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What do attorneys do?
Areas of Practice – There are dozens of areas of law practice that are largely, if not completely, separate and unrelated. Very few attorneys are experts in more than a couple of legal areas. Below are some common areas of legal practice: Criminal Law, Civil Action (Tort Lawyers), Insurance Litigation, Secured Transactions, Administrative law, Contract law, Consumer Law, International shipping and trade, Immigration law, Intellectual Property law, Antitrust law, Securities law, Banking and Finance Law, Corporate Governance, Environmental law, Land and Property, Labor and Employment, Social Security & Disability, Elder Law, Estate Planning, Workers Compensation, Family law, Human Rights, Election law, Sports law, etc.
Duties to Clients – Attorneys are counselors, advocates, and public servants. More specifically, they are fiduciaries and advocates for their clients interests and officers of the court. The attorneys oath of office subjects the attorney to a professional code of ethics that governs all of her professional practice activities. The attorney is generally trained to navigate the legal system. This may involve working within the courtroom. Below are some universal truths about lawyers and those who practice in the courtroom.
- Fiduciaries – Attorneys have a duty of trust, confidentiality, and loyalty to their client. This means that, absent certain exceptions, an attorney cannot disclose confidences related to her by a client. This relationship requires a high degree of professional and ethical conduct. Lawyers are subject to sanction (or even disbarment) for failure to live up to these high ethical standards.
- Court Representation – Individuals may represent themselves or hire a licensed attorney to counsel and represent them before the court. Attorneys must be licensed by and admitted to a courts bar to represent clients before that body.
- Officers of the Court – Attorneys are officers of the court and are required to seek justice and to try cases on the merits only. While attorneys represent their clients, they have ethical obligations to the court to promote and seek justice. The system is not designed to be a battle of wits, but rather a presentation of evidence for a just decision.
Not all attorneys practice law in a courtroom; however, these standards apply equally to attorneys who provide legal services outside of the courtroom.
Discussion: Do you think that the majority of the public is aware of all of the specialties that exist in legal practice? Why do you think that there are so many specialty areas of legal practice? Do all of these specialties call into question the professional competence of general practitioners? Do you find any conflict of interest for attorneys who are expected to be officers of the court as well as zealous advocates for their clients?
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- The general public seems to be largely unaware of the many areas of specialty law practice. In fact, most people do not fully understand the role that attorneys play in the legal system. This lack of understanding begins to subside as individuals become increasingly familiar with various industries that require specific types of legal work. In todays society, the general practitioner attorney is largely ill equipped to handle the many complicated legal matters that individual and business clients face. As such, the practice of law is becoming increasingly specialized. For trial attorneys representing clients, it is a balance between maintaining ones fiduciary and ethical obligations to the client while balancing ones role as an officer of the court. The ultimate goal is to seek justice. Many attorneys see their role in defendant clients as maintaining due process.
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Practice Question: Grace has her own legal practice where represents corporations in contract law matters. She primarily works with investment banks to develop and memorialize corporate funding arrangements. One of her biggest clients, ABC, Inc., approaches her about suing a competitor, 123, Inc., in state court for anti-competitive behavior. Grace has very little experience in this area, but she decides to undertake some due diligence in order to adequately advise the client on the situation. From her investigation, she learns that there are really no grounds for a lawsuit against 123. More troubling, however, is Grace learns that ABC has been involved in an on-going scheme that could be considered fraudulent to its shareholders. Grace brings this matter to the attention of the CEO of ABC. The CEO tells her to ignore the shareholder matters and, if she wants to continue representing ABC in other matters, to initiate litigation against 123 immediately. What are the duties and ethical considerations that constrain Grace in this situation?
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- Grace is limited by the states rules of civil procedure, which prohibit filing frivolous claims. (Note: Rule 11(b) of the Federal Rules of Civil Procedure is a relevant federal rule). Filing the suit on behalf of ABC would also violate her ethical duties to pursue justice. As for the illegal shareholder activity, she is not obligated to disclose past criminal conduct of a client that she learns in the course of representation. Nonetheless, she should cease from representing the client on matters related to this criminal activity. If, however, she believes that the conduct will be on-going and could result in harm to individuals (such as physical harm), she has may disclose that conduct if the client refuses to stop.
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Holst, Kimberly Y. W., The Roles of Attorneys in Mediation (September 22, 2011). Bahcesehir University, Vol. 7, Nos. 83-84, pp. 242-251, 2011. Available at SSRN: https://ssrn.com/abstract=1932387
Rand, Spencer, A Poverty of Representation: The Attorney’s Role to Advocate for the Powerless. Texas Wesleyan Law Review, Vol. 13, p. 545, 2007; Temple University Legal Studies Research Paper No. 2007-37. Available at SSRN: https://ssrn.com/abstract=1033527
Kohn, Nina A., Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers (October 1, 2017). Nina A. Kohn, Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers, 53 Court Review 64 (2017).. Available at SSRN: https://ssrn.com/abstract=3276289
Coffee, John C., The Attorney as Gatekeeper: An Agenda for the Sec (April 2003). Columbia Law and Economic Working Paper No. 221. Available at SSRN: https://ssrn.com/abstract=395181 or http://dx.doi.org/10.2139/ssrn.395181
Hammond, Celeste M., The Evolving Role for Transactional Attorneys Responding to Client Needs in Adapting to Climate Change (January 7, 2014). John Marshall Law Review, Vol. 47, No. 543, 2013. Available at SSRN: https://ssrn.com/abstract=2535085 or http://dx.doi.org/10.2139/ssrn.2535085
Flowers, Roberta Kemp, Role of the Defense Attorney: Not Just an Advocate (2010). Ohio State Journal of Criminal Law, Vol. 7, p. 647, 2010. Available at SSRN: https://ssrn.com/abstract=2039479
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