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Researching Professional Responsibility

Professor Barbara Glesner Fines
University of Missouri - Kansas City School of Law

©1997, updated 2008

 

Table of Contents

Introduction to Researching Professional Responsibility Issues

Professional Responsibility Themes and Representative Research Issues

 Sources of Authority

Tools and Methods for Locating Sources of Authority

 

CHAPTER ONE -- INTRODUCTION

The need for research guidance for professional responsibility issues is greater today than ever. In the past, attorneys could view many issues of professional responsibility less as requiring compliance with "legal" rules and more in light of informal professional norms. Guided by aspirational canons, unwritten community norms, and individual ethical standards, the attorney questioning his own conduct or duty would consult colleagues, reflect, and come to a decision. Research for regulatory standards was less common than is now required -- in part because fewer clear written standards existed, and in part because the risk of making an uninformed decision was far smaller.

 Today, attorneys can no longer rely solely on "common sense" to address professional responsibility issues. Given the increasing diversity and mobility of the profession, an individual attorney's standards of practice are not as likely to coincide with the norms of the professional community as they once were. Rather, not only has professional regulation become more precise and objective, it also reaches a broader range of conduct than in the past. From the largely aspirational ABA Canons of Ethics in 1908, to the more refined guidance of the 1969 Code of Professional Responsibility, to the regulatory 1983 Model Rules of Professional Conduct, the trend is toward affirmative regulation.

 Likewise the risk of uninformed action is greater. Forty years ago, the legal profession regulated itself through more informal than formal mechanisms. An attorney's reputation in the community was better known and more central to his success in the profession. The competitiveness and diversity of today's legal community weakens the impact of informal controls such as reputational harm. As well, consumer activism has led to greater regulation of the providers of legal services. The increased media access to and knowledge of attorney conduct makes such activism easier to generate. Consequently, attorneys can find themselves subject to discipline, sanctions or liability more often, for more reasons, than ever before. With this increased risk comes an increased need for rigorous and thorough research and analysis to answer issues of professional conduct.

The unique sources of law and methods of research in this area provide more reasons to pay special attention to researching professional responsibility issues. While many of the sources of professional responsibility standards can be located through a "key word" approach to research in codes or case digests, other sources require alternative approaches both as to methods and materials.

CHAPTER TWO - PROFESSIONAL RESPONSIBILITY THEMES AND REPRESENTATIVE RESEARCH ISSUES

The following chart provides an overview of research topics in the area of professional responsibility. It is not designed to be exhaustive, but merely representative, to you some idea of the breadth of legal and regulatory issues that can become involved in attorney conduct.

Additionally the chart may be used to locate sources for guidance on these issues. Court interpretations of standards of professional conduct may be especially difficult since the issues are often raised in the context of procedural issues. Thus the research vocabulary for locating these opinions may not be immediately obvious. Conflict of interest standards, for example, are most often addressed by courts in cases addressing disqualification of counsel. Likewise, confidentiality issues are raised in the context of evidentiary privileges. Not only are these contexts for the professional responsibility issues less than intuitively obvious, the researcher must recognize that the procedural context can change the meaning of the professional responsibility standard. For example, the confidentiality standards of disciplinary codes are not identical to the confidentiality standards of the evidentiary privileges.

  

 
______________________________________________________________________ 
 
COMPETENCE
 
Malpractice, Breach of Contract/Warranty     
Admission, Unauthorized Practice of Law       
Ineffective Assistance of Counsel                   
Model Rule 1.1 Competence                     
Model Rule 1.2 Scope of Representation        
Model Rule 1.3 -1.4 Diligence / Communication 
Model Rule 1.16 Declining/Terminating Repres. 
 
_______________________________________________________________________ 
 
LOYALTY                     
 
Conversion, Fraud, Misrepresentation          
Disqualification                              
Model Rules 1.7-1.13 Conflicts of Interest    
Model Rule 5.4 Professional Independence      
Breach of Fiduciary Duty                      
Evidentiary Privileges                        
______________________________________________________________________ 
 
FAIRNESS                                                         
 
Model Rule 1.6 Confidentiality                
Fraud, Misrepresentation                      
Abuse of Process, Discovery abuse, Contempt   
Model Rule 3.2 Expediting Litigation          
Model Rule 4.1 Truthfulness in Statements to Others  
Model Rule 4.2 -4.4 Rights of Third Persons   -  Represented & Unrepresented    
Model Rule 3.4 Fairness to Opposing Party & Counsel 
Creditor's Rights; Fair Debt Collection; Liens
______________________________________________________________________ 
 
CANDOR / RELATIONSHIP TO TRIBUNAL                                                  
 
Perjury, Contempt, Obstruction of Justice     
Court rules (e.g. Rule 11 Signing of Pleading)
Administrative procedures (e.g. IRS Circ. 230)
Model Rule 3.1 Meritorious Claims/Contentions 
Model Rule 3.2 Expediting Litigation          
Model Rule 3.3 Candor toward the Tribunal     
Model Rule 3.5 Impartiality and Decorum of Tribunal                     
Free speech, Antitrust, Consumer Protection   
______________________________________________________________________ 
 
