[Draft 2] - Attorney Business Practices

[Simone Republic]

Introduction

This is based on the UK Solicitors Regulatory Authority Code of Conduct. So it’s British not American regulation based, but it’s broadly similar. (Some parts are from the American Model Rules of Professional Conduct).

Note that this regulates business practices, not professional ethics. This is largely for length reasons (as that topic really needs a separate resolution. Sections on disciplinary action, etc., have been removed.

Category: Regulation/Legal Reform

Draft 2

The World Assembly (WA),

Noting the critical role that attorneys play in everyday life;

Desiring to impose at least minimal standards on their business practices, in the interest of protecting their clients, especially clients from other WA states;

The WA hereby enacts as follows:

1. Definitions.
   
   1. "Attorney" means anyone admitted to practise law on behalf of a client (“client”). This including advocates, barristers, solicitors, and other similar positions. This also includes any firm(s) of attorneys.
   2. "Attorney" excludes anyone working as an employee such as in-house counsel. It also excludes anyone elected to a position of law under a political process.
   3. "WA state" includes its sub-national divisions.
   4. Definitions in the singular include the plural and vice versa.
2. Admittance.
   
   1. No one may act as, or hold themselves out as, an attorney unless duly admitted by a competent authority (“authority”) of a WA state.
   2. Each WA state is entitled to admit attorneys for practicing its own laws pursuant to its own processes and its own qualifications requirements.
   3. If one WA state ("practicing state") is to admit attorneys specifically qualified for the laws of another WA state ("foreign state") to practice in the practicing state, must ensure that such attorneys are qualified under the laws of the foreign state, in addition to any requirements imposed by the practicing state.
3. Engagement letter.
   
   1. An attorney can only be engaged to act if an engagement letter ("letter") has been duly executed by a client.
   2. Any variations to a letter require the explicit consent of the client.
   3. Prior to an engagement, an attorney must clearly advise clients of their full name, their state (or sub-national division) of admittance, qualifications obtained, specialization, experience, and any adverse disciplinary record where such record is publicly available.
   4. The letter must set out the scope of work, fee structure (including potential costs associated with appellate process), costs on account (if any), the handling attorney(s), service standards, and other pertinent matters as required by each WA state.
   5. If an attorney is acting on an hourly rate or retainer basis, the attorney must give a reasonable estimate of the fees to be incurred.
   6. An attorney is required to ensure that the client is legally competent at the time of the engagement, and to fully explain the implications of the engagement to the client prior to engagement.
4. Client money.
   
   1. An attorney is required to properly safeguard and account for any client money.
   2. All client money must be segregated from proprietary money and held independently in a depository institution with satisfactory levels of deposit insurance.
5. Costs on account.
   
   1. A general retainer is earned subject to the nature of the general retainer. A specific retainer for a case (and costs on account) must be expensed as charges are incurred.
   2. Any costs on account held must not be excessive.
   3. Any unearned retainer or costs on account must be promptly returned to the client after the conclusion of an engagement.
6. Fees.
   
   1. Fees must be reasonable based on (i) the time, skill and labor required from the attorney and (ii) the customary rates charged in that WA state.
   2. Attorneys acting on a purely contingent fee basis must be entitled only to a reasonable share of any results obtained.
   3. Non-refundable fees are prohibited.
7. Insurance.
   
   1. A practicing attorney must have adequate insurance coverage with a reputable insurer at all times.
   2. Such coverage shall cover malpractice, professional discipline, and misconduct, as well as business risks such as fire, flooding, and cybersecurity.
8. Jurisdiction.
   
   1. Each WA state is responsible for the interpretation and enforcement of this resolution, and for any penalties that may be imposed.
   2. Such enforcement shall be in good faith, and shall be conducted as such to provide the client the greatest amount of protection and rights.

Char count: 4,101

[Simone Republic]

Roleplay

“What? Do attorneys have ethics?” One ursine assistant asks.

“Yeah, in theory.”

“In practice?”

“I guess so. You just define ethics differently. Anyway this thing is business conduct rather than professional ethics.”

“Anyway, who wrote this?”

“Milky whatever-its-name-is, our donkey-a** fat f**k minister.”

“But he’s not a practising lawyer! He isn’t even qualified! He’s just a nobody obsessed with cannibalism who doesn’t know sh!t and can’t even cite laws in OSCOLA and can’t even use proper spelling and grammar according to the OED…. ”

“I know. But he’s our minister and ambassador.”

“Isn’t this going to get ripped to shreds by all the lawyers in GA?”

“We’ll see. Not my problem anyway. Anyway I’m gonna press the button to publish.”

“Wait…. what about that line on Sep?”

“Oh let me cross it out.”

[Tigrisia]

Attorney excludes anyone working as an employee. It also excludes anyone elected under a political process.

