Michael S. Greco
Past President, American Bar Association
Remarks to Kosovo Lawyers, Judges, Prosecutors and Government Officials at BenchBar Roundtable Regarding Regulating the Bench and Bar in Kosovo
Pristina, Kosovo
June 20, 2008
I. The Role of the Legal Profession in Addressing and Preventing Corruption
One of the chief objectives of the United States justice system is to
combat corruption. Lawyers, judges and bar associations have a significant role
in preventing and combating corruption, both in the general public and within the
legal profession itself.
With respect to maintaining the honesty and integrity of the legal
profession, two requirements must be met: an effective professional regulatory
structure, and an independent but accountable judiciary that is transparent,
highly respected and adequately funded.
An effective regulatory structure must include three things:
-the adoption of rules of ethics governing the professional conduct
of lawyers and judges;
-the adoption of fair rules governing the enforcement of those
conduct rules; and
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
-a professional entity for investigating, prosecuting, and sanctioning
lawyer and judicial misconduct.
II. Regulation of the U.S. Legal Profession
The responsibility for regulating the legal profession in the United States
lies primarily with the judicial branch of each state. In each state and the District
of Columbia, the court of highest appellate jurisdiction has the authority to
regulate the practice of law. This includes the adoption of rules of professional
conduct and rules and procedures for disciplinary enforcement.
The regulation of the legal profession by the judicial branch of government
is consistent with the doctrine of separation of powers, and maintains necessary
balance among the three branches of government—judicial, legislative and
executive. This divided but equal balance of powers is vitally important to a
democratic government. Moreover, the ABA has determined that judicial
regulation of the legal profession is more effective in protecting the pubic than
regulation by the other two branches of government.
In the United States an independent judiciary is of vital importance to
protecting citizens’ rights and freedoms. An independent and self-governing
legal profession, regulated by the judicial branch, is equally important to
protecting the rights and freedoms of the public.
As noted in the Preamble to the ABA Model Rules of Professional
Conduct, an independent legal profession is an important force in preserving
government under law, since violation of laws is more effectively challenged by a
profession whose members are not dependent on the government for the right to
practice. Although a state legislature may, under its police power, act to protect
the interests of the public, with respect to the practice of law the legislature does
so in aid of the courts—the legislature’s actions do not supersede or detract from
the courts’ powers to regulate the bar. The American Bar Association has long
supported judicial regulation of the legal profession in each state by the highest
court in the state.
With respect to discipline of judges, in addition to impeachment and
legislative provisions, judicial conduct commissions have been created by state
constitutions, court rules, or statutes. First established in 1960, judicial conduct
commissions are now a part of every state’s judicial disciplinary process.
Sanctions that may be imposed on judge – after a process that affords due
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
process and fairness --include reprimand, suspension, and removal. Typically,
the judicial conduct commission makes a recommendation to the state’s highest
court regarding appropriate discipline of a judge. While the ABA has no role in
the actual disciplining of lawyers and judges, the ABA has an important role in
helping state and federal judiciaries in the adoption of codes of ethics and
disciplinary procedures. The ABA does so by promulgating Model Rules that are
adopted by the states.
All the ABA Model Rules regarding lawyer and judicial ethics and
enforcement are available on the ABA website at www.abanet.org/cpr.
III. Standards Governing the Professional Conduct of Lawyers and Judges
A. Overview
Because lawyers are officers of the justice system, all ABA-adopted
policies relating to lawyers’ and judges’ ethical responsibilities emphasize that
lawyers and judges can neither participate in nor assist in the criminal conduct of
others. Engaging in such conduct is a violation of the ABA Model Rules of
Professional Conduct and the ABA Model Code of Judicial Conduct.
It should be noted that the ABA Model Rules for lawyers and judges do
not generally use the terms “corrupt” or “corruption.” Instead, such conduct is
understood to mean criminal or fraudulent conduct under the relevant Model
Rules.
B. ABA Model Rules of Professional Conduct
I will address several provisions of the ABA Model Rules that deal with
criminal or fraudulent conduct -- or corruption -- by lawyers or judges .
Rule 1.1 (Scope of Representation)
The first and broadest direction to a lawyer with respect to what could
generally be categorized as “corrupt” conduct appears in the language of
paragraph (d): “A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent…” This Rule leaves no
doubt that lawyers simply may not engage in corruption in any way without being
subject to discipline.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
Rule 1.4 (Communication)
This Rule requires that a lawyer who realizes that a client seeks
assistance to engage in unlawful conduct must inform the client of the lawyer’s
refusal to assist the client.