PRACTICE MANAGEMENT                                                       
 
Model Rule 1.5 Fees                           
Model Rule 5.1-5.3 Responsibilities for other 
Attorneys & Non-lawyer assistants  
Model Rules 7.1-7.5 Advertising/Solicitation  
Model Rules 1.15 Safekeeping Property         
Model Rules 6.1 - 6.4 Public service practice 
______________________________________________________________________

CHAPTER THREE -- SOURCES OF AUTHORITY

After developing a research vocabulary, one must locate relevant sources of authority. Perhaps the most difficult aspect of research in professional responsibility is the breadth of sources. Answers to an attorney's questions regarding her professional responsibility might be found in state or federal legislation, in common law standards, in rules and procedures of a court or tribunal, in licensing regulations, or in standards of national, state or local professional associations. Especially when assessing conduct to determine possible liability or sanction, it is crucial that an attorney not overlook one of these major sources of law. This section outlines each of these major sources of authority.

A. General Substantive Law

 B. Rules of Procedure and Other Court Rules

 C. Professional Regulation

 D. Aspirational and Individualized Standards

  

A. General Substantive Law

Attorneys are governed by the civil and criminal law just as anyone else, of course. Accordingly, any professional responsibility issue should be analyzed first from the perspective of its general legality. In particular, attorneys should be aware of laws that, while not specifically addressing attorneys, are likely to apply to the situations in which attorneys act. These laws include statutory and common law standards governing fiduciary relationships, professional corporations, personal service contracts, creditor/debtor rights, and the variety of fraud and misrepresentation laws found in the common law and statutes. In some instances, immunities from general legal proscriptions might apply to lawyers (for example, judges may have immunity from libel for statements made during trials).

 Moreover, some statutory and common law standards do apply solely to attorneys. Examples of statutes governing attorney conduct in particular include:

  • Statutes governing unauthorized practice of law
  • Statutes governing conduct of attorneys working for a governmental body.
  • Statutes providing causes of action for inteference with the administration of justice and contempt authority.
  • Statutes governing attorneys fees - payment to appointed counsel, allowance of fees in certain actions, collection by attorneys of fees.
  • Statutes governing attorney governance - Bar Associations, IOLTA fund system, legal expenses insurance.
  • Statutes providing for attorney access to confidential information.

Of the common law standards governing attorneys, the most common is legal malpractice. Almost any malpractice action is likely to be accompanied by other common law actions, including intentional torts, breach of fiduciary duty, or breach of contract claims.  

B. Rules of Procedure and Other Court Rules

In practice before any tribunal, an attorney must be aware of the general and local rules of procedure, which may impose additional duties. Court rules establish standards for admission to practice before that tribunal. Other rules govern the standards of practice. These procedural rules may be directed toward the attorney or may be of general applicability, but in practice applied most often against attorneys. Procedural rules govern not only pleadings, discovery and judgment, but also may regulate communications with the court, witnesses, or jurors; establish procedures for particular actions or motions; or provide standards of good faith and candor. Rules of evidence such as the evidentiary privileges, for example, may impact attorney ethics issues as well.

Applicable standards for practice before a state trial court might be found in state codes, in rules of the Supreme Court of the State, and in local rules of Court. Likewise, admission and practice before an administrative tribunal might be regulated by state or federal legislation as well as the regulations of the particular administrative agency. For example, the United States Internal Revenue Service, 31 C.F.R. 10.20 - 10.31 (1976), the Securities and Exchange Commission, 17 C.F.R. 201.1 - 201.3 (1976), or the Interstate Commerce Commission, 649 C.F.R. Chap. X, Subchapter B, Pt. 110, Appendix A (1975), have established individual codes of ethics for those agencies by means of federal regulation.  

C. Professional Regulation

Regulation of attorneys is governed generally by the courts of the state or federal system in which the attorney practices. In most states, the courts have the inherent authority to control the practice of law, so that legislation regarding the admission to or practice of law can be declared null by the courts on the basis that regulation of lawyers is outside the scope of the legislature's powers. While the state and federal courts have the authority to regulate attorney admission and discipline, legislative regulation often accompanies regulation by court rule. 

1. Sources of State Rules of Professional Responsibility

The ABA and other professional organizations promulgate standards of conduct for attorneys. None of these standards have the force of law unless the state or federal court adopts them as official regulations. The primary ABA standards are the Model Rules of Professional Conduct (adopted in 198) and the Model Code of Professional Responsibility (1969). All states except California have adopted some version of these ABA rules. Most have adopted a version of the Model Rules of Professional Conduct.   Some still retain versions of the Model Code.   California  has its own set of rules governing attorney conduct). These state versions have the force of law. These rules are adopted as court rules in some states and as legislation in others.

