The Ethical Obligations of Lawyers Practicing in Different Areas of the Law

Ethical obligations form the cornerstone of legal practice, ensuring that lawyers uphold the law, maintain the integrity of the profession, and protect the interests of their clients. These obligations can vary depending on the area of law in which a lawyer practices. Each practice area has its own set of regulatory bodies, court decisions, and statutes, so it is important that lawyers ensure they’re well-versed in their practice area(s) of choice. While the fundamental ethical principles remain consistent across the board, specific practice areas introduce unique challenges and responsibilities that necessitate a deeper understanding and adherence to ethical standards.

General Ethical Principles for Lawyers

An attorney’s various responsibilities and obligations are outlined in the American Bar Association’s (ABA’s) Model Rules of Professional Conduct. Each state may have its own rules that deviate from the Model Rules in being more restrictive or more lenient, and it is imperative that attorneys consult their respective states’ rules of professional conduct to ensure there are no differences. Running afoul of these rules can have grave consequences for both the attorney and the client.

General ethical principles apply to all lawyers, regardless of practice area, jurisdiction, or practice type. These include, but are not limited to (as referenced from the Model Rules):

1. Competence. Representation requires the necessary legal knowledge, skill, thoroughness, and preparation. Lawyers must ensure that they do not handle matters that they know or should know they are not competent to handle.
2. Confidentiality. Lawyers shall not reveal information relating to the representation of a client unless authorized within Rule 1.6 of the Model Rules. This includes confidential information or using such information to harm the client or help the lawyer or a third person.
3. Conflict of interest. Lawyers shall not represent a client if doing so compromises their ability to represent clients impartially and effectively. Conflicts of interest extend to current clients, former clients, organizations, and those that trigger imputed disqualifications.
4. Diligence. Lawyers shall act with reasonable diligence and promptness in representing a client. A lawyer should not neglect legal matters or intentionally fail to carry out the retainer agreement.
5. Truthfulness. Lawyers shall not engage in dishonesty, fraud, deceit, or misrepresentation. It’s imperative that their ethical foundation be rooted in truthfulness.

Overlap

Lawyers may have cases that involve multiple overlapping areas of the law at the same time. It is very common to have family law cases that overlap with criminal law, entertainment law cases that overlap with intellectual property law, or corporate law cases that overlap with tax law. Attorneys must ensure they are aware of their ethical obligations as they apply to each practice area. Below, we explore several practice areas.

Criminal Law

Prosecutors, as representatives of the state, must ensure they’re actively seeking justice as opposed to merely securing convictions. It is their duty to ensure that they use legitimate means to produce any conviction. Their ethical duties include, but are not limited to:

1. Discretion and fairness. Prosecutors must ensure that the decisions to pursue cases and charges are not influenced by external pressures, bias, or prejudice. This includes providing fair plea deals and avoiding overcharging defendants. Unfortunately, there have been instances where defendants have been overcharged as an intimidation tactic to force the accused to accept a lesser charge through a plea deal.
2. Disclosure of evidence. A prosecutor’s failure to disclose exculpatory evidence to the defense could lead to wrongful convictions, among other ramifications. Withholding evidence that could exonerate a defendant or mitigate their culpability is a severe ethical breach. Unfortunately, as we’ve seen in the news, some prosecutors will stop at nothing to secure a win, even at the price of someone’s life.
3. Conflicts of interest. Prosecutors must remain impartial and avoid personal, professional, or financial conflicts.
4. Upholding the constitution. Prosecutors must ensure they respect the constitutional rights that are afforded to defendants, including but not limited to the right to a fair trial and the right to counsel. The goal for prosecutors should be to seek justice—which includes protecting the public from wrongful convictions.

Defense attorneys focus on protecting the individual interests of their clients. Although their ethical framework is different, a framework is still present:

1. Honesty and integrity. While attorneys must zealously advocate for their clients, false statements and evidence must be avoided. One can be a zealous advocate while acting in a principled, ethical manner. This is part of their duty to the court.
2. Competence. Defense attorneys must be well-versed in criminal law and procedure to provide clients with adequate representation. This is particularly important when it comes to evaluating legal strategies and potential plea deals.

