Why the District of Nebraska rejected the ABA Model Rules of Professional Conduct and the Code adopted by the Nebraska Supreme Court.

As I indicated yesterday, our local rules state the following:

(b) Ethical Standards. The standards of conduct governing the members of this court’s bar follow.
(1) Rules. Attorneys must comply with this court’s rules.
(2) Conduct. Attorneys must refrain from conduct unbecoming of a member of the bar.
(A) The court declines to adopt other codes of professional responsibility or ethics.
(B) However, and in addition to any other material, the court may consult other codes of professional responsibility or ethics to determine whether a lawyer has engaged in conduct
unbecoming of a member of the bar.

NeGenR 1.7(b) (emphasis added).

Why would we write the rule this way? Briefly, and understanding that this is a blog post and not a law review article, here is the answer.

Let’s remember something. While it is true that the state supreme courts have, almost by accident, taken the lead in developing codes of conduct for lawyers, often with the help of models prepared by the American Bar Association, the federal courts possess independent power to regulate the practice of law before them.  A case from the Eighth Circuit that landed in the Supreme Court makes that point clear. See, e.g., In Re Syder, 472 U.S. 634 (1985) (holding that a lawyer’s criticism of the administration of the Criminal Justice Act or of inequities in assignments under the Act does not constitute cause for suspension; as officers of the court, members of the bar may appropriately express criticism on such matters. Even assuming that petitioner’s October letter exhibited an unlawyerlike rudeness, a single incident of rudeness or lack of professional courtesy—in the context here—does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is not presently fit to practice law in the federal courts; nor does it rise to the level of “conduct unbecoming a member of the bar” warranting suspension from practice).

Importantly, the Supreme Court made clear in Snyder that the source of the law for discipline in the federal courts was a matter of federal law and not the ethical code adopted by the attorney’s home state:

The Court of Appeals stated that the standard of professional conduct expected of an attorney is defined by the ethical code adopted by the licensing authority of an attorney’s home state, 734 F.2d, at 336, n. 4, and cited the North Dakota Code of Professional Responsibility as the controlling expression of the conduct expected of petitioner. The state code of professional responsibility does not by its own terms apply to sanctions in the federal courts. Federal courts admit and suspend attorneys as an exercise of their inherent power; the standards imposed are a matter of federal law.

Id. at 645 & n. 6 (emphasis added) (citation omitted).

The Court added, however, that state codes were not irrelevant: “The Court of Appeals was entitled, however, to charge petitioner with the knowledge of and the duty to conform to the state code of professional responsibility. The uniform first step for admission to any federal court is admission to a state court.” Id. The Snyder opinion also recognized the importance of the model rules promulgated by the American Bar Association. Id. at 646 & n. 7.

The duality expressed in Snyder–that the discipline of lawyers in federal court is a matter of federal law but federal courts may look to ethical codes in defining a lawyer’s obligation–seemed to our court as a standard that we should make explicit. We wanted lawyers who come to the Nebraska federal court to know and understand precisely what “law” will be applied when a lawyer faces the possibility of having his or her ticket lifted in federal court.

Three quick observations are in order:

