Concept
Who Regulates Lawyers
Powers of courts and other bodies to regulate lawyers
Powers to Regulate Lawyers
Who Regulates Lawyers
Rule 8.5(a) subjects a lawyer admitted in a jurisdiction to that jurisdiction’s disciplinary authority, wherever the lawyer’s conduct occurs.1 A jurisdiction, however, cannot read a grievance or suspend a license; institutions do. Four matter in this chapter: each state’s highest court, the disciplinary agencies its judiciary constitutes, the American Bar Association (ABA) with its Model Rules, and the federal courts.
Lawyers like to say the profession regulates itself, but the claim overstates their role. State courts adopt the rules that govern the practice of law, and lawyers, judges, and law professors help draft those rules without having the last word.2 The distinction has practical weight, because the same misconduct has different consequences depending on which body acts, and a body with no power over the license cannot take it away. The state’s highest court comes first. The disciplinary agencies work under its authority, and the ABA’s model rules bind lawyers only if a state court adopts them.
Inherent Judicial Power
The Maine Supreme Judicial Court explained the source of this power in Anderson v. Elliott: state high courts, its own included, hold “plenary, exclusive, and almost unchallenged power over the practice of law in all its aspects.”3 Plenary means that no part of the field is carved out. Exclusive means that no other body shares the power.
The power rests on the lawyer’s status. A lawyer enters a regulated profession and becomes an officer of the court, subject to the court’s inherent power, meaning authority the court holds in its own right.4 That status explains why a court may regulate its lawyers in ways it could not regulate ordinary litigants.
The standards the court enforces come from several places. Some derive from the criminal law and from the general law of fiduciaries. Others are peculiar to lawyers and come from traditions of the bar, designed to assure fairness and efficiency in court procedures and adjudications and to foster public confidence in both.5 The two aims differ. Fairness and efficiency concern how each case is decided, while public confidence concerns whether people outside the courthouse trust the result.
The court writes these traditions into rules. The Maine court had embodied one of them in Maine Bar Rule 3.3(a), and it noted that rules adopted in its rulemaking capacity bind the bar and all other courts and carry the full force of law in its own deliberations when it sits as the Law Court.6 The same holds across states. The rules of professional conduct are binding law, not summaries of what decent people would do, and state courts adopt them, generally the highest court.7 New York is the quirky exception: it vests the rulemaking power in the four appellate divisions of its trial-level supreme court.8
Discipline runs to the same place. States use a variety of agencies to regulate lawyer conduct, but in all jurisdictions the highest court holds the ultimate authority to discipline, with sanctions ranging from reprimand to disbarment.9 Rule 8.5(a) fits that structure: the jurisdiction that admits a lawyer holds disciplinary authority over the lawyer wherever the conduct occurs.10
A question that names the legislature, a lawyers’ association, or a national body as the source of a lawyer’s binding duties is testing whether you locate the power in the court. Each of those bodies may propose and draft, but only the court’s adoption gives a proposal the force of law.
Disciplinary Agencies and Bar Associations
Lawyers who violate the rules are disciplined by official entities that the state’s judiciary constitutes.13 States name these entities differently. Colorado has an Attorney Regulatory Committee, Illinois an Attorney Registration and Disciplinary Commission, and Washington an Office of Disciplinary Counsel. This chapter calls any of them the state disciplinary authority.
Some states call the entity the “state bar,” a name that suggests a private club of lawyers policing themselves. The label misleads. Even in those states, the ultimate authority to discipline lawyers rests with the state’s courts.14 The agency does the work of discipline, but the highest court keeps the final authority, and the sanction carries weight because that court controls the license.15
The MPRE uses the same vocabulary. When a question refers to discipline by the “bar,” “state bar,” or “state disciplinary authority,” it means the appropriate agency in the jurisdiction with authority to administer the standards for admission to practice and for maintenance of professional competence and integrity.16 The definition covers two functions, getting into the profession and staying in it with integrity, and both flow from the court’s authority over the practice of law.
These bodies also answer to the Constitution. Keller v. State Bar of California shows the kind of limit that applies: a state may require lawyers to belong to and fund a mandatory bar, but the bar may not use compelled dues to support political or ideological activity unrelated to regulating the profession. Money spent to investigate and prosecute misconduct serves the regulatory function that justifies compulsory membership. Money spent to lobby for a political position does not.
The ABA and Model Rules
Rule 8.5(a) speaks of “this jurisdiction” because the Model Rules are written for each state to adopt as its own.19 The ABA drafted the text, but the Model Rules are, as the name suggests, nothing more than suggestions that state courts may adopt.20 Until a state’s highest court acts, the model text binds no lawyer in that state, and the ABA, which neither licenses nor disciplines anyone, cannot supply the missing authority.
The state rules a lawyer must follow may differ from the Model Rules.21 A court may adopt the model as written or change it, and the version adopted is the law the disciplinary authority enforces.
The first question about any alleged violation is therefore which jurisdiction’s code applies, and only then what the model text says.
Inside any code, the comments can matter as much as the text. A conflict rule that turns on whether a new matter is “substantially related” to a former client’s matter does not define that phrase in its text. Comment [3] does: matters are substantially related if the lawyer may have learned confidential information of the former client that could be used to that client’s detriment in the representation of the new client.22 When a rule leaves a term undefined, look to the comments for its working meaning, and pay close attention to any comment your instructor assigns.
Because a lawyer may be subject to discipline in the admitting jurisdiction and in any other jurisdiction where the lawyer provides or offers to provide legal services, a lawyer may have to read more than one state’s code.23
Federal Courts and Government Lawyers
Federal practice raises a question the state-court analysis leaves open: does a lawyer who works for the United States, or who appears in a federal courthouse, escape the state rules? For government lawyers, a federal statute answers no. An attorney for the Government “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”25
The sentence has three working parts. It names the law that applies: state laws and rules, together with local federal court rules. It supplies the hook, which is each state where the attorney engages in official duties. A government lawyer who works in two states answers to the rules of both, much as Rule 8.5(a) reaches a lawyer who provides legal services in a jurisdiction where the lawyer is not admitted.26 The statute then sets parity as the measure: “to the same extent and in the same manner as other attorneys.” Federal employment therefore lifts a government lawyer above none of the rules that bind the lawyer on the other side of the same case.
Federal tribunals also set ethics rules of their own. A lawyer practicing before a federal tribunal must identify the rules that tribunal has adopted, which may be the rules of the state where the federal court sits, the court’s own independently promulgated rules, or some combination of the two.27
Which jurisdiction’s conduct rules govern a particular act is a separate choice-of-law question, and it returns later in this chapter under Rule 8.5(b). That paragraph does not limit anyone’s disciplinary authority, and paragraph (a) confirms that any lawyer licensed or practicing in a state is subject to that state’s disciplinary authority. Rule 8.5(b) matters when a lawyer faces conflicting rules from more than one jurisdiction, because it frames which jurisdiction’s rule applies to the case at hand.28