Neither of the ABA standards contain procedures for imposing discipline or guidelines for choosing appropriate sanctions. Separate ABA guidelines exist on these subjects. The "Standards for Lawyer Discipline", adopted in 1979, suggest procedures for discipline. A range of sanctions and guidelines for imposing these sanctions were adopted in the 1986 "Standards for Imposing Lawyer Sanctions." These standards have been adopted by some states as the official discipline system.  (See, e.g., Florida’s standards)   Other states draw on the guidelines as sources to interpret their own discipline standards. As with the conduct rules, discipline procedures and standards may be found in state or federal codes, in court rules, or both.

For attorneys in particular roles,  for example, mediators or arbitrators , specialized standards of conduct may exist. For example, all states and the federal government have codes or rules specifically regulating judges.  These standards govern appointment, compensation, disqualification conduct and discipline. Many state standards are drawn in part from the 1972 ABA Code of Judicial Conduct.

Special regulations may also exist to guide the conduct of prosecutors or defense attorneys or of attorneys for the government. Here again the ABA has a suggested code for attorneys in the criminal justice system. The "Standards Relating to the Administration of Criminal Justice" adopted in 1979 are most often cited by the courts in determining issues of ineffective assistance of counsel, rather than adopted as court rules or state legislation. Other standards of practice may be part of legislation ("ethics in government" acts, for example), in administrative regulations (e.g. qualifications and standards for practice before certain agencies) or in governmental publications (Justice Department attorneys, for example, may find regulation of their practice in Office of Legal Counsel memoranda). Other specialized ethics "codes" are not intended to be sources of law for lawyers at all, but merely ethical guidelines. 

2. Interpretations of Rules: Ethics Opinions & Disciplinary Cases

The ABA Standing Committee on Ethics and Professional Responsibility publishes opinions interpreting the Model Rules and Code.  These opinions do not have the force of law but may be persuasive authority in litigation or discipline and are useful guides for conduct.  These opinions are divided into formal and informal opinions, much like federal regulatory opinions.  Formal opinions deal with broader, more generally applicable issues while informal opinions are limited to analysis of a particular set of facts.

Like the ABA, many state and local bar committees also give opinions interpreting the attorney regulations.  Almost all jurisdictions limit these opinions to prospective conduct and will not review conduct that has already occurred, is on-going, or is the subject of litigation or discipline proceedings. Most states also will respond only to attorneys requesting opinions as to their own conduct, rather than the conduct of others. Finally, most opinions will limit themselves to the application of state rules of professional conduct and will not pass on questions of law. Some states will issue only formal written opinions addressing hypothetical issues; others limit their opinions to private advisory responses to individual attorneys. Most states provide both private and formal opinions.

 The process of issuing these opinions varies greatly from state to state. In one common version of this process, an individual attorney will request an opinion regarding the ethics of his or her proposed conduct. Occasionally the bar grievance committee or the state court may request an opinion regarding recurrent issues stated in a hypothetical format. The chair of the ethics committee may screen these requests to determine whether they are appropriate for committee response. The chair will then appoint one of the members of the committee to draft an opinion, which the full committee will then review and edit or approve. The committee may also decide what form of response should be provided: formal public opinions or informal opinions (private advisory letters). When the opinion is issued, it is published in a state bar journal or newsletter and copies are distributed to the state law libraries.

 The authority of the state ethics opinions also varies, depending in large part on the source of authority for the ethics committee and on whether the state has an integrated bar association. In some states, for example, the body that produces ethics opinions is an arm of the state supreme court and the opinions are authoritative interpretations of the law. In other states, opinions are approved by the state bar board of commissioners, in which case it may bind the state bar association. In states in which opinions carry some authority, a process of appeal may exist: to the ethics committee, to the board of governor's of the state bar, or to the state supreme court. In most states, however, the ethics opinions are advisory only, having no binding authority over the state disciplinary system or the state bar association. Even in those states, however, an attorney's reliance on an ethics opinion may serve as evidence of a good faith attempt to comply with a reasonable resolution of a disputed issue.

Ethics Opinions are provided in both Missouri and Kansas.

While ethics opinions provide analysis of prospective conduct, disciplinary cases review past conduct. The disciplinary process in most states begins with a complaint or report of misconduct and an investigation by the bar counsel (in states with an integrated bar) or counsel for a disciplinary or grievance commission of the state's supreme court. The disciplinary agency may, after reviewing the results of that investigation, dismiss the matter, investigate further, or issue a reprimand (public or private) with the consent of the attorney whose conduct is at issue. Since these investigations and voluntary resolutions are not reported (other than publishing the names of those accepting public reprimands), much of the disciplinary process cannot be researched.

Should the process continue to a formal complaint, however, many states will publish reports of subsequent discipline. Sometimes these reports may merely recite the attorneys sanctioned and the type of sanction, without explanation or opinion; other states may issue more formal disciplinary opinions, which may be published in state bar journals or newsletters. The best resource for research of discipline standards are those cases that are appealed to the courts. Decisions in these cases are reported just as any other judicial opinions and are published in the appropriate state or federal reporter systems. Judicial opinions in cases where standards of professional conduct are relevant to the issue under consideration (e.g. malpractice, ineffective assistance of counsel) can also be important sources of guidance.

