As always, before reading my post, please review my disclaimer by following the link on the top of the page or clicking on this link. As always, the legal rules outlined here are applicable only to the Commonwealth of Virginia.
Introduction
Despite the legal profession's unfortunate and, in my opinion at least, undeserved reputation to the contrary, you will often be hard-pressed to find attorneys of poor moral character. A major reason for this is that the legal profession has some of the most extensive ethical rules of any profession in the world. In the United States, nearly every law school requires passage of a Professional Responsibility class prior to graduation, and every state except for Maryland, Washington, Wisconsin, Connecticut and New Jersey requires its attorneys to pass the Multistate Professional Responsibility Exam (MPRE) - and Connecticut and New Jersey only waive the requirement if the attorney received a minimum grade in his Professional Responsibility class.
Beyond those requirements, however, come the ethical rules of the State Bar itself (called Rules of Professional Conduct in many states). These rules are extremely strict, and can result in disbarment for an attorney - and an accompanying loss of the attorney's entire career - for behavior that would not only not be criminal, but isn't even behavior for which the attorney could be sued.
Now, you might be wondering "Ok, great, lawyers aren't the scum of the earth, why does a non-lawyer like me need to know anything about legal ethics?" Well, if you are reading this blog, I presume there is a possibility you will consider hiring a lawyer at some point, or being involved in a case in which a lawyer might be involved. There are few things more frustrating to clients than when they ask their lawyer to do something, and the lawyer says no. There are even fewer things more frustrating to someone when they try to communicate with an opposing attorney and get flat-out ignored.
The purpose of this blog post is to give you a basic understanding of some of the more important ethics rules in Virginia when it comes to working on your behalf so that you have reasonable expectations of attorneys, and have a better understanding of what they will and won't do. First and foremost, though, understand your attorney's first duty isn't to you - it is to the justice system, and if your attorney has to choose between doing right by you and doing right by the legal system itself, the attorney will generally choose the latter.
Lying
Perhaps the most common ethical violations that attorneys are asked to engage in by their clients involves some form of lying. Most clients seem to not recognize that lawyers cannot lie, at all, period, end of discussion. If you are trying to find out where someone works in order to do a garnishment, your lawyer cannot call the person, pretend to be a recruiter, and ask for the person's current job information. Your lawyer can't tell an opposing party that a settlement offer is a "final offer" if he* knows at the time you'd be willing to go further. Your lawyer can't give an opposing attorney an excuse for why you haven't completed discovery yet when he knows the excuse isn't true. If you ask your lawyer to lie for you, he's going to say no.
The prohibition on lying, however, goes further than you might think. An attorney is also not permitted to make statements or engage in actions that are intentionally misleading. We've all seen those movies - an attorney is questioning an adverse witness on the stand, trying to get them to admit they confessed to their wrongdoing, and then suddenly the attorney holds up a cassette tape (obviously this is from a bygone era) and without saying it, strongly implies that the statement was recorded. The witness breaks down and confesses, and after the trial, someone asks the attorney "where did you get that tape?" and he says "oh, I bought it from the drug store five minutes before trial, it's blank!" Everyone has a good laugh, and the movie ends. Well guess what, in the real world, that attorney's going before the state bar and could have his license to practice law suspended or revoked. Don't expect your lawyer to engage in those kinds of theatrics.
Further, a lawyer is not permitted to let you lie to the court. The rules create an odd panoply of rules about this, but the basics are that if you are on the stand, and you are committing perjury, and your lawyer knows it, he cannot allow it to continue. Generally, first he will ask for a recess and will talk to you to make sure you correct yourself. If you still insist on lying on the stand, he may try again. If you continue, the lawyer likely will ask to withdraw as your attorney, and may have an off-the-record discussion with the judge explaining why.
Finally, if your lawyer is aware of a controlling legal opinion ("controlling" being key, so it must be from a higher court, in the same state [or the U.S. Supreme Court], it must not have been overturned or distinguished later, it must be directly on point, and the portion at issue must be part of the ruling, not dicta) that is adverse to your case, and the other attorney does not raise it, your attorney must bring it to the judge's attention. Further, if you are in an ex parte proceeding (a proceeding where the other side is not present), your attorney must present all facts to the judge, even adverse facts.
