The (F)Utility of Rules: Regulating Attorney Conduct in Federal Court Practice

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics rules. District courts use a variety of approaches, with the majority adopting the rules of the state in which the court sits, causing problems for lawyers who have a national practice, but preferable to lawyers who practice within a single state. The cacophony of approaches at first blush begs for resolution through rule-making. But rulemaking on issues of professional responsibility in federal court practice has been an utter failure to date. Multiple cultures and values come together when we try to regulate attorney conduct in federal court practice. When exercising their inherent power to control proceedings in front of them, federal courts often look to either the state rules or the Model Rules for guidance. But even when looking to particular rules, federal courts revert back to a common-law approach by relying on their own body of federal case law to interpret the text. The rules of professional conduct contribute to this common law, contextualized approach to regulating attorney conduct in court practice. The rules do not typically address many of the issues that arise in litigation, often contain open-textured standards, and most importantly fail to address the remedy for violation of the rules, leaving all these issues to judicial discretion. In addition, judicial discretion in applying rules of professional conduct is particularly difficult to constrain. Judges often have primary discretion to choose the rule of decision because of the incompleteness of most lawyer codes and they have secondary discretion because most issues are highly fact-bound and not easily subject to judicial review. In addition, judges have wide fact-finding latitude to simply ignore the attorney conduct questions, which are usually ancillary to the merits of the litigation. Rules are unlikely to constrain this broad discretion, particularly among judges who have a strong culture of autonomy and absolute belief both in their ability to regulate the conduct of attorneys who appear before them and, perhaps more importantly, their finely honed ability to exercise discretion. The debate over uniform approach to attorney conduct in federal court practice has yielded some positive benefits. Federal courts appear to be moving on their own accord toward a system of dynamic conformity (using the rules of the state in which they sit); the Department of Justice has sought through litigation and negotiation to resolve issues of greatest concern to them; and we have developed significantly greater insights into the judge’s role in regulating attorney conduct in litigation