D. Aspirational and Individualized Standards

Some standards for attorney conduct do not provide a basis for regulation or discipline but act as standards to which the professional aspires. Often termed "Professionalism Codes" or "Canons of Courtesy," these standards are rarely enforceable, but do provide useful guidance in determining the proper course of conduct for attorneys.

 The first attorney code of ethics, the ABA 1908 Canon of Ethics, was largely such a set of aspirational standards. The 1969 ABA Code contained "Ethical Considerations" which also were largely designed to provide guidance without regulation, though they nonetheless sometimes became the basis for discipline. Today, most states have adopted a version of the Model Rules of Professional Conduct, which provides regulatory standards for the most part. However, additional aspirational tenents have been promulgated by specialized professional associations or state and local bar groups. For example, the ABA Torts and Insurance Practice Section has adopted the "Lawyer's Creed of Professionalism" the Young Lawyer's Section of the Kansas City Metropolitan Bar Associations promulgated the Attorney Tenets of Professional Courtesy. Other sources of ethical guidance may be found in the articles and books addressing issues of professional responsibility. Especially as to specialized fields of practice, these discussions may be the only source for in-depth analysis of ethical dilemmas or standards of practice.

 A final source of guidance and regulation of attorney conduct may be the guidelines established by the attorney's client, partners, or organization. Many large law firms have detailed policies for practice -- determining the types of cases accepted, setting up office management procedures, and establishing guidelines for resolving issues of professional responsibility. These peer review systems have, in some cases, been ordered by a court as part of disciplinary proceedings.

Attorneys for government agencies or corporations likewise may be subject to policies that guide the scope of their conduct. For example, attorneys employed through the Legal Services Corporation are subject to the guidelines of that program in the types of cases they may accept. The local legal aid office for which they work will have more specific practice guidelines. As well, the attorney may look to guidelines proposed by the National Association of Legal Aid and Public Defenders. A similar hierarchy of practice regulation may exist within law firms or corporations.

 Additional guidance or restrictions on conduct may come from an attorney's malpractice insurance carrier. These insurers often have experts on staff who can help attorneys set up office procedures and practice guidelines that will lower the risk of malpractice. Some policies may even require these procedures as a condition of insurance.

 A final note on regulation by employers and insurers: each attorney must maintain the ultimate responsibility for adhering to the standards for the profession. While third parties such as partners or insurers, and even clients, may suggest guidelines for the attorney's practice, these suggestions should not substitute for or infringe upon the attorney's own independent professional judgment.

CHAPTER FOUR -- TOOLS AND METHODS FOR LOCATING SOURCES OF AUTHORITY

For traditional sources of authority -- cases and statutes -- traditional methods of research may be appropriate. The real difficulty with this type of research is the recognition of the types of traditional sources of authority that may apply. When assessing potential criminal or civil liability, one certainly will focus on cases and statutes. Even when assessing only the impact of rules of professional conduct, however, common law and statutory standards may become important. A number of rules of the Model Code of Professional Conduct, for example, refer to other sources (as when conduct is approved "as permitted by law"). Conversely, courts and legislatures may be influenced in their development and interpretation of law by the current standards of professional regulations. This chapter reviews the approaches one can use for research and indicates when each approach will be most useful.

 A. Traditional Research Tools

B. Rules and Ethics Opinions: Specialized Reporters

C. Using Looseleaf Services

 D. Using Shepard's Citator Service as a Research Tool

 E. Starting Research with Secondary Sources

 F. Using Computerized Research

 G. People as Research Resources

  

A. Traditional Tools: Case Digests and Annotated Codes

1. Finding Statutes

Attorneys often may be unaware of legislation that governs their conduct generally as citizens or specifically as attorneys. Increasingly, however, these statutory provisions are an integral part of an attorney's professional responsibility practice, especially as that practice broadens to include a wider range of roles than merely litigator in the courtroom.

Researching statutory law is no different in this context than in any other legal context. An index or code topic approach will produce the desired authority. For example, suppose an attorney in Alabama is having difficulty in collecting fees from a client. To identify the statutory restrictions on fee collection, the attorney may begin with the index to the official state code or the annotated code. Using search terms such as "attorney and client" or "attorney's fees" he would locate statutes in Title 34 (Professions and Businesses), Chapter 3 (Attorneys-at-Law) that govern collection of fees. Alabama Code Section 34-3-61, for example, provides for attorney's liens and section 34-3-62 sets out a procedure for resolving disputes as to the amount of compensation.

