Ethics Counsel on www.OKbar.org

The Rules of Professional Conduct: Read Them Again, for the First Time

By Travis Pickens, OBA Ethics Counsel

If you were to pass on one statute book or e-file from your library that a new lawyer should read in order to become a fine, successful lawyer, which would it be? Civil procedure? I don’t think so. They change too often. The evidence code? Probably not. Not everyone goes to trial. The discovery code? I hope not. Discovery statutes and rules can be read as, well, cynical. The U.S. Constitution? Perhaps, but the Rules of Professional Conduct are a better choice. To understand why, one must see the rules in a different way, as different from a long list of restrictions. You should read them again, for the first time.

A lawyer’s responsibilities

The rules explain why it is important to be a lawyer and to be a good lawyer. The rules open with the “Preamble: A Lawyer’s Responsibilities.” The preamble sets out why most of us chose this difficult but fulfilling career.

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyer may serve as a third-party neutral (e.g. judge, arbitrator, mediator), a nonrepresentational role helping the parties to resolve a dispute or other matter… [parenthetical added]

***

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship. (emphasis added)

Lawyers make the legal system work. Without the legal system, nothing else works.

Protection for lawyers and the public

Secondly, the rules, properly understood, protect us lawyers, as much as the general public. If there were no written, reasonable ethical standards, and lawyers faced the prospect of having to defend ourselves against whispery accusations of vague wrongdoings from the public, it would be a frightening thing indeed. Abuses of the disciplinary process (e.g. unfounded grievances) by the public is an everyday fact and risk for lawyers, but imagine what it would be like without relatively clear rules and laws to follow. Very few grievances would be dismissed summarily without specific standards of conduct. The fact that most grievances amount to nothing is precisely because lawyers most often do the right or reasonable thing as defined by a specific standard upon which the conduct can be judged without a hearing and without further disruption to the attorney’s career.

A guide to a good practice

Finally, the rules, if faithfully followed, are a guide to a healthy and prosperous practice (which thereby in turn, guards the integrity of the justice system and protects the public). Among other things, the rules stress mastery of subject matter, diligence, effective advocacy, good communication with the client, tasteful marketing, the importance of client confidentiality and integrity, and the value and worth of public service. The rules are we lawyers’ book of Proverbs, our Wisdom text. Have you ever known a lawyer you respected who did not exemplify most if not all these attributes? It is unlikely any other book or electronic file in your office contains any better advice to someone interested in success as a lawyer.

For us, the Rules of Professional Conduct should be a sacred text. The rules tell us why we are here, offer protection from those who would harm us, and provide a practical guide for a successful lawyerly life. Read them again, for the first time.

About The Author

Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.

Originally published in the Oklahoma Bar Journal -- Feb.13, 2010 -- Vol. 81 No. 5 

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org.