Please explain whom exactly that excludes. Does this mean that people that have been elected (e.g. member of the municipial council) can no longer work as attorneys as long as they hold this office?

An attorney is required to ensure that the client is legally competent at the time of the engagement. An attorney is required to fully explain the implications of the engagement to the client prior to engagement.

We would like to know how, under these conditions, people that are not legally competent or where the legal competence can be disputed should be represented by in court.

For the delegation of the Federal Republic of Tigrisia at the World Assembly,
Vice Ambassador Claus Sato
Chargé d'affaires ad interim

[Comfed]

I'm not sure how this is an international issue?

[Tigrisia]

I'm not sure how this is an international issue?

"We have many regulations that are no interantional issue. Just asks the bookkeepers..." replies an annoyed, well-known Junior Consular Secretary of the Tigrisian Delegation.

[Simone Republic]

Bump. Further feedback appreciated before this goes to Draft 2.

[Astrobolt]

OOC: Is there any reason why you thought it prudent to bump so many drafts at once? 13 of your drafts sit on the 1st page at this time, and to be frank I feel it unfairly detracts attention from other authors.

[Simone Republic]

OOC: Is there any reason why you thought it prudent to bump so many drafts at once? 13 of your drafts sit on the 1st page at this time, and to be frank I feel it unfairly detracts attention from other authors.

Most of the drafts I bumped are related to recently passed resolutions: for example, the transportation ones don't work well (I think anyway) unless GA34 was repealed (which it was via GA732). Also I tend to have a map as to what I plan to submit 2-3 months in advance.

[Royal Emerald Republic]

Introduction

This is based on the UK Solicitors Regulatory Authority Code of Conduct. So it’s British not American regulation based, but it’s broadly similar. (Some parts are from the American Model Rules of Professional Conduct). Note that the regulation of lawyers is deliberately placed under a government authority, ie SRA in the UK, not under a self-regulatory body like the ABA.

Note that this regulates business practices, not professional ethics for lawyers.

Category: Regulation/Legal Reform

Draft 1

The World Assembly (WA),

Noting the critical role that attorneys play in everyday life;

Desiring to impose at least some standards on their business practices;

The WA hereby enacts as follows:

1. Definitions.
   
   1. Attorney means anyone admitted to practise law on behalf of a client (“client”), including advocates, barristers, solicitors, and other similar positions. This also includes any entity or firm of attorneys.
   2. Attorney excludes anyone working as an employee. It also excludes anyone elected under a political process.
   3. WA organ means any of the committees of the WA.
   4. WA state includes its sub-national divisions.
   5. Definitions in the singular include the plural and vice versa.
2. Admittance.
   
   1. No one may act as, or hold themselves out as, an attorney unless duly admitted by an authority (“authority”) of a WA state.
   2. Each WA state is entitled to admit attorneys pursuant to its own process and subject to its own qualifications requirements. This includes both attorneys qualified for the laws of that WA state, or for the laws of other states.
3. Authority.
   
   1. The authority must be a government authority with representation from individuals that are not attorneys, and not a self-regulating entity.Canadian
      & American contention here: the Supreme Court generally determines this on this side of the pond. However, the method of a superior court setting the law as to who can grant licensure is also found in other countries too, such as France, New Zealand, Australia, and various other members of the EU. Likewise, the EU does have a nonprofit which helps manage the official licensures from different bars and supreme courts called the CCBE. While I respect trying to have non-lawyers oversee the process, this can also lead to immense politicization of attorneys and the judiciary where non-attorneys, without any education as to law or how it works, could foreseeably incorrectly impose conditions, rules, or interpretations that harm the legal profession.
   2. Any disciplinary action made by the said authority must be publicly disclosed.Except where the action was of harmless error or via technicality where there were no damages. This includes any action subsequently overturned under any appellate processes.
4. Engagement letter.
   
   1. An attorney can only be engaged to act an engagement letter has been duly executed by a client. Any variations to an engagement letter require the explicit consent of the client. A client, who upon advice of an attorney, reasonably believes that person to be their attorney, has initiated an attorney-client relationship unless the attorney expressly disclaims the relationship or if the relationship is ratified by engagement letter. Added this for malpractice concerns.
   2. The engagement letter must set out the scope of work, fees, costs on account (if any), the handling attorney(s), service standards, and other pertinent matters as required by each WA state.
   The engagement letter must explicitly indicate whether the fees are contingent, fixed hourly, retainer, or flat. In the event of fixed hourly or retainer, the attorney must give a reasonable calculation of the fees to be incurred. In the event of a flat fee, the fee must be reasonable as to the local custom of similar attorneys engaged in a similar practice of law within the WA State in question.
   
