July 10, 2015

Professional Ethics Compliance: From Watergate to Today

By Hannah Hayes

In 1973, following the indictment of some 21 lawyers in the Watergate scandal, the American Bar Association responded to the public outcry by mandating ethics courses in law schools, eventually revamping its Model Rules of Professional Conduct in 1983. Since then, many in the profession—including former White House counsel and whistleblower John Dean—have debated whether the strict ethics codes in place today may have altered the outcome of the historic scandal.

As legal ethics developed as a specialty, many women lawyers have made their mark. The expanded interest in ethics goes beyond scandals like Watergate and Enron, says Lynda Shely, president-elect of Chicago-based Association of Professional Responsibility Lawyers. “It’s recognition by lawyers that the practice of law is getting harder. You have to be a lawyer 24/7, and demands keep changing.”

Today, lawyers who specialize in legal ethics must have an objective view and a clear understanding of how to apply standards such as the Model Rules of Professional Conduct to various situations.

Many mid- to large-size law firms have their own in-house counsel responsible for ensuring compliance or a go-to person in the firm who takes questions that arise over issues such as conflict of interest or jurisdiction. Corporations frequently have in-house counsel who review compliance within a specialty, or they hire outside counsel who offer professional responsibility and risk management advice.

Most state and local bars have ethics hotlines or dedicated staff who answer and investigate ethics questions. Other lawyers who specialize in legal ethics serve as expert witnesses, represent lawyers in ethical matters like law firm breakups, or serve on the many ethics and judicial qualification commissions, which vary from state to state.

Begin at the Bar

In some states, the bar association is the body responsible for disciplining lawyers charged with an ethics breach, while others have a disciplinary board appointed by the courts. Ellen Pansky represents respondents charged with violating the California Rules of Professional Conduct. Pansky began at the Office of the Trial Counsel for the State Bar of California, where she worked as a prosecutor for seven years until 1989, when she established the offices of Pansky Markle Ham LLP in Pasadena, California. The firm focuses on professional liability defense, prosecution of legal malpractice actions, state bar disciplinary defense, and other ethics consultations.

Pansky attributes the desire to set standards in the legal profession as one of the many reasons interest in professional ethics compliance continues to grow. “Before Watergate, there were virtually no ethics classes in law school,” says Pansky, who also points out that there was less lateral movement within the profession. “People tended to stay in one firm, so the older lawyers trained new lawyers as they came up.”

Shely, a sole practitioner in Arizona who represents 1,100 clients primarily in Arizona and Washington, D.C., began her career at the D.C. firm of Morgan Lewis & Bockius LLP. After relocating to Arizona, she took a staff position at the state bar. She eventually became the director of lawyer ethics, establishing an ethics hotline and developing an expertise over 10 years before going into private practice.

“The lawyers I deal with care very deeply about the profession,” Shely says. “It can be very intellectually challenging trying to figure out the right thing to do under the rules.”

In addition to the objectivity and expertise she provides, many firms look to outside counsel as backup when it comes to laying down the law for clients.

Carving Your Niche In-house

Many firms not only have their own in-house lawyers, but some have developed their own ethics specialty. Lawyers who take on this responsibility often gain experience as they come up through the ranks.

Amanda Jones is the professional responsibility counsel at the Chicago firm of DLA Piper, where her job involves everything from working with partners on managing client relationships to reviewing marketing strategies such as advertisements and social media policy. She says she also works with human resources and the pro bono department and assists lawyers with document production and “pretty much anything that comes out of the Rules of Professional Conduct.”

Jones began her career litigating at a large firm, but professional ethics drew her interest early on. “I was always something of an ethics nerd,” she confesses. “Obviously having a litigation background gives me the skill set for the responsibilities, such as to subpoena and motions to disqualify.”

Amy Bomse, a partner in the San Francisco, California, offices of Arnold & Porter LLP, says she appreciates having rules you must apply in the real world in people’s law practice. “Even though there are rules, there are a lot of gaps and gray areas,” explains Bomse, who focuses her practice on representing lawyers and law firms in litigation. “Most law firms are fairly sophisticated and recognize that an objective outsider can give a perspective that’s not internal.”

