- FEATURE ARTICLE: What Do We Do When Our Institutions Fail Us?
- NEW AUTHORITY: Colorado Bar Ethics Committee Opinion 146
- ETHICS & MALPRACTICE RESEARCH TIP: New Articles from The Current Index of Legal Periodicals
- BLAST FROM THE PAST: Excerpt from Julius Henry Cohen, The Law: Business or Profession? (1924)
EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
April 30, 2023
What Do We Do When Our Institutions Fail Us?
I have been a lawyer for 43 years, and there has not been a day when I doubted my choice of profession. I have held many legal jobs—as a practitioner, a teacher, and a law school dean. While there have been a few times when I worried about the law and the legal profession, I always believed that law was the bedrock upon which our republic was built, and that Americans generally venerated the law and legal institutions. As a teacher of contracts, ethics, and legal history, I am keenly aware of the critical role that trust plays in making the law, legal institutions, and the legal profession function effectively. The essence of the lawyer-client relationship is fiduciary responsibility, which is built on trust. Similarly, as is often pointed out, our courts do not possess sufficient enforcement assets to force the American people to follow their decisions. Americans obey the law because we believe in it. When too many people lost faith in the law, we fought a civil war—something I pray will never happen again.
It is within this context that I find myself becoming seriously troubled at what is now happening in the United States. I am seeing what seem to be multiple breakdowns in the law, the legal profession, and legal and law-related institutions. I see so many that I fear that the underlying societal compact by which our republic survives may be at risk.
Every lawyer swears an oath to obey the law and uphold the Constitution of the United States. As part of that, every lawyer becomes subject to the Rules of Professional Conduct as they are adopted in each jurisdiction. These rules are wide ranging and, more importantly, are the principal means of regulating the profession and ensuring not only that the legal system works, but also that the public retains its trust in the system and the profession. The various state Codes of Judicial Conduct and the Federal Code of Judicial Conduct are the analogue of the Rules of Professional Conduct. They regulate judicial conduct on and off the bench. In many respects, they are even more important than the rules that regulate lawyers.
Colorado Bar Ethics Committee Opinion 146
One of the most frequently heard complaints from lawyers, young and old, is that they work far too much. Large firms may expect lawyers to bill anywhere from 2,000 to 2,500 hours per year. Legal services lawyers and public defenders often carry enormous caseloads because of budgetary constraints. From the human perspective, these overwhelming workloads are untenable. They can destroy lawyers’ health, families, and peace of mind. Working long hours for long periods also can affect a lawyer’s ability to perform to a standard required under the Rules of Professional Conduct. It is this problem that is addressed in Colorado Bar Ethics Committee Opinion 146.
In November 2022, the Colorado Bar Ethics Committee issued the opinion titled, “A Lawyer’s Duty to Maintain an Appropriate Workload.” The opinion provides a well-reasoned account of how a number of the Rules of Professional Responsibility regulate workload:
Colorado’s Rules of Professional Conduct (the Rules or Colo. RPCs) impose the duties of competence, diligence, communication, and appropriate supervision. These duties affirmatively require lawyers to manage their workload to ensure proper client representation. Lawyers who manage or supervise lawyers – whether in a private law firm or other comparable setting – are also obligated to make reasonable efforts to ensure that subordinates’ workloads are suitably controlled…
ETHICS & MALPRACTICE RESEARCH TIP
New Articles from The Current Index of Legal Periodicals
This month, the LEMR suggests one new article in the hope that readers will devote some of their precious time (see the feature column in this issue of the LEMR on the importance of workload management). There is no issue more controversial to legal practice management today than the use of the new AI-based chatbots like those already released by OpenAI. Last month’s lead column discussed some of the ethical issues involved. A new student note in the Georgetown Journal of Legal Ethics explores in detail one aspect of the ethical challenges in using AI:
- Brooke K. Brimo, “How Should Legal Ethics Rules Apply When Artificial Intelligence Assists Pro Se Litigants?,” 35 Geo. J. Legal Ethics 549 (Fall 2022).
This is really worth a read, is and available for free online.
BLAST FROM THE PAST
From Julius Henry Cohen, The Law: Business or Profession? (1924), p. xiv, quoting the Canons of Ethics, National Association of Credit Men (1912):
It undermines the integrity of business for business men to support lawyers who indulge in unprofessional practices. The lawyer who will do wrong things for one business man injures all business men. He not only injures his profession, but he is a menace to the business community.
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
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