ABA Journal


Legal Ethics

Do JDs in nonlawyer corporate roles require new ethics model?

Oct 28, 2013, 11:15 am CDT


This is hide-the-ball horse hockey. If a person is a licensed attorney, that person is fully subject to the professional conduct rules of the licensing jurisdiction, whether acting as a "compliance" officer or selling securities. If that person breaches the rules by engaging in, or couseling the client on how to engage in, criminal conduct, the breach is subject to discipline. If that person short-changes a girl scout selling cookies by the corner grocery, that conduct is subject to discipline. It's that simple. It's part of the understanding when the lawyer decides to take license, and it should be part of the understanding when corporations hire lawyers in any capacity. We don't need any "new ethics model" to help facilitate corporate fraud.

By B. McLeod on 2013 10 28, 12:11 pm CDT

The title is confused, and I think the article is as well.

There is no "ethics model" for anyone holding a particular degree, whether it's a JD or an associate's degree of some sort. The ethics model is for a profession, and the legal regulatory model applies to licensed professionals.

By F. Siler on 2013 10 28, 3:54 pm CDT

I wonder if the article was actually aiming at folks who have a JD but may not be licensed? It talks about those who are licensed, in which case I agree with B. McLeod - attorney is an attorney. Ethics are ethics.

Where it get stickier, I think, is when you have a JD who either didn't take or didn't pass the bar, but has the same training and abilities as those who did (or who was licensed in a previous state, let their license lapse, etc). Are THOSE persons bound by the rules of ethics? They aren't "practicing law" but their JD certainly helps them out a lot! This is becoming more and more common over time due to how many JD's we have looking for jobs.

By RecentGrad on 2013 10 28, 4:50 pm CDT

This is a terrible idea. I'll be honest: I am looking for a way out of law practice. I look at what clients are willing to pay me for the work I do. Between dealing with them, the courts, and the bar there simply has to be an easier and less stressful way. What is proposed here would punish those who have grown weary of practicing law but who want to keep their options open just in case an alternative career doesn't pan out.

State bar disciplinary authorities already have way too much power. The last thing we need to do is expand it.

By Jason L. Van Dyke on 2013 10 29, 12:40 pm CDT

Perhaps a better question is whether there should be higher ethical standards for those who publish law review articles. As B. McLeod correctly notes, any licensed lawyer remains subject to the rules of professional conduct of the state(s) where he or she is licensed, regardless of whether and to what extent the lawyer is actually practicing law. If the person in question is not licensed, then he or she is subject to the ethical tenets (or lack thereof) of whatever profession or position they are currently in. Should there be heightened ethical standards for chief compliance officers? Perhaps. But if so, it is because of the compliance function being performed, not because the person has (or lacks) a law degree.

By T. Treger on 2013 10 29, 2:55 pm CDT

This article is a litte misguided and not well developed. I just returned from an industry conference where this was a hot topic. It happens more than the average person thinks- attorneys are in roles as directors and managers for Construction, Project Management, Real Estate, Compliance, Regulatory, Licensure, Employment Representative, Executive/C-Suite, etc. The true conflict occurs wherein the attorney has an unofficial legal job role, and the corporation doesn't pay for an official title nor provide the same level of authorization as an official title, and doesn't cover the unofficial attorney under the legal malpractice policy- but essentially expects the same work. Is that "unofficial" attorney required to disclose their education and licensure when dealing with all parties? Many corporate job descriptions, roles, and responsibilities do not require or expect it. I'm not trying to start a firestorm, just pointing out why there is conflict and an ethical conundrum. Personally I govern myself to meet the Code of Ethics regardless of my job description. I paid far too much for my degree and licensure to act otherwise.

By Quinn McWinn on 2013 10 29, 3:34 pm CDT

This entire idea is really problematic if it is to be applied to anyone who as a "law degree". In many other countries (e.g., United Kingdom, Australia, etc.) law is an undergraduate degree. Those folks go on to all sorts of other professions. Why should different ethical obligations be applied to them than to folks who earned their bachelors degree in history or math or political science? As stated in the other postings, the ethical restrictions are what being licensed is all about -- it makes no sense for them to apply to someone simply because they have knowledge of how the law works and apply that at work...

