Attorney misconduct is unethical or illegal conduct by an attorney. Attorney misconduct may include: conflict of interest, over billing, refusing to represent a client for political or professional motives, false or misleading statements, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while neglecting to disclose prior law which might counter the argument, and in some instances having sex with a client.
The advent of electronic record keeping and "e-discovery" has also resulted in a record number of attorney sanctions for a range of abuses from failure to produce to the leaking of sealed documents. In a case highlighting such abuses, in 2007 plaintiffs in a pharmaceutical lawsuit were found to conspire with attorneys and journalists to publicize protected discovery documents defying a judge's protective order.
Legal malpractice is a separate concept such as when an attorney fails to adequately, professionally, competently, or zealously represent a client. While malpractice and misconduct may often be found in the same matter, they are separate concepts and need not both exist.
Codification of rules and enforcement
The American Bar Association (ABA) has established model rules of professional conduct expected of attorneys, which most states in the U.S. have incorporated as part of their state laws. Each state issues its own set of rules governing the ethical rules and the related enforcement of those rules, generally through their state bar associations. As the state bar organizations and their enforcement mechanisms are composed of lawyers who set the rules, the regulation of attorney ethics is self regulated and self policed. The self-regulation of any industry by its economic participants poses an inherent conflict of interest between the professional objectives of the members of the profession and those for whom the regulation would protect. Some academic researchers and industry pundits have asserted that attorney discipline in the U.S. is ineffective, and favors lawyers and law firms.
Individual lawyers or their firms may be cited for misconduct by a judge in the originating proceedings or by a corresponding state bar.
Notes and references
- Attorney E-Discovery Sanctions At All-Time High, FindLaw blog, January 20, 2011.
- When conspirators defy protective orders, Washington Legal Foundation, April 27, 2007.
- Leslie C. Levin, The Emperor's Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Sanctions, 48 American University Law Review 1 (1998).
- Paula A. Monopoli, Legal Ethics and Practical Politics: Musings on the Public Perception of Lawyer Discipline, 10 Geo. J. Legal Ethics 423, 425 (1997)
- William T. Gallagher, "Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar," 22 Pepp. L. Rev. 485, 490-491.(1995)