The rules on dishonesty by an attorney are where clients get tripped up most often in my experience, so understanding these rules is key to fostering the best relationship you can with your attorney.
Judicial Harassment
Another issue I see come up fairly often is when clients want their attorney to engage in what I refer to as judicial harassment of the other side to bully them into a settlement. For example, telling the other side "we will press charges for assault if you do not agree to this property settlement" in a divorce. Another is to tell an opposing attorney that we will press disciplinary charges against him for some perceived wrong if he doesn't advise his client to settle. However, the rules on this are clear - an attorney may not present, or even threaten to present, criminal or disciplinary charges just to gain an advantage in a civil matter.
Now, there are exceptions to this. First of all, your attorney can advise you of what criminal charges you have the right to press, and if you decide to take that action on your own, regardless of the reason, that is your right - but your attorney will not be involved. Second, an attorney can threaten criminal charges against someone when that threat is not designed to gain an advantage in a civil case, but rather to prevent a crime from happening in the first place. The most common situation in which I've seen this in the family law context is when a non-custodial parent with visitation refuses to return the child to the custodial parent. Then your attorney probably can say "we will have you charged with kidnapping if you do not return him." In that case, you are seeking to prevent the commission of a crime, not merely gain an upper-hand in litigation.
Communication with Opposing Attorney
The last topic I want to cover today (in order to keep this post of a reasonable length - if I feel a need I might cover more ethics-related topics in the future) is communication between an attorney and the other party. There are a lot of rules here, and it is easy to come to think of an opposing attorney as "sleazy" just because he is following those rules and you don't know it.
The first thing to understand is that the rules are very different depending on whether or not you yourself have an attorney. If you have an attorney yourself and that attorney has not given the other attorney permission to communicate with you, the other attorney cannot talk to you about the case, or anything remotely related to the case. If you try to engage the other attorney in a conversation that even resembles being about the case and you have an attorney, the other attorney is acting absolutely properly by turning his back to you and refusing to say anything. There is a recent ruling in the Virginia courts that the rule does not require the attorney to be rude and the attorney can give a response of "I cannot talk to you about this," but that is a very new ruling that has not been fleshed out yet, so most attorneys will still take the safe approach and flat-out ignore you.
If you are not represented by an attorney, you can communicate with the other side's attorney, but the rules are still restricted. The opposing attorney can explain his side's position, explain the legal process, and make settlement offers. He cannot, however, suggest you accept the offer, even if he thinks it's very generous. This is because an opposing attorney even in this context cannot give you any advice whatsoever, except the advice to hire an attorney.
A Side Note About Police
There is an important side note I want to cover very briefly - specifically regarding police. You've probably heard before that you should never talk to the police without a lawyer. I would like to emphasize the importance of that rule of thumb. While all the ethical rules I outline here apply fully to prosecutors, they do not apply at all to police. Police officers absolutely can lie to you in order to try to elicit a confession. They can not only hold up the cassette tape I talked about earlier, they can flat-out tell you it has a recording of you confessing on it. Moreover, police officers have absolutely no authority to "cut you a deal," no matter how strenuously they might claim otherwise (see my previous sentences about police officers' right to lie to you) - only a prosecutor can do that.
Many people think that police are held to similar ethical rules as attorneys, and this simply isn't the case. If you are in a police situation, get an attorney, and better yet, insist on speaking only to a prosecutor.
Conclusion
Most people when they hire an attorney incorrectly assume that the attorney's first duty is to them. An attorney's first duty is to the legal system itself, and a good attorney will not violate his ethical commitments just because you ask him to. If you are concerned that an attorney may be acting unethically, I would encourage you to contact the state bar. In Virginia, the information you need for doing that can be found here. If you are considering changing attorneys, for ethical or any other reasons, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour. Please be aware, however, that if you are switching attorneys for ethical reasons, but do not want to report that attorney to the bar, other attorneys are actually required to report unethical behavior by another attorney to the state bar - so if you discuss the unethical behavior with your potential new attorney, a report might be made whether you want one to be or not.
* - Male pronouns used in this post purely for convenience.
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