  1. The ethical standard expressed in our local rule is an obvious one, although one that may be unfamiliar to many federal practitioners.  It comes from Federal Rule of Appellate Procedure 46 (b) (“A member of the court’s bar is subject to suspension or disbarment by the court if the member is . . . is guilty of conduct unbecoming a member of the court’s bar.”)  The phrase “conduct unbecoming a member of the court’s bar” means “conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct.” Snyder, 472 U.S. at 645.
  2. The problem of giving over the power to define ethical or unethical conduct in the federal courts to the states and the code of ethics adopted by the states can be real and vexing. Consider for example an ethics opinion given in NEBRASKA ETHICS ADVISORY OPINION FOR LAWYERS, No. 12-06.  (The eight members of the Lawyers’ Advisory Committee are attorneys appointed by the Nebraska Supreme Court. Each Supreme Court Judicial District is represented on the Committee and the chairperson and vice chairperson are selected at large.) That opinion dealt with a question of whether a lawyer had a duty to disclose, under a Nebraska ethics rule pertaining to “candor to the tribunal,” the fact that the lawyer’s bankruptcy client had received an undisclosed inheritance. Concluding that the lawyer had no such duty because the bankruptcy proceeding had been closed before the lawyer became aware of the inheritance, the opinion proceeded without much if any recognition that the question before the authors primarily presented a matter of practice before the federal courts. Intending no criticism of the substance of the opinion, the problem of a state entity applying a state generated rule of decision that is procedural rather than substantive in nature to a federal forum, without recognizing the federal forum’s primary regulatory authority when it comes to matters of ethics, has the potential for all sorts of unintended consequences, not the least of which is that the federal court might come to a divergent conclusion.
  3. Our rule is not ideal. It would be far better to have one national ethics code for lawyers who practice in federal court. No such rule exists, and it is unlikely that one will be promulgated in the near future. For now, at least, our approach seems to be an acceptable approach to a complex problem.  Our rule is at least a recognition of the realpolitik:

Although federal courts are unlikely to create comprehensive rules of conduct, they may yet develop a handful of rules. Even without a few focused rules, we recognize that the grip of the states has loosened. They are one important actor in the law governing lawyers. They are not the only actor, however. In federal litigation the federal courts inevitably will the dominant actor both in determining the norms, the remedy and the role that federal courts are willing to assume in the mosaic of attorney regulation.

Judith A. McMorrow, The (F)Utility of Rules: Regulating Attorney Conduct in Federal Court Practice, BOSTON COLLEGE LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES, No. 44 at p. 60 (2004).

So there you have the answer. In short, we have rejected codes of ethics generated by the states or the ABA as providing the exclusive rules of decision. We have done so because the discipline of lawyers in federal courts is a federal matter derived from the federal common law and that federal common law consists of a number of sources that are not limited to ethics codes, although those codes are by no means irrelevant.  Our rule is an honest expression of that reality.

Tomorrow, I will write about what happens when clients complain to Nebraska ethics investigators about conduct occurring in a federal case. That issue poses problems that you might not otherwise think about. Indeed, more recently, those complaints have become a matter of significant concern.

RGK

2 responses

  1. I observed extremely harsh behavior directed at lawyers during oral arguments before the 8th Circuit back when I did CJA work. Once in St. Louis a Judge humiliated a smart, well prepared young lawyer for no reason (probably sport), I immediately called a partner at his firm. I explained that his Associate had been delivering an excellent argument in the complicated case when the Judge unfairly went after him. I suggested firm get the audio of the argument in order to put in context the Judge’s absurd command that the young lawyer was to call his firm that afternoon and tell them to never send him back to federal court.
    As the Supreme Court stated in Syder ” All persons involved in the judicial process—judges, litigants, witnesses, and court officers—owe a duty of courtesy to all other participants.
    At the district court level in Nebraska, lawyers are treated with respect. I hope things have changed at the Circuit level.

  2. Vince,

    Thanks for your comment. I don’t dispute your experience.

    However, I can say that when I was a law clerk to Circuit Judge Ross in 1972 through 1974 and the several times I have sat with the 8th Circuit between 1992 and now, I cannot remember an oral argument presented by CJA counsel that was not concluded by one of the judges thanking counsel for taking the appointment.

    Indeed, the only time I ever remember a lawyer being told to report a poor performance to his or her superior happened when an assistant state attorney general made a really bad and intellectually dishonest argument in a habeas case of some significance. That happened long ago, and, in my judgment, the ass chewing was entirely justified.

    By the way, and without intending to throw stones at a truly great judge and a liberal lion, Chief Judge Lay, whose decision was reversed in Snyder, could be a hard head. My guess is that the judge got really ticked off when Mr. Snyder refused to take further CJA appointments.

    All the best.

    RGK

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