Topic: Professionals & Institutions
The Misuse of Professional Ethics
The general public pays no attention to the hundreds of legal ethics opinions handed down every year by courts and bar association panels. This is unfortunate but not surprising; after all, most lawyers pay no attention to them either. Nevertheless, the introduction of ethics rules and codes for lawyers at the beginning of the 20th century was intended more for the public’s benefit than for lawyer. They were designed to let the public know what duties attorneys had to fulfill towards their client, and to advance the goal of permitting every citizen to have access to competent legal representation. After all, lawyers are necessary to give citizens the access to and protection of our laws; they are just too numerous and complicated for citizens to use and follow without assistance.
It is therefore an alarming trend when the ethics rules governing lawyers become weapons in turf protection wars to the detriment of the potential clients they are supposed to protect. This is what has occurred in Florida, and look out: it could well be the first shot of a protracted battle between bar associations to protect what too many lawyers hold most sacred: their fees.
The rules against the unauthorized practice of law that exist in all jurisdictions aim first and foremost to protect Americans against unqualified, incompetent and untrained individuals posing as lawyers; in fact, that is the only goal explicitly stated in the rules themselves. But there is an unstated more self-serving goal, and that is the goal of preventing lawyers from other jurisdictions from horning in on business without paying bar dues and jumping through some time consuming hoops, like passing the local bar exams. The rules have the effect of making out-of-state lawyers find an in-state lawyer to help them out. Result: more business for the home team.
That’s all right. After all, bar associations are trade associations too, and looking out for the business opportunities of members is a legitimate activity. A recent ethics opinion out of Florida, however, takes this activity too far, threatening the welfare and access to representation of the rest of us.
An opinion with the provocative name of Florida Bar Staff Opinion 24894 states that lawyers outside of Florida are violating Florida ethics rules by advising a client about Florida law, even when the client isn’t in Florida! It gets worse: the opinion goes on to say that it is an ethical violation (“assisting another in the unauthorized practice of law”) for a Florida lawyer to provide any advice regarding the laws of the state to the non-Florida attorney.
Florida estate attorney Jeffrey Baskies has done a thorough analysis of the opinion’s potential impact in the Lawyer’s Weekly (www.lawyersweekly.com), and the picture isn’t pretty. The traditional rule in most states has been that an attorney could advise a client about another state’s laws, because in our mobile society, that is the only policy that makes sense. Let’s look at an alternate future US where every state has adopted the Florida approach. A New Yorker with real estate holdings in several states, including Florida, consults his estate planning lawyer seeking advice regarding the state with the most accommodating tax laws? How can the attorney answer the question without advising the client regarding the various laws? And Opinion 24894’s solution won’t work, because if the lawyer sends his client to the Florida lawyer about the Florida property and the Arizona lawyer about the Arizona property, and so on around the country, none of them will be able to give the client the comparative analysis he needs.
For the moment, of course, that isn’t what will happen. Right now, the client has only one choice: hire a Florida lawyer, who can give advice about the other states’ laws because only his turf-guarding bar association has blocked legal advice from out-of-state. This is wonderful for Florida lawyers, until the other state bars fight back with restrictive ethics rules of their own.
The American Bar Association has been trying to head off this looming war by proposing a standard reciprocal rule in all states, so far to no avail. The ABA would like to make it easier for lawyers to provide advice and counsel outside their own jurisdictions, making it possible for a client to maintain a relationship with a trusted attorney even after relocating. Such a system would benefit clients, and benefiting clients is what the professional ethics rules governing lawyers are all about.
The public, as I began by saying, takes no notice of this issue, and it shouldn’t have to. If lawyers truly follow the ethical principles underlying their profession, they will arrive at the correct decision, which is to make it easier, not more difficult, for ordinary people to get the legal advice they need. Florida Bar Staff Opinion 24894 is the product of misplaced priorities, and defeats the real purpose of the rule it supposedly enforces.