The New Method of Regulating Lawyers: Public and Private Interest Sanctions During Civil Litigation for Attorney Misconduct

Abstract

The topic of regulating attorney conduct most immediately raises thoughts of disciplinary panels established by court rule or legislative enactment. Such enforcement mechanisms typically are employed to hear alleged violations of the American Bar Association's Model Code of Professional Responsibility or its Model Rules of Professional Conduct. The code and rules now govern the professional conduct of American lawyers, whether they work on civil or criminal matters and whether they work in or out of court. Further reflection on the subject might also prompt consideration of the conduct of attorneys being questioned by their former clients, either in a civil malpractice suit or in a setting in which the legal representation during an earlier criminal case is being challenged. However, the topic would prompt few to reflect upon the regulation of lawyers during litigation for conduct which occurs during that litigation and in which the lawyers are not named as parties, their licenses are not in jeopardy, and their effective legal assistance under the Sixth Amendment is not examined. This relatively new method of regulating lawyers during the litigation of claims belonging to others merits greater attention. The following paragraphs are intended to prompt such attention and will concern only the regulation of attorney conduct during civil litigation in traditional (and not administrative or other) courts.