One can researching statutes on the internet in a variety of ways.  Paid legal research services, such as Westlaw, Lexis-Nexis, LoisLaw, or Versuslaw, provide access to more comprehensive databases.  However, several free legal research services may be adequate for some research purposes.  The Legal Information Institute of Cornell University also has full-text databases of the entire federal code, as well as links to the state codes in each jurisdiction.  As with any research source, one should take care to note the currency of the statutes provided.  The LII, for example, publishes the official text of the federal code, which is generally about a year behind the official enactment. Another way to locate federal or state statutes is through web directories of legal information.  Two of the more comprehensive directories are Findlaw and Megalaw.  Finally, state statutes can be searched through the websites of each state.  The URL for each state’s website is http:///www.state.XX.us (with XX being the postal abbreviation).  For example, to research Missouri statutes, go to the Missouri state home page at http://www.mo.gov/  and use the menus to access legislative materials.

2. Finding Rules of Court

In the federal system, Rules of Civil Procedure, Criminal Procedure, and Evidence can be located as appendixes to the United States Code, the United States Code Service, or the United States Code Annotated. For each system, one can located the rules by either by looking at the spine of the code volumes or by searching the index to the code. Specialized reporters for these rules are also available. For example, the Federal Rules of Civil Procedure and Appellate Rules, are reported in the Finding Aids volume of the Federal Rules Service (Callaghan & Company), which is also a reporter service for federal rules cases.   Federal Rules can also be located from a variety of sources on the web (see links indicated above)

 To locate the rules of federal courts of appeals and district courts, one may use the looseleaf binder volume entitled Local Court Rules of the Federal Rules Service (Callaghan & Company). This volume contains local rules of the various district courts, admiralty rules, and court of appeals. 

Many states, like the federal system, report their rules of procedure and evidence in appendixes to the state code or annotated state code. Other rules of court may be reported in the codes or may be reported in the state case reporters. Most states also publish separate rules of court volumes. For the rules of practice before a particular court, the court clerks office is often the best and most efficient resource.

The availability of federal circuit or district court rules on the web varies.  Many courts are only beginning to construct websites.  To determine whether a particular court’s rules are available on the web, one can either start at the index of courts provided at the Federal Judiciary Homepage or use a general search engine, such as http://www.google.com

3. Finding Cases

For researching case law, again, the conventional digest approach is often the most useful. However, the topics or key numbers that are most useful may not be intuitively obvious. For many issues, court opinions can be found using the digest approach under the topic "attorney and client." For conflicts of interest questions, some standards can be gleaned from cases on motions to disqualify counsel. Other topic areas for case law research include: Contempt, Malpractice, and Rules of Court.

 One must be careful with cases as they may not be interpreting a current standard. Likewise, the standard may look the same (e.g. competence) but be quite different depending on the context (e.g. malpractice, discipline, or ineffective assistance of counsel). Accordingly, one should first focus research on the particular context in which an issue arises. Only if this produces no guidance should one look to similar standards from other contexts. Dates are important too. Court attitudes toward certain conduct have changed in regard to the practice of law just as in any other area of law (the attitude toward attorney advertising is perhaps the best example of significant change).  

Searching case law through the web follows a similar process as that for searching legislative materials.  

4. Using ALR Annotations

A number of substantive law issues relating to professional responsibility are addressed by American Law Reports (ALR) annotations, including disciplinary standards for a variety of types of practice or conduct; court-imposed sanctions for attorney conduct; and malpractice standards. These annotations can be an excellent method for locating case law. The process for researching professional responsibility issues in ALRs is similar to general legal research. The ALR Quick Index provides citations to annotations in the ALR 2nd through 4th series and the ALR Federal Series. Research under index topics such as "Attorney-Client Privilege," "Attorney or Assistance of Attorney," "Discipline & Disciplinary Actions," "Malpractice by Attorney," "Conflict of Interest," or "Contempt." ALR annotations gather state and federal case law but do not generally state rules or advisory opinions of ethics panels. 

 

 

B. Rules and Ethics Opinions: Specialized Reporters

1. ABA Models

The Center for Professional Responsibility publishes the text of the Code of Professional Responsibility, and the Model Rules of Professional Conduct and the Code of Judicial Conduct in paper-bound editions. Compilation of all three of these codes plus selected standards from the California Code, the 1908 Canon of Ethics, the American Lawyers Code of Conduct, and other standards are published annually in paper-bound editions by law school text publishers such as West Publishing Co. (Selected Statutes, Rules and Standards on the Legal Profession) and Foundation Press (Morgan & Rotunda, eds., Selected Standards on Professional Responsibility). The two primary treatises on professional responsibility, Wolfram's MODERN LEGAL ETHICS and Hazard & Hodes THE LAW OF LAWYERING (2nd Ed.), both contain appendices with the full text of the ABA Model Code and Model Rules. Yet another source for the text of the rules is Volume Seven of the Martindale-Hubble Legal Directory, which also contains a subject index and comprehensive cross-reference tables comparing the Model Rules of Professional Conduct and the Model Code of Professional Responsibility. Finally, the LEXIS/NEXIS and WESTLAW computer research services also have the text of the Model Rules and the Code of Judicial Conduct.