5. Prior to an engagement:
   
   1. An attorney must clearly advise clients of their full name, their state of admittance, qualifications obtained, specialisation and experience, track record, as well as any disciplinary action against them at any time in their career.Any disciplinary action here is overbroad. Additionally, this is a duty which is improper given that censure is almost always public by default. In my opinion, this takes the oneness away from the responsible body, generally the highest court in a member state, and places it on attorneys. Moreover, not all discipline is public, so this would also violate privacy law. A better way to mitigate would be to ensure public databases of attorneys are readily available for review and search.
      
      Reasoning & Explanation: The general principle of Caveat Emptor applies here as it does for people who go to their doctor or licensed lender for a loan (neither of which have a duty to disclose to you malpractice - in the case of physicians - or discriminatory violation in the case of licensed lenders.) For example, if a prior client "complains" and the professional conduct review board finds that they committed a picayune offense or harmless error and is not publicly disclosed, doing so would just confuse a lay person as to what the nature of the infraction was and potentially harm ones reputation due to the subjective belief of someone who does not know what they do not know. I do not believe this would serve the legal profession. Countries in the WA that have the public right to an attorney could see this as overbroad, prejudicial, and likely unconstitutional in places where the right to counsel is provided. Additionally, this is just over-disclosure, potential clients are, generally, not at all versed in the law, much less the ethical rules. They can make a mistake as to the severity and nature and/or read into the disciplinary action beyond what actually occurred (seeing the forest from the trees metaphor here.) After all, you do not want victims not trusting prosecutors or defendants not trusting their public defenders off an infraction that did not amount a severe infraction.
      
      I would suggest changing the language to sever disciplinary actions since the range is very broad (from private apology to disbarment); all are reported as "disciplinary actions (see page 88+)." Example language from Rule 10(D) and an associated comment of the ABA Model Rules: Public Nature of Sanctions. Disposition of lawyer discipline shall be public in cases of disbarment, suspension, probation, and reprimand. In all cases of public discipline by the court, the court shall issue a written opinion setting forth its justification for imposing the sanction in that particular case. Since the court has exclusive responsibility to license lawyers, it has the sole authority to remove the license. The duration of a suspension should reflect the nature and extent of the lawyer's misconduct and any mitigating or aggravating circumstances involved. See Rule 10(C)[note: 10C references the factors to consider, not the seriousness of whether notice should be provided]. Where the misconduct is so severe that even a three-year suspension is not adequate, the lawyer should be disbarred.
   2. An attorney must provide a reasonable estimate of the fees that may be incurred as part of any litigation, including any appellate work.
6. Client competence.
   
   1. An attorney is required to ensure that the client is legally competent at the time of the engagement. An attorney is required to fully explain the implications of the engagement to the client prior to engagement. If the client becomes incompetent in the course of representation, the attorney's duty is first and foremost to the client and must act in that client's best interests, protect confidentiality, and privilege except where necessary to protect the client.
   2. An attorney is required to refrain from engagements from anyone who may be noticeably deteriorating in mental capacity, unless the engagement is specifically related to that issue, such as work on wills.
   This would harm public service attorneys and criminal defense attorneys. In particular, criminal defense if mental disease or defect [legal terminology, not my own here in the US]is going to be raised at all.
   
7. Client money.
   
   1. An attorney is required to properly safeguard and account for any client money.
   2. A general retainer (for availability) isearned immediatelyearned subject to the nature of the general retainer, but a specific retainer for a case (and costs on account) must be expensed as charges are incurred.
   3. Any costs on account must be of a reasonable amount.
   4. Any unearned retainer or costs on account must be promptly returned to the client after the conclusion of an engagement.
   5. All client money must be segregated from proprietary money and held in a depository institution with satisfactory levels of deposit insurance.
8. Fees.
   
   1. Fees must be reasonable based on (i) the time, skill and labour required from the attorney and (ii) the customary rates charged in that WA state.
   2. Attorneys acting on a purely contingent fee basis must be entitled only to a reasonable share of any results obtained.
   3. Non-refundable fees are prohibited.
      [*]An attorney must decline any civil litigation (including private prosecutions, if any) if the client is unlikely to recover its full costs from such litigation.This would be unconstitutional in all Common Law countries as well as the majority of Civil Code countries. The reason why is that the law permits people to bring law suits for vindication even if there are not actual damages. For example, A woman may recover nominal damages to vindicate her right to physical autonomy, even though the she did not suffer actual harm (in the form of an injury, but perhaps an aggressive individual yanked the plate out of her hand while she was waitressing) in a case alleging battery. In such case, the woman has the right to show the world the man was an an aggressive jerk even though she's not going to hit it big. This is a singular example. There are tons of others whereby we want people to use the courts to resolve disputes by peaceful means, even if sometime that means just having the vindication of a jury (in a civil trial where a jury was demanded) or by bench (if just the judge) telling the other side they are nonetheless liable and did violate the law.
   4. The preceding excludes litigation with benefits to a client that cannot be easily quantified, such as reputation or trademark rights.
9. Insurance.
   
