Introduction to Lawyers' Responsibilities & Lawyers' Responses

The responsibilities placed on modern-day lawyers are dramatic in contrast to the minimal constraints that governed lawyers in the past. In general, an attorney's liability was limited to actions brought by the client for malpractice. Thus, the lawyer was inclined to behave with the interests of the client, and no other actor, in mind. This mindset was furthered by the weak government regulatory and bar disciplinary constraints that operated on lawyers. Finally, until the 1980s, there were no rules that effectively sanctioned a lawyer's submission of frivolous claims in court. Times, however, have changed. Lawyers in all segments of the profession feel compelled to ask: “To whom is the lawyer now responsible?” To the client, the lawyer maintains the traditional responsibility of competent legal representation, and the potential for malpractice liability has become even greater with the removal of procedural and evidentiary obstacles to clients' suing their lawyers. To third parties deemed to be intended beneficiaries of the attorney's services, the lawyer has acquired a responsibility under common-law and statutory regimes. To the legal profession, the lawyer's responsibility is to comply with the ethics codes that govern the practice of law. This compliance, however, has become more complicated due to multi-jurisdictional practices and the potential for federal pre-emption of state ethics codes. To the public, the lawyer has a civic responsibility to avoid assisting a client in violating the law. Finally, to the courts, the lawyer has the responsibility not to bring frivolous actions. Judges enforce this responsibility with the closely tailored sanctions of the new Rule II. In response to these expanded responsibilities, attorneys have taken steps to limit their exposure through such mechanisms as malpractice and Rule II insurance, specialized commercial entities that limit vicarious professional liability, and arbitration clauses.