Professional Ethics and The Law

1 . Major Categories of Ethical Offenses

Ethical offenses for which practitioners have been most cited are (a sexual or dual relationships with clients (b ) indulging in sex with clients (c ) practicing without a license (d ) unprofessional , unethical or negligent practice (e ) sexual misconduct , and (e ) breaking confidentiality

Dual relationships involve relationships between lawyers that go beyond straightforward client lawyer relationships and involve an extra and more intimate involvement that is extraprofessional and can be sexual Relationships between clients and lawyers are often fiduciary where the lawyer occupies a position of

trust and respect , and is thus capable of influencing the client . Sexual relationships can involve unfair exploitation of the lawyer 's fiduciary role the possibility of significant harm to client interests and the unlikely possibility of the client being able to give informed consent lead to the prohibition of sexual or dual relationships vide ABA rule 1 .8 j 1 . It needs to nevertheless be recognized that spousal relationships or previously existing sexual relationships do not fall under the purview of this rule . Sexual activity with a client also falls under this rule

Professional ethics and rules bar persons from practicing law without appropriate licenses . Practicing licenses are generally granted by states . The Montana Code (37-61-201 ) for example , states as follows

Any person who shall hold himself out or advertise as an attorney or counselor at law or who shall appear in any court of record or before a judicial body , referee , commissioner , or other officer appointed to determine any question of law or fact by a court or who shall engage in the business and duties and perform such acts , matters , and things as are usually done or performed by an attorney at law in the practice of his profession for the purposes of parts 1 through 3 of this chapter shall be deemed practicing law

Persons found practicing in Montana (in any court except a justice 's court or a city court , without receiving licenses , as attorneys and counselors , shall accordingly be considered guilty of contempt of court Appropriate licensing rules serve to ensure professional quality of service , delineation of scope of practice , and enforcement of professional conduct . Licensing has long been a state issue and courts have repeatedly recognized state power to regulate legal practice mostly by laying down minimum academic requirements . While basic licensing standards are mostly uniform , states can expand or narrow the standard by making academic requirements more or less rigid

Professional conduct of lawyers is , in the main , governed by rules for professional self conduct , and a standard of care for providing legal services . While these rules were never meant to impose civil liabilities on lawyers for their breach , they have been used to establish a reference standard for lawyers for malpractice cases . Legal relief , for malpractice , has been available for more than 200 years . While most malpractice actions arise from allegations of negligence , plaintiffs need to establish (a ) a duty owed by the lawyer (b ) breach of duty (c damage to the...