Reflections Of An Ethics Expert And A Lawyer Who Retains Him

In the past two decades the legal profession has seen the rise of a new area of focus both for practitioners and academics: the “ethics expert.” Increasingly, experienced lawyers, retired judges, and academic lawyers are devoting a large portion of their time to studying, advising about, and testifying in relation to the Model Rules of Professional Conduct (“Model Rules”). In addition, the ABA has established a Center for Professional Responsibility that ABA members may join, which publishes a series of publications—including the annotated edition of the Model Rules—and which also provides research services (at a charge) for lawyers dealing with professional responsibility problems. A revised third edition of the Kansas Bar Association’s Handbook on Legal Ethics was recently published, and similar volumes are either in print or in the works in most states. State and local bar associations and their ethics committees continue to publish many ethics advisory opinions and, of course, the ABA’s Committee on Ethics and Professional Responsibility (“ABA Committee”) is also active in publishing both formal and informal advisory opinions. Complaints against lawyers certainly have also maintained their pace. In Kansas, the annual total of disciplinary complaints filed against lawyers often approaches 1000. Our own sense, from reading current litigation documents in which ethics violations by lawyers are alleged, is that the Model Rules continue to appear frequently in a wide range of cases, most often, of course, in cases alleging legal malpractice. The fact is that lawyers now operate in a complex professional environment in which disciplinary rules proliferate both in number and complexity. Few lawyers have the time to master the rules to such a degree that they can claim expertise. Thus, when issues of professional responsibility arise in the course of their professional lives, they need to call upon an ethics expert.

The authors of this Article come from different backgrounds but have worked together over the past decade on a number of cases involving issues on fiduciary responsibility and professional ethics. Each Part below is written in the voice of one of the authors. The academic expert has been a faculty member at the University of Kansas for more than two decades, served as dean of two law schools, and has taught and written extensively about legal ethics and related matters. The practicing lawyer has been practicing law for more than three decades and has specialized in contingent fee litigation and, in the past decade, legal malpractice cases as plaintiffs’ counsel. He was primary counsel for the plaintiffs in Burrow v. Arce—a landmark case on legal malpractice and fee disgorgement.6 The authors have worked together on a number of cases over the past ten years as plaintiffs’ counsel and ethics expert. In addition, the authors have co-taught courses on legal malpractice and law practice management at the University of Kansas.

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