Every state has laws governing attorney ethics and professional responsibility. These laws, along with the ABA Model Rules of Professional Conduct, provide guidance for attorneys and their clients.
It is established in Manchester law that, absent unique circumstances, departing lawyers may not, prior to giving notice of their departure from a firm, ask current clients to follow them to the new firm.
The duty of loyalty involves a lawyer’s obligation to maintain the confidence and secrets of clients. It also requires the attorney to exercise independent professional judgment. In some cases, this may require the lawyer to refuse to represent a client whose interests conflict with those of the lawyer or law firm.
In these situations, a lawyer must inform the prospective client of the conflict and seek permission from the prospective client to continue representing them. If the client does not consent, the lawyer must terminate representation or seek a new client. Lawyers must not reveal confidential information to third parties unless required by law or court order. In addition, lawyers must refrain from ad hoc relationships with persons outside the practice of law. These relationships may interfere with the lawyer’s duty to clients and jeopardize the integrity of the legal profession.
Some attorneys believe that they owe a duty of loyalty to former clients. They argue that they would relish the opportunity to take positions directly adverse to present or former clients of their firms at the bargaining table or in the courtroom. However, Rule 1.10 is a bulwark against this delight. It prevents lawyers from seeking to advance their own interests at the expense of their current and former clients. It also prohibits lawyers from preserving or creating evidence that they know is false.
A lawyer’s duty of confidentiality is a fundamental aspect of the attorney-client relationship. Client confidentiality is a fiduciary duty that extends beyond the termination of a representation. Lawyers are required to preserve confidential information unless they receive express or implied consent to disclose it or are otherwise permitted by law. This obligation even applies to information contained in a lawyer’s files. Lawyers are also required to protect their client’s confidential information by taking reasonable precautions to prevent unauthorized disclosure.
Despite this duty, there are many situations where a lawyer’s duty of confidentiality may be breached. For example, if a lawyer discovers that a prospective client has committed a crime or is in danger of doing so, the attorney must notify the proper authorities (Massachusetts Rules of Professional Conduct, PDF). Attorneys must also disclose confidential information if ordered to do so by a court or law enforcement agencies.
When a lawyer decides to leave a firm, it is important for the firm to ensure the smooth transition of client matters. For this reason, firm partnership/shareholder/member/employment agreements often contain provisions that require attorneys to give the firm a reasonable notification period before leaving. However, these notification periods should not be imposed to punish a departing attorney or discourage other lawyers from competing with the departing firm. This is a violation of the ethical obligations of loyalty and confidentiality.
The ethical standards lawyers follow are important because they help establish a level of trust in society. They also ensure that the legal system is fair and just. Lawyers are entrusted with the highest levels of power and authority, and the public relies on them to act in their best interests. As a result, there are many questions about how and whether lawyers should be held accountable for their conduct. Some of these issues are related to malpractice, wrongful death claims, and ethics violations. Others are more broad jurisprudential questions about how the bar as a profession should operate and carry out its values.
Clients expect and deserve a lawyer’s undivided loyalty and zealous advocacy for their rights. However, it is important to remember that a client’s relationship with a lawyer can be complicated, particularly when it comes to communication. It is not uncommon for clients to be unhappy with the outcome of their case or the way their attorney communicates with them. These types of complaints do not usually involve unethical behavior and should be handled by a lawyer’s supervisor or another person.
Lawyers should be able to work without fear of intimidation, hindrance or harassment, both within their own countries and abroad. This includes freedom of expression, association, assembly and travel in accordance with recognized professional duties and ethics.
Lawyers have a duty to practice competently. If they fail to do so, they may be guilty of malpractice. This includes a pattern of incompetent behavior that shows the lawyer cannot or will not acquire the knowledge and skills necessary for a minimally competent practice. However, it does not necessarily mean that the attorney intended to harm clients or otherwise violate the law.
The duties of competence include a lawyer’s obligation to exercise independent professional judgment and to refrain from taking employment that creates a conflict of interest. It also requires a lawyer to safeguard entrusted funds and avoid obtaining money for unearned fees. In addition, lawyers are obligated to reveal any fraud committed by their client to a person or tribunal.
In 2012, Rule 1.1 of the ABA’s Model Rules was modified to add a new requirement to this duty: “To maintain the requisite level of skill and knowledge, a lawyer should keep abreast of developments in the law and technology.” In this way, lawyers can ensure that they are competent to provide legal services.
In countries where there are groups, communities, or regions whose needs for legal representation are not adequately served, governments, professional associations of lawyers, and educational institutions should take special measures to provide them with opportunities to enter the legal profession. They should also make sure that lawyers are aware of the ideals and ethical duties of the profession.