 Other sources provide analysis or citations along with the text of the rules. For example, the Annotated Code of Professional Responsibility (1979) and the Annotated Model Rules of Professional Conduct (1981), both published by the American Bar Foundation provide comments, cross references to other rules, and analysis of case law, ethics opinions and scholarly commentary on each section of the code or rules. Similar resources for annotated rules include the ABA/BNA Lawyer's Manual on Professional Conduct and the National Reporter on Legal Ethics and Professional Responsibility.

2. State Rules

There are several methods for locating state standards for attorney conduct. One method is to begin with the state law materials for the particular jurisdiction in which one is interested. Some standards can be located in state statutes. Standards governing attorney conduct will generally be collected under titles such as the Judiciary or Business and Professional Regulation. In other jurisdictions, the bulk of attorney regulation is adopted by Supreme Court Rules and may be located in separate volumes of the state code or in case reporters. Many state bar associations publish attorney deskbooks that contain the state's code of conduct for attorneys.

 An alternative means of locating state regulations is through national compilations of state versions of the ABA model standard. Among these sources are the National Reporter on Legal Ethics and Professional Responsibility, the ABA/BNA Lawyers Manual on Professional Conduct, and Hazard & Hodes, Law of Lawyering Vol. 2 (2nd ed. 1990). Each of these sources identifies the ABA model adopted by the state and the variations from the model as adopted by the state. The advantage of using these sources is that the researcher can identify standards from other jurisdictions that correspond to one's own jurisdiction's rules.

One the web, the Legal Information Institute of Cornell University Law School offers a listing of attorney ethics regulation by state.  Findlaw.com, Legalethics.com and other directory services also provide links to state ethics regulations.

3. ABA Ethics Opinions

The ABA Formal and Informal Opinions interpreting the Model Code and Rules are reported by the ABA in several sources. Formal and Informal Ethics Opinions (1984) covers Formal Opinions from 1967-1982 and Informal Opinions from 1974-1982. A Cumulative Index cites all published opinions from 1924-1984. More recent opinions are collected in the Recent Ethics Opinions volume.

The ABA/BNA Lawyer's Manual also provides summaries or text of ABA ethics opinions. On the web, LEXIS-NEXIS has in its ABA library all the ABA Formal Opinions (FOPIN) and Informal Opinions (INFOP); as does WESTLAW’s  ABA-ETHOP Directory.   Headnotes of the ABA Formal Opinions can be located at the ABA Center for Professional Responsibility.

4. State Ethics Opinions

Advisory opinions from state and local bar authorities and disciplinary decisions of the courts are digested in the ABA/BNA Lawyer's Manual. Older state ethics opinions are summarized in Maru, Digest of Bar Association Ethics Opinions (1970); however, this source has been updated only to 1980. Summaries of ethics opinions or disciplinary proceedings might also be published in state bar journals or newsletters.

To locate the full text of these opinions, one may refer to the multi-volume, loose-leaf service: The National Reporter on Legal Ethics and Professional Responsibility. In most states, the full text of ethics opinions are published in state bar newsletters or journals, are distributed to law libraries within the state, or are available by calling the state bar. Finally, a number of state bar associations publish desk references and subscription services that contain their ethics opinions. A few of these services provide indexes to the ethics opinions; for many, however, one must either browse through the entire set of opinions or start with a digest such as the ABA/BNA Manual.

The ABA/BNA Manual is available on line through WESTLAW.  Other web resources for locating state ethics opinions include: The Legal Information Institute of Cornell Law School, Findlaw.com, Legalethics.com and other directory services.

C. Using Looseleaf Services

1. The ABA/BNA Lawyers' Manual on Professional Conduct

Like many areas of specialized research, a looseleaf service, which gathers all relevant materials pertaining to a single subject area, can be invaluable in researching professional responsibility issues. The ABA/BNA Lawyers Manual on Professional Conduct is such a service.  This is a subscription database. It consists of the Reference Manual, the Ethics Opinions volume (1980-85); the Current Reports volume, and a bibliography volume.

 The Reference Manual is the main research tool in the series. It has three main parts. The first part provides the text of various model standards promulgated by the ABA and a table listing which states have adopted a version of the ABA Code or Rules and summarizing those state rules that differ from the ABA provisions.

The bulk of the Reference Manual is the second part, which is divided by topic areas. Each of these topic area sections is marked by a tab listing the subject covered. The current manual, for example, lists the following sections:
 

     21 Qualifications

    31 Lawyer-Client Relationship

     41 Fees

    45 Client Funds and Property

    51 Conflicts of Interest

    55 Confidentiality

    61 Trial Conduct

    71 Obligations to Third Persons

   81 Advertising and Solicitation

   91 Types of Practice

   101 Misconduct and Discipline

     201 Regulation of Bar

    301 Malpractice
 

Each of these sections is then divided into subsections addressing discrete topics. For example, the section on Client Funds & Property is divided into subsections addressing Trust Accounts -- General; Commingling; and Record Keeping; among others. For each subsection, there is a Practice Guide, which briefly summarizes the standards that apply to that issue.

