing a client with financial assistance also introduces a conflict
of interest into the attorney-client relationship
If an attorney is related to another attorney
as parent, child, sibling, or spouse, that attorney may not represent a client in opposition to the related attorney except when given consent to
Trang 9Attorney-Client Sexual Relations
T
B
he American Bar Association (ABA) has
recognized sexual relations between attorneys
and their clients as a significant ethical problem for
the legal profession The ABA’s Standing Committee
on Ethics and Professional Responsibility addressed
this issue in 1992 by issuing a formal opinion (no
92-364) Although the opinion acknowledged that the
Model Rules of Professional Conduct do not
specifically address the issue of attorney-client
sex, it argued that an attorney’s sexual relationship
with a current client“may involve unfair exploitation
of the lawyer’s fiduciary position and presents a
significant danger that the lawyer’s ability to
represent the client adequately may be impaired,
and that as a consequence the lawyer may violate
both the Model Rules and the Model Code.”
Becoming sexually intimate with a client, the
opinion adds, undermines the “objective
detach-ment” necessary for legal representation because
“[t]he roles of lover and lawyer are potentially
conflicting ones.” In addition, the opinion argued,
attorney-client sex introduces a clear conflict of
interest into a case, and it may also compromise
attorney-client privilege, the principle that ensures
the confidentiality of lawyer-client communication
Any secrets revealed to an attorney by a client
outside of their legal relationship may not be
protected by attorney-client privilege
Proponents of professional rules against
attor-ney-client sexual contact argue that the legal
profession should follow the example of other
professions such as psychology and psychiatry,
and create strict sanctions against sex with clients
Legal clients, these proponents say, are often
vulnerable when dealing with attorneys, particularly
in such areas of legal practice as family law
A lawyer who becomes sexually involved with a
client in a divorce proceeding can take advantage
of the client undergoing emotional trauma That
lawyer may hinder any attempts at reconciliation
between a couple and complicate matters for any
children involved Sexual relationships between
lawyer and client may also affect custody and child
visitation decisions in the case The American
Academy of Matrimonial Lawyers, in its Standards
of Conduct in Family Law Litigation, specifically
prohibits attorney-client sex: “An attorney should never have a sexual relationship with a client or opposing counsel during the time of the represen-tation” (§ 2.16 [1991])
Some attorneys object to such rules, arguing that they interfere with their First Amendment rights
to freedom of association They bristle at the notion
of state bar associations regulating the private affairs of consenting adults Nevertheless, attorneys are increasingly being disciplined for becoming sexually involved with clients, and state bar associations are drafting clearer and more stringent rules against attorney-client sexual contact Wis-consin’s Supreme Court, for example, in 1987, revoked the license of an attorney in part because
he had sex with a client (In re Hallows, 136 Wis 2d
72, 401 N.W.2d 557) The attorney, the court argued, was “placing his interests above” those of his client In 1990 the same court for the first time suspended the license of a criminal lawyer who had sex with a client (In re Ridgeway, 158 Wis 2d 452,
462 N.W.2d 671) Oregon and Minnesota have adopted outright bans on attorney-client sexual contact Rule 1.8(k) of the Minnesota Rules of Professional Conduct, which became effective July
1, 1994, forbids attorney-client sexual contact during the conduct of a professional legal relationship It allows exceptions to the rule only for relationships beginning before legal representation has com-menced or after it has ended In the case of clients that are organizations rather than individuals, an attorney may not have sexual contact with any member of the client organization directly oversee-ing the case
FURTHER READINGS Awad, Abed 1998 “Attorney-Client Sexual Relations.” Journal
of the Legal Profession 22 (annual): 131 –91.
Kane, Andrew W., et al 1992 “Attorney Sexual Misconduct.”
American Journal of Family Law 6 (fall): 191 –95.
Shirey, William K 1999 “Dealing with the Profession’s ‘Dirty Little Secret ’: A Proposal for Regulating Attorney-Client Sexual Relations ” Georgetown Journal of Legal Ethics 13 (fall): 131 –60.