Family Law

Cases involving divorce, child custody, and domestic violence can be contentious and complex. Whether helping clients navigate a divorce or assisting them in child support matters, family lawyers commonly work with clients during an extremely stressful period in the clients’ lives. Ethical obligations include:

1. Focus on the child’s best interests. Determining and working to guarantee the best interests of the child is the basis for custody decisions, regardless of the location. This ethical standard protects the mental, emotional, and physical well-being of the child and must be prioritized by lawyers when litigating on behalf of their clients.
2. Confidentiality. Attorneys must maintain confidentiality generally, but especially in domestic violence cases; information regarding victims must be protected to keep them safe.
3. Conflicts of interest. Lawyers cannot represent both parties in a divorce case, even if the matter is uncontested and the parties have agreed on the terms of a settlement agreement; lawyers are unable to provide sound legal advice to both parties because the parties may have competing interests.
4. Competence in handling trauma. Lawyers aren’t expected to be therapists, but there is an expectation that they exercise empathy—especially in cases involving domestic violence and child abuse.
5. Exchange of information and documents. Lawyers should not use the discovery process to delay the proceedings or harass the opposing party. Clients tend to look to their lawyer as an example of how to behave while the case is pending or active and may emulate this behavior. It’s important that lawyers create an environment conducive to resolution.
6. Use of mediation and settlement. Lawyers often encourage mediation and settlement to resolve disputes amicably and minimize the emotional toll on families. Of course, these suggestions are to be made as appropriate and must not be forced upon the client.
7. Avoidance of needless or false filings. Whether it is a divorce or child support case, lawyers should ensure their clients are being transparent and honest (as is reasonably practicable). Far too often, parties file fraudulent child abuse or domestic violence reports in an attempt to gain an advantage in the eyes of the court. Within reason, lawyers should ensure all filings are honest and accurate.

Corporate Law

Work in this practice area includes representing businesses and corporations in such matters as litigation, business acquisition, mergers, company/corporation formation, and compliance. The ethical obligations associated with this practice area include the following:

1. Confidentiality. Attorneys must maintain the confidentiality of sensitive business information and protect attorney-client privilege, even when interacting with various departments within the company. This includes the company’s legal strategies and work product.
2. Competence, diligence, and preparation. Lawyers must be knowledgeable about relevant laws and regulations affecting the client’s industry. Being well prepared and being able to provide timely and accurate legal advice to help their clients navigate legal risks and opportunities is crucial.
3. Conflict of interest. Corporate attorneys must manage potential conflicts between the interests of the company and those of individual employees or shareholders. Lawyers must ensure that they make it clear that they represent the organization/company and not any of the constituents.
4. Compliance and ethics. Attorneys must ensure that their clients comply with all applicable laws and regulations. The attorney’s role is crucial in promoting a culture of ethics and integrity within the organization. This applies to situations where a constituent is acting, intends to act, or refuses to act in a way that (1) violates a legal obligation to the organization or breaches a law (which could be attributed to the organization) and (2) is likely to cause significant harm to the organization.
5. Whistleblowing and reporting. When dealing with instances of corporate misconduct, lawyers often encounter the ethical challenge of deciding whether to report unlawful or unethical actions. They must carefully balance their responsibility to the company with their duty to uphold the law and safeguard the public interest.
6. Duty to the courts. Corporate lawyers must uphold their duty of candor to the court, regardless of the situations that may arise. This includes legal matters that are in the public eye and subject to media scrutiny. Lawyers have a duty to refrain from making false statements, filing frivolous lawsuits, misleading the public, or presenting false or misleading evidence.

Environmental Law

Attorneys working in environmental law frequently represent government bodies, nonprofit organizations, and private entities engaged in matters that impact natural resources and the adherence to environmental regulations. Their ethical responsibilities encompass, but are not limited to:

1. Conflict resolution. Attorneys may need to address conflicts between their clients’ business goals and environmental obligations. This involves seeking solutions that safeguard the environment while ensuring the business can function efficiently.
2. Regulatory compliance. Attorneys must ensure their clients adhere to all applicable environmental regulations. This involves guiding clients on regulatory obligations and assisting them in establishing compliance programs.
3. Transparency and disclosure. Attorneys must ensure that their clients properly disclose environmental risks and impacts in their communications with stakeholders, such as investors, regulators, and the public.
4. Sustainable practices. Attorneys should promote the adoption of sustainable practices among their clients to reduce environmental impact. This involves providing guidance on environmental risk management and corporate social responsibility.

Fulfilling Our Ethical Responsibilities

On a macro level, ethics is guided by commonsense principles such as candor, truthfulness, confidentiality, and competence. On a micro level, however, lawyers must be aware of the intricacies within each practice area’s additional ethical guidelines to ensure they’re in compliance. It is important that lawyers keep themselves abreast of their duties and expectations as they interact with clients, the court, and society.

Lawyers must be mindful that overlap between practice areas is common, and they must make the necessary changes as such situations arise. For example, a divorce case might include elements of criminal law due to charges between the parties. In such cases, lawyers must be aware that what is permissible when representing clients in family law matters might not be permissible in the realm of criminal law. The same applies to business law and intellectual property law or environmental law and real estate law—each practice area requires attention to its distinct nuances.

By adhering to ethical standards, lawyers uphold the integrity of the legal profession and contribute to a just and equitable society. Understanding and addressing the specific legal obligations in different areas of law is crucial for lawyers to fulfill their duties both effectively and ethically.