The Practice Guide is a brief overview of the topic: it does not provide detailed analysis or citations to sources. The Practice Guide is followed by a Background Analysis -- basically, a research memo on the topic, providing detailed analysis of the topic, the text of relevant standards, historical development, and citations to further material.

Finally, the subsection may provide an Applications segment, which summarizes relevant opinions of courts or disciplinary authorities.

Many of these subsections are followed by bibliographies for further research in the area.

The third major part of the Reference Manual is a collection of ethics opinions issued by bar authorities after 1985. The full text of ABA Formal and Informal Opinions is published, but state and local ethics opinions are in digest form only. A separate ABA/BNA volume provides ethics opinions from 1980 to 1985. All opinions are arranged by their jurisdiction, and then in numerical order, rather than by topic.

 There are a number of approaches for using the Reference Manual. The front of this volume contains a table of contents and one could begin there. If research falls in a discrete area one might locate the tab for that topic. Each topic section has its own table of contents. Finally, at the end of the volume is an index to the manual arranged by subject or by name of case. The index provides references by tab section and page number. The index to ethics opinions is arranged by subject and provides references to the jurisdiction, opinion number, tab section and page number.

The Current Reports volume of the Looseleaf Service allows you to update your research. The reports are issued bi-weekly and filed sequentially in a separate volume. In addition to court cases, ethics opinions of bar authorities, and disciplinary decisions, the Current Reports volume highlights bar association activities and pending legislation relating to professional responsibility issues. Experts in the field provide analysis of current issues.

 The Current Reports are indexed every six months. To update research in the manual, then, one must check the date of the last update in the manual, then review the indexes to the current reports published since that date, and finally review of each of the Current Reports not yet indexed.

 In addition to the ABA/BNA looseleaf service, two other services may be especially useful for specialized topics. The Washington Service Bureau issues the Ethics in Government Reporter, which includes, not only professional responsibility issues for government attorneys, but also the reach of ethics in government laws governing any public employee. Another service provides comprehensive information on malpractice issues. The Professional Liability Reporter is published by the Professional Liability Reporter Company. Both these services are updated monthly.

D. Using Shepard's Citator Service as a Research Tool

One can also use Shepard's Professional and Judicial Conduct Citations to research a particular section of the Model Rules, Model Code, Code of Judicial Conduct, and the Formal and Informal Opinions of the ABA Standing Committee. The citator is published quarterly, with each new volume a cumulative volume replacing the last. One can use Shepard's to locate cases from the United States Supreme Court; Federal Circuit Courts of Appeals; Federal District Courts; Bankruptcy Courts and Courts of Claims; State cases at all levels reported in the National Reporter System; ALR Annotations; ABA Ethics Opinions; and a number of academic and professional law journals, including the ABA Journal. Thus, while one usually ends research by "Shepardizing" in order to update the law, in researching professional responsibility, Shepard's is an excellent place to begin research.

 To use this Shepard's citator, one must begin with a section of the ABA Code or Rules or with an ethics opinion. Remembering that the ABA Models may be varied by state regulation, one next checks for a parallel provision in the applicable state regulation. The ABA/BNA Lawyers Manual or Hazard & Hodes THE LAW OF LAWYERING are two quick sources for locating the parallel state provision. If a parallel provision exists, one can then check the Shepards for citations to the ABA provision. The Citator sections for the ABA Code are arranged by Canon, Ethical Considerations, and then by Disciplinary Rules. The sections for the Model Rules are arranged by rule number.

Even if the state provision differs somewhat from the ABA Model, Shepard's will include sources that have cited that state version. Accordingly, not all citations to a code provision will apply to the state version of the provision one happens to be researching. So it is very important to know how the applicable state code compares to the ABA Code. (Here is where the single-volume references to state codes can be especially useful).

 Also, the Codes have not remained static, either within the ABA or the states versions. Many states that now have adopted a version of the Model Rules of Professional Conduct had previously adopted the Model Code of Professional Responsibility. Where these two model codes have parallel provisions, researching the prior version of the state code may yield greater resources. Accordingly, before continuing research, an attorney should be sure to check whether the version that currently exists has been significantly changed and when it was changed. The first page of each division of the citator (e.g. Code of Judicial Conduct; Formal Opinions) provides the scope of sources cited.

Remember that Shepard's only reports cases in which a particular rule is cited. Thus it is not a comprehensive research tool -- some courts may not analyze specific rules in addressing a general professional responsibility issue. The citator be a useful starting point however.

Shepards is available on the web through LEXIS-NEXIS.  The parallel tool in the WESTLAW service is Keycite.