By Int'l Counsel on 2013 10 29, 3:58 pm CDT

I am a license d lawyer no longer in the profession and disagree completely. Actually I am much better at spotting legal issues and bringing legal in appropriately. I have no idea what the author means by "ceding less control" and speaks to someone who has never done this.

I guess all the kids who went to law school and can't find jobs actually limited their options by going. Really bad idea for law schools to support this insanity.

By brad on 2013 10 29, 11:02 pm CDT

Many jurisdictions have a procedure whereby a lawyer can "surrender" the license. We just need to make that universal. Then, when license holders want to take a job that is not "legal practice," and not be bound by the professional rules, they can just surrender the license.

By B. McLeod on 2013 10 29, 11:52 pm CDT

I am a licensed attorney for over 32 years - I have been a compliance and ethics officer for over 22 years - and in the last two companies for which I worked, despite my strong protestations, I was considered non-legal. Essentially, though reporting to the GC, I was not considered a practicing attorney for the company. The problem is, as many above have noted, I rendered a ton of legal advice (e.g., interpretation and application of various laws, rules and regulations) and was even assigned to brief the legal staff on new laws when they were enacted, such SOX, Dodd-Frank, FCPA and the UK Bribery Act. I ALWAYS and continue to act in compliance with the ethical code for attorneys, but the big problem is how OTHERS view those of us who no longer maintain an in-house counsel title (e.g., assistant GC, senior counsel etc.). This is form over someone above said, an attorney is an attorney is an attorney.

By Hockey19 on 2013 11 01, 12:35 pm CDT

After receiving my JD in '99 I moved to Seattle in the middle of the tech boom. I spent those initial eight years out of law school first in a J/V and then in a well know global tech company that acquired it. Over this entire period of time I was working on strategy, M&A and highly specialized techy deals in a non-legal (Corp. Dev/Strategy) role/department. My legal background (plus finance and acctg classes) was invaluable. Right place, right time for someone in my generation from 25-33 years old.

So while I agree with those who say "a lawyer is a lawyer is a lawyer," and I conducted my professional dealings as if that was the case, it is not that simple. For example, what if someone follows my career path right out of law school? How can you be a practicing lawyer if you never actually "practiced law" ever? What if you haven't taken/passed the bar?

Fast forward. I'm now in a boutique firm in the same niche/techy industry. Do I have a conflict of interest (today) for matters in which I was on the opposite side of the table in a commercial dealing back in my former job as a non-attorney? Hell, how about my former corporate employer who is a non-client? What if I told you I never signed a confidentiality agreement in my employment docs with either parent in the original J/V? To say that I know where skeletons even after 14 years is a gross understatement.

The truth is that there are so many JDs out there. Some will be exiting the law mid-career into some type of non-lawyer role (but where their legal education is a huge benefit). Many others I fear will be out in the marketplace having never practiced law but will know "just enough to be dangerous."

By Anonymous on 2013 11 01, 3:28 pm CDT

It's not clear to me what problem would be served by revisions outside of a subsection of nonpracticing lawyers who plan on practicing again in the future.

Although I have a JD, I've not sat for the bar and instead of practicing law, run a nonprofit organization that I founded prior to law school. As I'm not a lawyer any changes to the Model Rules are immaterial to me (instead I make sure to not engage in the unauthorized practice of law).

Those who have become licensed are already beholden to the Model Rules so long as they are licensed, regardless of their current occupation.

However, as the rules are merely recommendations AND are both enforced and policed by the Bar, their power is necessarily limited to the extent that a person cares about sanctions. If a lawyer is no longer practicing, and has no plans to practice in the future it doesn't seem that revisions would much of an effect. Instead, it appears that the discussed revisions would only be effective against those lawyers who no longer practice but intend to do so in the future.

As long as the legal profession's ethics model is self regulated & policed (i.e. not addressed through new legislation) it will never be able to effectively regulate people who simply aren't interested in being licensed.

By Drew on 2013 11 01, 3:42 pm CDT

Unfortunately, I have to agree with the concept. The 'general' presumption among lawyers appears to be that the 'natural' progression is Law School - Bar Exam - Law License – Practice Law – In-House Counsel. However, this completely ignores the reality of the current economy. According to the ABA, 62.3% of the class of 2012 are in positions that require a law license, which leaves 37.7% of 2012 graduates who are not 'practicing' law (see link below).

