Overview of Alabama’s Rules of Professional Conduct
In 1991, the Alabama Rules of Professional Conduct replaced the Alabama Code of Professional Responsibility as the ethical standards that Alabama lawyers are required to follow. The newly adopted Alabama Rules contained standards from the Model Rules of Professional Conduct as adopted by the American Bar Association in 1983 and other guidelines from the Alabama State Bar. The current Alabama Rules contain significant provisions obligating attorneys to engage in ethical conduct and assist in upholding the reputation of the profession . Compliance with these mandatory Rules is essential to the regulation of the legal profession in Alabama and the preservation of public confidence in our State’s system of justice. The Rules are applicable to all lawyers practicing law in Alabama regardless of profession: whether employed in the public or private sector, and regardless of for-profit or not-for-profit entities.
Underlying Principles of the Alabama Rules
The Alabama Rules of Professional Conduct are based on a number of fundamental principles that aim to uphold the integrity, fairness, and public service nature of the legal profession. These principles serve as guiding tenets for attorneys practicing law in Alabama and are crucial for maintaining professional standards and public trust. The rules emphasize the unyielding commitment of attorneys to maintain high ethical standards, to be fair in their dealings with clients, opponents, and the judicial system, and to serve the public interest whenever possible. These fundamental principles underscore the critically important role that lawyers play in our legal system and the obligation they owe to their clients and the public.
In addition, these rules help to ensure that clients can have confidence in the legal process and receive fair treatment from their lawyers and the legal system. For example, clients have a right to expect that their attorney will act with competency, diligence, and loyalty, and will keep their best interests at heart. The integrity of the legal profession is upheld by ensuring that attorneys act with honesty and do not misrepresent themselves or their clients in any way. Finally, the principle of fair and equal access to justice is fundamental to the client-attorney relationship, and all clients are entitled to understanding and compassionate representation from their attorneys.
These fundamental principles are essential to the practice of law in Alabama, reflecting the core values that lawyers must uphold in order to maintain the public’s trust and confidence in the legal system. By adhering to the Alabama Rules of Professional Conduct, attorneys can best fulfill their obligations to their clients and to the public at large.
Duties to Clients
The Alabama Rules of Professional Conduct, like all positive rules of law, construe from the legal preamble some goodly portion of eternal human discord. The most difficult human relationships are those which carry with them power disparities. The rules are seemingly strong on resulting power imbalances. They really focus on the "problems" with the potential for the resulting imbalance of people dealing with lawyers.
These rules are not satisfied with the simple concepts of fairness, honesty, trust and candor. While the Rules strive for those goals they are more likely to talk about the technicalities of how lawyers must deal with their clients based on presumed concentrations of power. There are other things in the rules which are discussed in other places in this work.
In order to give you some sense of the Rules I am quoting them from their own context, from the client-lawyer relationship section as follows: Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, subject to the provisions of Paragraph (c), may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to settle a matter. A lawyer shall promptly inform a client of any decision or circumstance that requires the informed consent of the client.
(b) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall act competently to safeguard information relating to the representation of a client.
(c) A lawyer shall not be prohibited from agreeing with a client to limit the scope of the representation if the limitation will not compromising the other clients’ rights under the Alabama Rules of Professional Conduct, will not violate the Rules, and the client gives conformed written consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, unless the lawyer reasonably believes that it is not criminal or fraudulent or the client seeks advice only on the consequences of a proposed course of conduct. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 1.3. Diligence (a) A lawyer shall act with reasonable diligence and promptness in representing a client.
(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.
Comment 1. It is professional misconduct for a lawyer to: (a) handle a legal matter without preparation adequate to assume competence… . 1.4. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and reasonably consult with the client about the means by which the client’s objectives are to be accomplished. A lawyer shall promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Comment Clients have a right to know about their lawyer’s progress and to know when matters are taken out of the client’s hands…
While these rules will apply to all relationships with a client you are representing, they can also be conceptualized on other kinds of dealings. You will learn more about technology in future entries, and you will have to grapple with interpretation of the rules and its application into your context.
It will not be an unusual thing for a client to deal with their own client in the same kinds of ways that your client expects you to deal with them.