SUMMARY OF SHEPARD'S CITATOR RESEARCH METHOD

1.   Determine if a state code provision is relevant to the issue. 
 
Sources: State court rules;
Rules compilations (e.g. ABA/BNA;  Hazard & Hodes)                 
 
2. Identify the parallel code provision in ABA Canon, Model Code, or Rules 
 
Sources: ABA/BNA, Hazard & Hodes, Martindale-Hubble 
 
3. Shepardize the rule                  
 
Source:        Shepards P.R. Citations
 
4. Locate cases and materials cited 
 
Sources: Case reporters; Ethics opinion; compilations, Bar Journals 
 
5. Build upon any cases found 
 
Sources: Shepards State/Fed;  Regional & State Reporter Digests 
 
6. Update using Shepards Case Citators

E. Starting with Secondary Sources

Very often, secondary sources may be a crucial research tool in professional responsibility. More often than in other areas of the law, these sources may be persuasive authority for interpretation of professional regulation. In other instances, there may be no other resources available. The two primary secondary sources are treatises and journals.

1. Treatises

Numerous books on the subjects of professional responsibility and legal ethics can provide an excellent research tool for understanding issues as well as for locating additional authority. One excellent treatise on professional responsibility is C. Wolfram, Modern Legal Ethics (Practitioner's ed. 1986). Wolfram's text comes in two versions: a student edition (part of the West Publishing Hornbook Series) and a Practitioner's edition.

Modern Legal Ethics divides its discussion into four broad topics. Part one provides background on the profession as a whole and systems of regulation. Part two discusses the range of ethical issues arising in the lawyer-client relationship, reviewing not only the ABA standards and their variations and interpretations by the states but also common law and statutory restraints on attorney conduct. Part three focuses on the role of lawyers in the adversary system and as counselors. Part four deals with issues relating to the delivery of legal services: the need for and right to lawyers and the forms and funding of law practice.

The textual discussion in each of these sections is carefully footnoted, so that the text is not only a source for understanding the issues and law but is also a good finding tool for rules, advisory opinions and case law. Since the Wolfram texts are published by West Publishing Company, they provide the added advantage of cross references to the West Key Number System of the National Reporter System.

2. The Restatement of the Law (Third), The Law Governing Lawyers

The American Law Institute  began a project to restate the common law governing attorney conduct in 1986.  The official Restatement of the Law (Third), The Law Governing Lawyers was published in 2000.  Like other restatements, this restatement attempts to “comprehensively address those constraints imposed upon lawyers by law—that is, official norms enforceable through a legal remedy administered by a court, disciplinary agency, or similar tribunal.”  The form follows that of other restatements, with black-letter standards, followed by Comments,  Illustrations, and Reporter’s Notes. The Reporter’s Notes section can be a useful resources for further research. The restatement also provides tables of cases and of codes, rules, and standards, parallel tables showing the corresponding section numbers from earlier drafts of the project, cross-references to the West Digest System and ALR annotations, and an Index.

 

The Restatement is available in hardcover, or through Westlaw or Lexis.

3.  Periodicals

There is a rich collection of secondary literature on professional responsibility issues available in periodicals.  Traditional approaches to researching periodicals include the use of  Legal Resource Index (LRI) or Index to Legal Periodicals (ILP) available in text or through Westlaw or Lexis.  Specialized periodicals addressing issues of professional responsibility include the Georgetown Journal of Legal Ethics, the Notre Dame Journal of Law Ethics and Public Policy, Journal of the Legal Profession (from the University of Alabama School of Law); and the Online Journal of Ethics (from the University of St. Thomas Business School).

F. Using Computerized Research

A final method of research for professional responsibility issues is on-line database and internet research. As the cost of paper publishing continues to rise and the availability of computer technology continues to expand, this type of research is likely to become the most prevalent for attorneys of the future.

1. Legal Research Services

Both LEXIS / NEXIS  and Westlaw, provide comprehensive access to federal and state law, aba and state ethics opinions, and secondary materials, such as the Restatement Third of the Law Governing Lawyers.  Westlaw also has the ABA/BNA Lawyers Manual of Professional Conduct available on line.

2. Internet Research

Internet Resources for research are growing daily. One of the best sources for primary legal materials in professional responsibility is the Legal Information Institute at the Cornell Law School (or LII). The LII distributes course supplements on disk in a hypertextual format, and disseminates legal information via the Internet. The legal ethics materials available from LLI include text of rules of professional responsibility and rules of judicial ethics.

A second excellent internet resource for legal research in general and professional responsibility research in particular is FindLaw Internet Legal Resources. This web site contains a general index of legal information. It also contains LawCrawler, a tool for searching legal sites across the Net. Using LawCrawler, you may limit your research to legal sites in selected countries or regions, U.S. states, or U.S. government branches or agencies.

Finally, Legalethics.com is a specialized web site providing links and references to ethics rules, regulations, and articles relating to the integration of the Internet into the practice of law.

 For more information on internet resources, click on any highlighted link in Chapter Three of these materials or browse the links listed in the professional responsibility course information page.

G. People as Research Resources

Finally, remember that many law firms have ethics committees or specialists with whom you can consult. Even without formal resources, informal discussion with a trusted senior colleague can be an invaluable resource in deciding difficult ethical issues. The American Bar Association maintains a hotline as do some state bar associations: attorneys can call for assistance in researching issues of professional responsibility or simply for discussion to help formulate those issues. Many students and attorneys simply call their professional responsibility professors! ;-)