Rule 1.6 (Confidentiality of Information)
Confidentiality is the foundation of trust between a lawyer and a client,
because it enables a lawyer to provide competent, thorough, and effective legal
representation. The U.S. legal profession has aggressively resisted efforts by
the federal and state governments to undermine that foundation. It is therefore
important to note that two of the six exceptions in Rule 1.6 permitting or requiring
a lawyer to reveal confidential information relate explicitly to criminal or fraudulent
conduct of a client.
The first exception allows disclosure of confidential information “to prevent
the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another.” The second
exception permits disclosure “to prevent, mitigate or rectify substantial injury to
the financial interests or property of another that is reasonably certain to result or
has resulted from the client’s commission of a crime or fraud.”
Rule 1.13 (Organization as Client)
Corporate wrong-doing occurs world-wide, and the United States in recent
years has experienced some notable examples within its borders. ABA Model
Rule 1.13 was amended in response to the US Congress’s “Sarbanes-Oxley”
legislation relating to corporate governance matters. The Rule can be described
briefly as requiring that a lawyer “report up the ladder” of corporate authority in
order to ensure that a corporation, through the acts of its officers and
constituents, complies with the law.
Rule 1.16 (Declining or Terminating Representation)
Whenever a lawyer’s representation of a client who engages in criminal or
fraudulent conduct directly involves the lawyer in violating the Rules of
Professional Conduct, the lawyer is required by this Rule to withdraw as counsel
for that client. In addition, a lawyer is permitted to withdraw if the client has used
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
the lawyer’s services to perpetrate a crime or a fraud, or if the lawyer believes
that a client’s course of conduct will constitute a crime or a fraud.
Rule 3.3 (Candor to the Tribunal)
This Rule is specifically directed at ensuring that a lawyer does not assist
a client in perpetrating a fraud upon a court or other tribunal. The Rule prohibits
a lawyer from assisting a client to testify falsely or the lawyer himself/herself
presenting false information to a court, and it places an obligation on the lawyer
to report any false representation to a court when the lawyer learns about it.
Rule 3.4 (Fairness to Opposing Party and Counsel)
This Rule prohibits criminal or fraudulent conduct that is considered to be
“corrupt” conduct. The Rule provides that a lawyer may not “unlawfully obstruct
another party’s access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value.” The Rule also
provides that a lawyer shall not “falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that is prohibited by law.”
Rule 7.6 (Political Contributions to Obtain Government Legal Engagements or
Appointments by Judges)
This Rule provides that if a lawyer, alone or with other lawyers in his or her
firm, makes a political contribution to a government official for the purpose of
having such official hire or appoint them to perform legal work, the lawyer is
prohibited from accepting such an appointment. As will be seen when I discuss
several ethics provisions relating to judges, judges are prohibited from making
such appointments of counsel based upon political contributions they have
received, or may receive.
Rule 8.3 (Reporting Misconduct)
This Rule helps to ensure that when one lawyer engaes in misconduct
(which would include any type of corrupt activity), any other lawyer who has
knowledge of such misconduct is obligated to report the misconduct to the
appropriate authority.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
Rule 8.4 (Misconduct)
The final ABA Rule of Professional Conduct I will mention that is relevant
to corruption is Rule 8.4, which identifies and lists various forms of lawyer
misconduct. Two of its provisions are particularly relevant to corruption:
It is professional misconduct for a lawyer to state or imply an ability to
influence a government agency or official or to achieve results by means that
violate the Rules of Professional Conduct or other law; and knowingly to assist a
judge or judicial officer in conduct that is a violation of the rules of judicial conduct
or other law.
C. The ABA Model Code of Judicial Conduct (2007)
A number of provisions of the ABA’s recently-revised Model Code of
Judicial Conduct deal with corruption. Some apply solely to a judge’s personal
conduct, independent of his official duties as a judge. Others apply to a judge’s
proffesional conduct as a judge, and specifically with respect to a judge’s
relationships to parties and lawyers who may appear before the judge.
Rule 1.1 (Compliance with the Law)
This Rule requires that judges “comply with the law.” This unequivocal
and sweeping requirement clearly leaves no room for a judge to become involved
in any form of corruption, whether public or private.