One of the only areas in professional ethics where certification is available is legal malpractice. Many firms specialize in legal malpractice, defending lawyers brought up on disciplinary matters within the bar.

Merri Baldwin is cochair of the Attorney Liability and Conduct Practice Group in the San Francisco offices of Rogers Joseph O’Donnell, PC. While she focuses on litigating business disputes, she also specializes in lawyer liability matters. She is a certified specialist in legal malpractice law in California.

Baldwin is also the vice chair of the State Bar of California Committee on Professional Responsibility and Conduct. Like most bars, it issues opinions on evolving topics such as eDocuments and social media marketing. Committee members are required to attend 8 to10 all-day meetings where opinions are drafted, vetted, and discussed before they are put out for public opinion, revised, and published.

While the work is grueling, Baldwin says she loves it. “You don’t get the opportunity for that kind of focused collaboration outside of a case matter. We go over everything in exhausting detail, examining the big concept as well as the specific wording of paragraphs.”

Advising the Professionals

While most ethics committees in state bars are extremely competitive, other opportunities exist at state and local bars for those interested in ethics compliance. Hope Todd is assistant director for legal ethics for the District of Columbia Bar, providing ethics advice and serving as staff counsel to the volunteer legal ethics and rules review committees at the bar. Her office fields more than 2,200 calls per year on its helpline, which provides guidance on the D.C. Rules of Professional Conduct. She also coauthors an ethics column for Washington Lawyer, participates in panel discussions, and teaches CLE classes.

While many ethics professionals began as litigators, it’s not always the case. Todd started out as a staff lawyer for the D.C. Bar in the chief executive office, where she developed her expertise on the job. “In that role, I had the opportunity to work on legal ethics issues that came before the governing board and general counsel until an opening came up in the legal ethics program. I had all the administrative skills, such as budgeting and supervising, so it was a matter of honing substantive expertise in legal ethics.”

A background in litigation, however, “is certainly helpful because it provides a context for the ethics rules,” says Stacy Ludwig, who was assistant U.S. attorney in the U.S. Attorney’s Office for the District of Columbia before becoming the deputy director of the Professional Responsibility Advisory Office (PRAO) in the U.S. Department of Justice in Washington, D.C. The office provides professional responsibility advice and training to some 10,000 U.S. lawyers across the country. “If you’ve done trial work, you have a better understanding about how to analyze and apply the professional responsibility rules and provide advice to your client.”

Like others in the field, Ludwig sees legal ethics as a growing area of specialization. “We’re dealing with a set of rules, and if one practices law your whole career, there’s always a chance for a misstep. The profession needs people with knowledge of the rules.”

So You Want to Specialize in Legal Ethics . . .

Many lawyers enter the profession because they feel driven to fight for social justice. Those further interested in ensuring the legal profession adheres to high standards may want to focus on professional ethics compliance. While there is no legal ethics specialty in law school or certification (except for legal malpractice), you can take some steps that will lead you in this direction.

  • Get involved in your local bar association. Most state and local bar associations have ethics committees and ethics hotlines. While state bar association committees tend to be highly competitive and selective, volunteering to answer the ethics helpline or participating on the local bar level can be a good place to begin.
  • Study the topical issues in your practice area. Nearly every area of law has ethics issues particular to that field. Technology is constantly evolving, and while ethics rules tend to stay the same, applying them to a specific situation is not always easy. Build your expertise by becoming the go-to person in your field or your firm.
  • Speak or write about ethical issues in your specialty. There’s no better way to learn about something than to research it and present your findings to your peers. Keep your ears open for topics that come up and volunteer to research them.
  • Find a mentor. Especially in big law firms, someone handles ethical issues. Be open and express your interest in helping. Many lawyers start with one or two issues and later become the trusted associate or partner who handles ethics questions.