Duties to the System of Justice
The Alabama Rules of Professional Conduct further describe a lawyer’s duties toward the legal system. For example, a lawyer should not bring or defend a proceeding, or assert or controvert an issue, unless there is a basis for doing so that is not frivolous. If a lawyer knowingly makes a false statement of fact or law or fails to correct a false statement of material fact or law by another person, the lawyer may violate the rules. Under Rule 11 of the Federal Rules of Civil Procedure, for example, a lawyer can be sanctioned for filing pleadings for improper purposes (such as to harass) or for having frivolous legal contentions (for example, filing without an adequate basis for doing so). The rule does not prohibit a lawyer from accepting a case that is not frivolous, even if the lawyer believes the legal contentions in the case are not likely to be successful.
A lawyer must make reasonable efforts to expedite litigation, and must not further obstruct a opposing party that is engaged in future litigation. A lawyer must not communicate with a public tribunal if there is a reasonable prospect of being a witness in the matter. See generally Rule 3.3.
Various comment sections to the above rules discuss the responsibilities of a lawyer to a court. For example, lawyers must disclose controlling legal authority in a jurisdiction that is directly adverse to the position of a client, regardless of whether the controlling authority in the other jurisdiction is simply wrongly decided. Lawyers have a responsibility to comply with court discovery schedules, and to make reasonable efforts to expedite judicial proceedings. A lawyer who possesses knowledge of a criminal or fraudulent act to have been perpetrated against the court is ethically bound to disclose the information to the court, even if the lawyer’s duty of confidentiality would otherwise prohibit the disclosure.
Criminal charges or convictions against a lawyer present other issues not discussed in this post.
Duties Obligated to the Public and Third Parties
Lawyers are citizens with obligations to the public, a status that gives them both rights and responsibilities. From a lawyer’s selection of clients to the conduct of a garage sale, the Alabama Rules of Professional Conduct address numerous situations implicating a lawyer’s obligations to the public and other third persons.
For example, Rule 1.2(d) requires a lawyer to decline representation if the lawyer knows that the client seeks assistance in perpetrating a crime or fraud, permitting the lawyer to advise the client as to the legal consequences of a proposed course of action. Lawyers are further prohibited from using "methods of obtaining evidence that violate the legal rights of a third person." Rule 4.4(a). Although this Rule refers to evidence, it is interpreted broadly to include all methods—i.e., your methods cannot violate the rights of a third person. Rule 1.6 addresses confidentiality, noting that a lawyer may reveal information relating to the representation of a client if the client gives informed consent, or to prevent death or serious bodily injury. Rule 3.6 anticipates the possibility that a lawyer may be precluded from making extrajudicial statements to the press, but rather than address when such preclusion would be appropriate, it notes only that such preclusion is subject to constitutional restrictions.
Lawyers assisting public interest, charitable, religious , civic, educational or nonprofit organizations have special obligations to ensure that their nonlegal work does not compromise the lawyer’s independent professional judgment, and may not "participate in the decision-making process with respect to the organization’s policies or directives that have a material effect on such matters as allocation of resources or board composition." Rules 6.13-20. The Rules recognize that lawyers practice law for many reasons and often answer calls to serve their communities, including public and private service through adjudicative, legislative, and administrative processes. Rule 6.1.
Lawyers’ public responsibilities also extend to their dealings with third parties. As the Comments to Rule 1.2 note, a lawyer often agrees to represent a client in the face of community opposition, and persons not involved in a matter have an interest in its outcome. The lawyer and client are thus entitled "to defer the enjoyment of the benefits resulting from the representation until the matter has been resolved." Accordingly, lawyers must not go public with information that could prejudice the case while the representation is pending, but they may do so after the matter concludes. Even more fundamentally, lawyers must "zealously protect the rights of their clients" while treating third parties and the general public fairly and honestly. Rule 8.4(c).
Discipline and Enforcement
The enforcement of the Alabama Rules of Professional Conduct is the responsibility of the Alabama State Bar, and investigations into alleged violations are conducted by the Office of General Counsel. It’s important to remember that the rules are enforced through a variety of mechanisms—these include both informal and formal processes.
The "threat" of enforcement is a constant companion to every member of the Alabama bar, regardless if the conduct at issue is that which is specifically prohibited under the rules. The State Bar has a large number of attorneys who serve on its many committees to investigate complaints or other conduct that it deems can undermine the integrity of the profession.