Struzzi, Melissa A 1999 “Sex behind the Bar: Should Attorney-Client Sexual Relations be Prohibited? ” Duquesne Law Review 37 (summer): 637 –57.
426 ATTORNEY MISCONDUCT
Trang 10do so by the client This type of conflict of
interest has become increasingly common as
more women enter the legal profession and the
number of marriages between attorneys grows
State bar associations, such as that of Michigan,
have held that these guidelines also apply to
lawyers who are living together or dating but are
not married The potential for conflict of
interest when the opposing attorneys are
married or romantically involved is clear
Imagine a woman representing a client in a
PERSONAL INJURY lawsuit seeking millions of
dollars worth of damages from a manufacturer,
with her husband representing the
manufactur-er As a couple, they have a monetary interest in
gaining a large settlement from the
manufac-turer, thereby giving the husband an incentive
to lose his case Given this conflict of interest,
the couple is obligated to reveal to their clients
the fact that they are married If the clients agree
to go ahead with the case regardless of the
conflict of interest, then the attorneys may
decide to continue their representation
Special examples of conflict of interest have
arisen in cases involving indigent defendants who
must use publicly provided defense attorneys In
many jurisdictions, it is considered misconduct
for an attorney to refuse court appointment as a
public service defender for a poor client, even
when a spouse’s legal associate or firm is
involved on the opposing side of the case
Normally, for example, state bar associations
allow a DISTRICT ATTORNEY to PROSECUTE persons
defended by partners or associates of the district
attorney’s spouse as long as the client is notified
of the situation; similarly, they will allow a
district attorney’s spouse to defend persons
prosecuted by other members of the district
attorney’s staff Nevertheless, in a 1992 case,
Haley v Boles, 824 S.W.2d 796, the Texas Court
of Appeals found that a conflict of interest gave a
court-appointed attorney grounds to refuse
appointment as a PUBLIC DEFENDER for a poor
client ThePROSECUTORwas married to the
court-appointed counsel’s law partner, creating a
potential conflict of interest According to the
court’s decision, a poorDEFENDANTwho must rely
on a public defender has fewer choices for legal
representation than a defendant who can afford
to employ her or his own attorney Therefore,
an attorney who has a conflict of interest
must be able to refuse to represent a client as a
public defender without being charged with
misconduct, thereby ensuring that the client
receives legal representation free of a conflict of interest
Any breach of the trust by the attorney that underlies the relationship between that attorney and the client can be considered misconduct For example, an attorney is often called upon to hold
or transfer money for a client, and in this situation, the client places an extraordinary amount of trust
in the lawyer Any misuse of the client’s money by the attorney—called misappropriation of client funds—constitutes a serious breach of trust and a gross example of misconduct This offense includes stealing from the client, mingling the attorney’s money with that of the client, and controlling client funds without authorization
The model rules require that funds given to a lawyer by a client be kept in an account separate from the lawyer’s own account
To encourage clients to inform their attor-neys of all details relevant to a case, ethical codes also entrust attorneys with preserving the confidentiality of the information their clients give them; any failure to do so constitutes misconduct on the part of the attorney The law protects attorney-client confidentiality with the principle of ATTORNEY-CLIENT PRIVILEGE, and under very few circumstances is it lawful to breach this privilege of confidentiality The privilege may be revoked to prevent the client from “committing a criminal act that is likely to result in imminent death or substantial bodily harm” (Model Rules of Professional Conduct, Rule 1.6 1983), or to respond to civil
or criminal proceedings made by the client against the attorney Except for these rare cases, only the client may WAIVE the attorney-client privilege of confidentiality
Sexual contact between an attorney and a client is almost always considered a breach of conduct Sexual contact represents a clear breach of attorney-client trust It is also a clear conflict of interest because it can easily result in the attorney’s placing his or her own needs above those of the client, and it makes it difficult for the attorney to argue the client’s case dispassionately
Other Types of Misconduct
As the model rules indicate, an attorney may be charged with misconduct if she or he commits a criminal act However, not all violations of the law may result in professional censure Accord-ing to the ABA, a lawyer is professionally