Rule 2.2 (Impartiality and Fairness)
This Rule requires that the judge perform all duties of judicial office fairly
and impartially. The Rule generally prohibits a judge from participating in such
corrupt practices as deciding a case other than on the merits or in exchange for
some improper consideration. Several additional rules more specifically identify
particular threats to the fair administration of justice, and provide for
disqualification of judges in order to counter those threats.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
Rule 2.4 (External Influences on Judicial Conduct)
Rule 2.4 prohibits a judge from allowing “family, social, political, financial
or other interests or relationships to influence the judge’s judicial conduct or
judgment.”
Rule 2.11 (Disqualification)
This is perhaps the most significant of all rules in the Model Code of
Judicial Conduct with respect to eliminating potential corruption. It sets out all
those types of relationships and conduct on the part of judges (as well as
lawyers) that result in a judge being obligated to recuse, or disqualify, himself or
herself from hearing a particular matter. It identifies a range of conflicting
interests stretching from family members of the judge having an interest in a
proceeding, to a judge having received political or campaign contributions from a
lawyer or a party appearing before him or her.
Rules 3.11- 3.15 (Judges’ Personal Activities)
This series of Rules deals with personal activities of a judge that could
result in the judge having to be disqualified from hearing a case by requiring the
judge to disclose his or her other sources of income, the receipt of gifts and other
things of value, and participation in activities sponsored by parties whose
interests could come before the judge. These Rules, like several of the lawyer
disciplinary rules discussed above, have an “in terrorem” effect: knowing that
they are ethically required to publicly disclose such gifts and relationships, judges
are discouraged from engaging in such conduct in the first place.
Canon 4 (Judges’ Political Activities)
Finally, the most sensitive provisions of the Model Code of Judicial
Conduct considered in the context of “political corruption” are those found in
Canon 4 of the Code. Constitutionally-guaranteed freedoms such as a judge’s
freedom of association and freedom of speech create significant tension when
viewed alongside the need to ensure a judge’s impartiality and the independence
of the judiciary.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
The ABA has carefully evaluated these competing interests and has
established limits on judges’ involvement with political parties, their acceptance
of campaign contributions from groups having “special” interests in court rulings,
and the kinds of promises that candidates for elective judicial office can make.
Each such provision in the Model Code is directed toward ensuring that judicial
decision-making is not corrupted by improper influences.
IV. Lawyer and Judicial Disciplinary Enforcement
The last portion of my remarks deals with disciplinary enforcement of the
ethical Rules I have been discussing.
Corrupt practices constitute the most serious type of professional
misconduct and typically involve misuse of client funds, bribery or fraudulent
behavior. The U.S. is not immune from instances of such misconduct by lawyers
and judges, but it is atypical. According to the 2006 ABA Survey of Lawyer
Discipline Systems, of the 1.3 million lawyers in the United States with active
licenses, only 5,186 were charged with some form of misconduct.
While the details of the misconduct that led to such charges are not
available, only a small percentage would have involved what could be described
as corrupt practices. A current national survey regarding judicial conduct is not
available.
As noted earlier, the legal profession confronts any corruption by lawyers
by promulgating rules of conduct that lawyers and judges are required to comply
with or risk losing their licenses or positions. The role of the profession in
enforcing those rules is particularly important as the primary purpose of
professional regulation is to protect the public.
A.
ABA Policies and State Lawyer Disciplinary Agencies
The ABA Model Rules for Lawyer Disciplinary Enforcement recommend
that the states’ highest courts create independent agencies to investigate and
prosecute cases of lawyer misconduct. To ensure that such an independent
agency itself remains corruption free, it must be accountable to the public,
representative of the diversity present in the profession, transparent, and
consistent in its application of rules and procedures.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
In this regard, the the ABA Standards for Imposing Lawyer Sanctions
provide for:
¾ A professional disciplinary counsel and staff;
¾ Separation of prosecutorial and adjudicatory functions;
¾ Inclusion of non-lawyers on the disciplinary board;
¾ Representation of all segments of the profession and public on the
disciplinary board and hearing panels;
¾ Disciplinary hearings that are open to the public after the filing and service
of formal charges; and
¾ Public disciplinary sanctions.
B. ABA Policies and State Judicial Disciplinary Agencies
As with lawyer discipline, the ABA has long promoted effective and strong
regulatory systems for judges. Ensuring ethical judicial conduct is critical to
preserving the integrity and independence of the judiciary, and to enhancing
public confidence in the entire justice system.