So when you look to your left, then right, one of you three will spend at least part, if not all of your career reporting to non-lawyers. Thus, the people who determine your salary, merit, performance, and ultimately, control your ability to put food on the table (or pay back your ridiculous student loan debt), are simply not bound by the same ethical rules you are.

In these quasi-legal roles, the newly minted lawyer is often far more educated (i.e. contracts law) than the 'decision makers' to which they report. It's easy to say 'that is the burden of being a lawyer,' but it ignores the fact that at least some of that 37.7% would actually consider giving up a kidney to practice law.

Do you tell this newly minted lawyer they have to live up to the same standards as someone who operates in a job-protected role designed to be ethically independent, or do you understand that these people (and they are people, not just 'another lawyer') may have to keep their mouth shut at times in order to keep their jobs?

Do you tell them the first 'non-lawyer' job they took out of law school determined their ultimate career path, so they shouldn't even bother to try and better their position in life, or do you tell them to send out dozens of resumes a month and apply to every 'lawyer' job for which they are even remotely qualified?

If my options are either to be an unemployed 'ethical' lawyer, or to completely surrender my law license, change my name to Dilbert and live the rest of my life working for a pointy haired boss, then I'll be joining the millions of Americans that your tax dollars support. After all, I gave up far too much to give up on the dream of actually practicing law.

Being on the outside looking in is a terrible position these days, and it's about time the ABA recognizes that today's economy has created a completely different type of quasi-lawyer.

By StLawyer on 2013 11 01, 4:02 pm CDT

I knew it! I knew getting a law license would be a ball and chain career wise. A red flag or black mark so to speak. Now there is corroboration.

By SME on 2013 11 01, 8:17 pm CDT

RecentGrad --> The answer is NO. They are not bound by the rules of ethics. What leverage would there be? The punishment that the bar has for those who violate ethics rules is suspension or removal of their license. How could they do that to a JD who does not have a license? Also, the fact that having a JD "helps them out a lot" is irrelevant. In that respect it's no different than other advanced degree or educational background.

By SME on 2013 11 01, 8:22 pm CDT

4 --> You are a luminary! There are many who are looking to travel in the opposite direction as you (see 13's comments).

By SME on 2013 11 01, 8:28 pm CDT

How hard is this? Whether you are currently practicing law or not, if your state license is "active," you have annual CLE requirements you must satisfy. Apart from that, if you're not seeing clients, giving legal advice or otherwise holding yourself out as an attorney, the ethical rules are irrelevant. They are meant to apply to attorneys AS attorneys, not to attorneys by training, but currently acting as history professors, TV commentators, writers of fiction, businessmen or women, or Civil War reenactors.

By Alexander Hamilton on 2013 11 01, 11:47 pm CDT

I disagree. The ethical rules apply whether you are acting "as a lawyer" or not. If you commit a crime or other act that is professional misconduct, it is not a defense to the resulting ethics charge that you were not "acting as a lawyer" at the time. If you do a stong-arm robbery (in some jurisdictions, even an offense such as a DUI), expect to have your character and fitness challenged in an ethics hearing.

By B. McLeod on 2013 11 02, 12:27 am CDT

No more ethics rules please. I've had plenty of quasi-legal roles and the realities are the business folks, more importantly your boss sets the tone, for how you will conduct your job. You can choose to disobey citing ethics, but then you may be out of a job. So this is a dilemma. I would hate to burden grads already hurt by a depressed legal economy and crazy student loan payments with more and more ethical obligations. A JD is just a JD, and should such JD desire to get licensed or perform attorney work then the bar associations are already there to police the JD's conduct. I should have known that a law professor with too much time and living off of student loan income mill would desire to impose more and more harsh standards on the backs of legal graduates.

By L on 2013 11 02, 3:47 am CDT

What L said. (Saves me some typing).

By SME on 2013 11 02, 1:02 pm CDT

Ethics rules are generally there to make it difficult to do your job properly. Aside from DIRECT conflicts, the rest is just designed to make a lawyer's life and work difficult and fraught with peril.

By associate on 2013 11 05, 3:13 pm CST

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