Choosing to Practice Ethics and Professional Responsibility Law
By Teresa J. Schmid
Teresa J. Schmid is a partner in the firm of Schmid & Watson LLP. She is a consulting expert in legal ethics, lawyer regulation, and bar association administration. A member of the State Bar of California's Standing Committee on Professional Responsibility and Conduct and, she is also a member and past Chair of LACBA's Professional Responsibility and Ethics Committee. She is also a past Executive Director for the Oregon State Bar and for the State Bar of Arizona, past Director of Professional Services for LACBA, and past Assistant Chief Trial Counsel for the State Bar of California.
Many lawyers who now practice exclusively in ethics and professional responsibility were, at some point in their careers, in some other area of practice. At some point he or she was tasked to answer the ethics question other lawyers in the firm could not solve. Maybe it was the bar ethics committee for which there was an opening, or a disciplinary job description that sounded interesting, or the law school course other professors avoided because of its time slot. Most practitioners in this area can trace their initiation to a happy professional accident, one that brought them into a field where the community is congenial, the rewards range from fine to really good, and more often than not they enjoy the high regard of most of their peers most of the time. What's not to like? Nothing. Actually, it is a great practice, and it can be entered by choice rather than just by accident.
First, a couple of definitions. Ethics generally refers to the law of lawyer regulation and discipline, including the rules of professional conduct, formal ethics opinions, and court decisions that interpret them all. California is the only state with a dedicated State Bar Court that includes a Hearing Department (trial court) and a Review Department (an appellate division whose published decisions are precedential.) Professional responsibility is a broader term that can include both ethics and civil liability for legal malpractice, closely related substantive areas of law that combine to set the standard of legal practice in any given jurisdiction. Practitioners in ethics and in professional responsibility are generally proficient in both.
Opportunities for practice are many and varied, including policy-making through volunteer bar leadership; litigating before the State Bar Court and the civil courts; working in regulatory agencies; advising lawyers, firms, and companies as a consulting expert; testifying as an expert witness; teaching law school; and doing about as much writing and speaking as one could wish, ethics being a required subject for mandatory continuing legal education in California and most other states. California has a certified specialization program in legal malpractice law. There is even a national board certification for legal malpractice offered by the American Board of Professional Liability Attorneys and accredited by the American Bar Association. As an area of legal practice, therefore, it carries some professional gravitas.
If the language of legal ethics is sometimes arcane, the substantive issues never are. They pose the hardest questions facing any lawyer: What are my professional duties here? How will this course of action impact my client? How will it impact others? What is the rule? What is the right thing to do? Are the rule and the right thing to do the same? While every lawyer should have a working knowledge of the rules of professional conduct, true expertise in the law of lawyering requires a passionate interest in questions like these, and in giving guidance to colleagues when absolute answers are thin on the ground.
If a lawyer's first deep dive into the rules of professional conduct arises from a concern about a potential violation rather than from a happy professional accident, fear and loathing may neutralize any potential for passionate interest in the subject. Therefore, for now the key to becoming a practitioner in ethics and professional responsibility is to consciously create the happy accident. Spoiler alert: the opportunities for entering this field can be subtle, and all will come disguised as hard work. That said, there are strategies available to the newest admittees to the profession as well as to the hardiest of its veterans to choose ethics and professional responsibility as a career destination.
Employment opportunities in ethics: The time is historically right for entering ethics and professional responsibility as a career. The sections of the State Bar currently are separating and forming their own membership organization, which means that the State Bar's focus will be on expanding its regulatory role. Any lawyer looking for employment opportunities in ethics and regulation should watch the State Bar's job listings for both its Los Angeles and San Francisco offices. There are crossover ethics opportunities in government agencies and in corporations' ethics and compliance offices, because even where the governing rules differ, the issue-spotting skills are the same: an instinct for what conduct is acceptable and what is not in the organization's ethically sensitive environment. ("Uh oh, there's bound to be a rule about this.") 2016-2017 is also the year of the Rules Revision Commission, which was tasked with a complete review and revision of all 68 California Rules of Professional Conduct. When the state supreme court adopts the final version of the new rules, still pending as of this writing, the playing field will be well and truly leveled for the new entrants as well as the experts, for the rules of the game will be new to all.
Bar leadership: Ultimately, impacting the law of lawyering is about policy-making. The California Supreme Court has plenary authority over the admission and discipline of lawyers within its jurisdiction, but it relies heavily on the formative input of bar associations throughout the state in exercising its authority. The State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) issues ethics opinions that are cited by courts regularly as legal precedent, as are the opinions of LACBA's Professional Responsibility and Ethics Committee (PREC), and the Legal Ethics Committees of the Bar Associations of San Francisco and the San Diego County Bar Association. Likewise, California lawmakers considering changes to the State Bar Act will also elicit the input of bar association leaders. While these consulting leaders often have deep experience in the ethics field, even a beginner can volunteer for any bar's ethics committee and begin a path toward recognized expertise. If a local bar does not have a committee now, it can create one, or even a discrete task force to respond to specific ethics opinions and proposed rules that regularly appear for public comment. It is in such crucibles as these that careers in legal ethics are formed.
But bigger and better opportunities for practicing ethics and professional responsibility are at hand. The newly created section association, unnamed at this writing but scheduled to go online as of January 2018, represents only 16 areas of practice, which do not include ethics. In any bar association, sections are organized to meet the special needs of practitioners in that area, including onboarding training for new lawyers, continuing education, and expert training for certified specialists. The time is right for creation of a new, statewide Section in Legal Ethics, Professional Responsibility and Compliance where lawyers at every stage of their careers can create a path to this important and exciting area of practice. No more happy accidents; the practice of ethics should be a choice.