In 1994, the ABA adopted a new national model for judicial disciplinary
enforcement known as the ABA Model Rules for Judicial Disciplinary
Enforcement. These Model Rules carefully balance of a number of competing
interests: the rights of judges to fair treatment in the disposition of complaints
against them; the judges’ interest in the confidentiality of complaints for which the
commission finds there is no reasonable cause to believe that misconduct
occurred; the public’s concern that complaints against judges be given serious
consideration and that judges be held to high standards of behavior; and the
interest of the judges and the public in having judicial disciplinary complaints
resolved promptly and accurately.
The Model Rules also establish a model for the discipline of a member of
the state’s highest court. Rule 26 provides that a complaint against a member of
the highest court proceeds through the process in the same way as any other
judge, except that a “special supreme court” is constituted to act in place of the
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
highest court. The “special supreme court” should consist of a number of judges
equal to the number of justices of the highest court and may be composed of trial
and appellate court judges.
C. General Overview of Lawyer and Judicial Disciplinary Processes
Practically speaking, what does the disciplinary process for lawyers and
judges consist of in a given state in the United States?
In the US, the discipline of both lawyers and judges begins with the filing
of a complaint. Anyone may file a complaint against a lawyer or a judge. The
disciplinary agencies may also initiate investigations on their own when
appropriate.
Once filed, a complaint against a lawyer or judge is analyzed to determine
whether the disciplinary agency has jurisdiction or whether the facts as alleged
constitute a violation of the applicable rules of professional conduct. If not, the
person making the complaint will be notified, and where appropriate, referred to
another agency for assistance. If the disciplinary agency does have jurisdiction,
the complaint will be fully investigated.
At this stage in both lawyer and judicial disciplinary processes, the matters
are kept confidential. If the agency determines that there is probable cause that
the lawyer or judge committed misconduct, formal charges will be filed. In most
states, consistent with ABA policy, upon the filing and service of those formal
charges, the matters become public. Members of the public can view the formal
pleadings filed in the case and can attend the disciplinary trial.
Disciplinary trials are typically heard by a panel consisting of two lawyers
and a non-lawyer in cases of lawyer discipline. The composition varies in judicial
disciplinary cases, but the ABA recommends that hearing panels consist of
judges, lawyers and public members.
Certain due process protections apply. For example, lawyers and judges
formally charged with misconduct are entitled to notice of the charges against
them, the right to confront witnesses against them and present evidence, the
right to counsel, and the right to assert their Fifth Amendment protections against
self-incrimination.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
On the other hand, courts have uniformly concluded that the Double
Jeopardy Clause of the U.S. Constitution is not applicable in disciplinary
proceedings.
In most states the rules of evidence apply, and the state’s rules of civil
procedure govern pre-trial practice. After the trial, the hearing panel issues a
report and recommendation as to whether the lawyer or judge has committed the
charged misconduct. The disciplinary agency bears the burden of proving the
allegations of the formal charges by the designated standard of proof, which in
most jurisdictions is “clear and convincing” evidence. Ultimately, the state’s
highest court will decide the matter and impose the appropriate discipline.
Lawyer and judicial disciplinary state agencies describe on their web sites
the manner in which complaints proceed through their system and also make
complaint forms available. For the Commonwealth of Massachusetts, where I
practice law and years ago served on the Massachusetts Board of Bar
Overseers, which is appointed by the state’s highest court, see
http://www.mass.gov/obcbbo/.
Conclusion
The Report of the ABA Commission on the 21st Century Judiciary stressed
that: “[A]n independent judiciary guarantees every citizen access to a branch of
government designed to protect the rights and liberties afforded by federal and
state constitutions, and to resolve disputes peacefully and impartially.
Fundamental to this unique role of the courts is the necessity for the judiciary to
be distinct from the other two branches of government, functioning independently
to ensure an effective role in the American tradition of a republican form of
government.”
The system for regulating the ethical conduct of lawyers and judges in the
United States, one where transparent and clear rules of professional conduct are
fairly and effectively enforced, is fundamental to preserving the independence of
the judiciary. The system protects the public and helps ensure the public’s trust
and confidence not only in the judiciary and legal profession but, more
importantly, in the justice system itself.*
________________
* I thank George A. Kuhlman, Ethics Counsel, and Ellyn S. Rosen, Associate Regulation
Counsel, of the ABA Center for Professional Responsibility for their assistance in the preparation
of these remarks.
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008
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REMARKS TO KOSOVO LAWYERS, JUDGES, PROSECUTORS AND GOVERNMENT OFFICIALS
DURING A BENCH BAR ROUNDTABLE REGARDING REGULATING THE BENCH AND BAR IN KOSOVO
Michael S. Greco
Past President, American Bar Association
June 20, 2008