Enforcement is rooted in the statutory authority of the Alabama State Bar to establish a prohibition on certain conduct through its rules. A violation of the Rules or Alabama Criminal Code may lead to the initiation of an action for discipline or civil sanctions. Discipline can include suspension for a designated time, disbarment, or disbarment with a right to apply for readmission after a designated period of time. Disbarment is the most severe (and often least utilized) disciplinary sanction against an attorney.
Common types of violations that lead to discipline include criminal convictions (particularly felonies), the neglect of a client’s affairs, conflict of interests with a client, failure to adhere to a court order, handling attorney funds inappropriately, using misleading titles, dishonesty, and loss of track of client funds.
Criminal convictions are generally treated as serious violations, with the rules requiring that any felony charge be reported to the Alabama State Bar within 30 days. In adjudicating the disciplinary proceedings, the underlying criminal offense is rarely litigated as it is presumed that the conviction is valid.
For lawyer regulation, the findings of fact are either the result of confession, stipulation, trial court judgment, or a plea of nolo contendere. Furthermore, it is possible for a lawyer to escape discipline for a conviction if they are found to have exercised moral fitness and addressed the underlying issues. A full recitation of the law and interpretation regarding criminal convictions is outside the scope of this article.
Disciplinary measures are based on the nature and severity of the offense, as well as five key factors: the mitigating circumstances of the respondent; the respondent’s prior disciplinary record, including sanction imposed for the misconduct at issue; the sanction imposed upon the respondent in any other pending disciplinary proceeding; the sanction or sanctions imposed upon the respondent by other jurisdictions for the same or any other misconduct; and the risk of future harm to the public should the license be permitted to practice.
If formal disciplinary proceedings are suggested, the Disciplinary Commission is able to recommend the imposition of sanctions to be administered by the Board of Disciplinary Appeals. In this forum, the subject-matter jurisdiction of the Disciplinary Commission over actions of attorneys stems from the Rules itself. When an attorney is being represented by counsel before the Disciplinary Commission and it is apparent that a voluntary suspension from practice in Alabama is the most appropriate sanction, Board of Disciplinary Appeals may approve a proposed consent order even if it does not provide for leave to apply for reinstatement.
In essence, this means that once the attorney appropriately cures the underlying conduct, they may simply return to practice in Alabama, regardless of the severity of the violation.
There is no crime of request. Some lawyers think they can engage in borderline activities that they know or should know will raise a red flag, but that may be difficult to prove. They then wait to see if the matter comes to the attention of the powers that be, and if it doesn’t, they go about their business without submitting a request for disciplinary advice. Instead of taking the high road and following the law, they engage in a game of playing around the edges of what is right.
Amendments and Updates
For the past several years the Alabama Rules of Professional Conduct have been modified to move away from the model rules. That is no surprise as we are not the only state that has made modifications to the ABA model rules. The following list is not intended to be all inclusive and will need to be updated from time to time.
Rule 1.0 (f) The definition of "firm" was amended to clarify that a lawyer’s "firm" includes a newly-formed law firm in which the lawyer is employed but that is not yet a professional association or professional limited liability company.
Rule 1.0 (n) The definition of "screened" was amended to describe the process by which a lawyer isolates himself or herself from a case—an important process for avoiding imputed conflicts.
Rule 1.8(h) This rule was amended to parse out the language on business transaction conflicts and identify it as (very similar language to the original rule) in Rule 1.8(a) and add new language to the former Rule 1.8(i) that governs gifts from clients.
Rule 1.16 relating to declining or terminating representation has been revised to clarify that the lawyer must pull back if representing two or more clients in the same or substantially the same matter would result in nonconsensual violation of the rules.
Rule 2.4(c) was added to clarify what is required when a lawyer is serving as an arbitrator , mediator or other third party neutral.
Rule 3.4(g) was added to clarify a lawyer’s obligation to refrain from obstructing another party’s access to evidence.
Rule 4.4(b) was added to give notice to lawyers that they should not use evidence they accidentally receive from opposing counsel in any way that is prejudicial.
Rule 6.5 was added to give notice to lawyers who do not routinely practice law and who provide short-term legal services to people of limited means at a legal services organization.