   1. An attorney must have adequate insurance coverage with a reputable insurer that the authority considers satisfactory at all times.
   2. Such coverage shall cover malpractice, professional discipline, and sanctions, as well as ordinary business risks such as fire and flooding at their premises.
   3. An attorney must refrain from engagement in a case if the potential loss to the client is very significantly greater than the amount of insurance coverage maintained in this clause.This crosses over into legal ethics. An attorney [in the US and before the ICJ & ICC] has a minimal duty, among a litany of others, of candor to the tribunal, has a duty to not bring frivolous claims, and has a duty to not bring under-developed claims. The most significant issue with this clause is its chilling effect [another Americanism in law] as to how this will harm people whose claim, on its face, is not substantive, but upon research would be. Likewise, this prohibition would harm those who do have a substantive case, but are only seeking vindication by law. By barring this at the time of engagement, this clause will be discouraging attorneys from representing people. The side effect includes people using the courts less to peacefully resolve disputes.
   4. The preceding sub-clause may be waived with the explicit consent of the client.
   Duty of candor and its subordinates cannot be waived, even if the client wants to waive it.
   
10. Jurisdiction.
    
    1. Each WA state is responsible for the interpretation and enforcement of this resolution, and for any disciplinary action and penalties that may be imposed.Each WA State is responsible for abiding by this resolution, and in the even of conflict between this resolution and domestic law, enforcing the resolution which provides the client the greatest amount of protections and rights.
       Each WA State retains the authority to enact and impose disciplinary actions, penalties, censure, and sanction in violation of this resolution and or local law. Nothing within this resolution is to be construed as limiting the right of a WA State to further regulate attorneys in excess of the provisions contained herein.
    2. For qualified in foreign law but admitted to practice in another WA state, that WA state has jurisdiction.

[*]Exclusions. GenSec are excluded from this resolution. They can do whatever they want.


Char count: 4,868 (of course excludes that joke at the end)

Okay, so, as someone who has a formal education in this subject in the United States, I wanted to offer some ideas. Totally feel free to add, take away, pick and choose, or disregard some or all suggestions!

Disclosure: My feedback may seem extensive and critical. It is extensive because I have a vested IRL interest in this subject and I want to ensure that you're drafting something great which lasts. Additionally, the goal of my feedback was to be critical, but in the sense of critical to be mean. It is critical because I think this is a good idea and I want to throw ideas, scenarios, and other knowledge at the terms to help me help you critically think out some of the concerns raised. Of course, you are entirely free to completely disregard any and all of this feedback. It is designed in mind to help, not to harm.

First, a clarification, the US system doesn't practice regulation under the ABA; rather, this decision ultimately rests with every individual state's supreme court (who may then decide if they want to create alternative regulatory bodies like Professional Review Boards.) Federal Courts in the US have the sole authority to admit or deny someone to their bar. Each Federal Circuit Court has its own bar as well. Accordingly, the Supreme Court of the US has its own bar.

That said, the ABA Model Rules are very much persuasive, if not outright indicative of the law, at a minimum given that most States (and Federal Courts) have ratified the ABA Model Rules into their own "State X Model Rules of Professional Conduct" (usually with some changes.)

That all said, my personal comments are in blue. Suggested changes are in red. I think this is a hard piece of legislation to craft based on the nature of what it tries to achieve.The International Court of Justice, the European Court of Human Rights as well as the European Court of Justice, the Inter-American Court of Human Rights, and the African Court of Human and Peoples Rights (Article 10) have more or less delegated this to member countries sans some fairly specific requirements on intermingling. The exception to this is the International Criminal Court which has the power to set licensure according to the Rome Statute.

Of the above, the most practical, in my opinion, at getting near enough to a professional standards and conduct guidelines for multiple States in an supranational organization is the CCBE and the ICC. The CCBE (see preamble and generally, pages 1-7) because they are doing what you are presently constructing for the WA, just irl for the EU. The ICC is good because the Rome Statute (see Articles 36-44) is setup like a treaty and may be easier to glean from than the CCBE's many policies.

Many of my comments here are designed to help move the needle towards getting where you want to be. I think this is an achievable piece of legislation, it just needs to be more deliberate in its language. For theme, I would take from the CCBE preamble. For treaty-provision-esque writing, the Rome Statute. The ABA Model Rules are okay, but the problem really is they are set around ethical standards. If you want to include ethical standards, I encourage you to incorporate parts of it because the American Law Institute and the ABA work with attorneys from the EU, UK, Canada, etc., so it is not as Americentric as one may think. That said, another great alternative for inspiration can be found at the Model Rules for the Organization of American States (OAS). The OAS, not to be construed as affiliated with the United States, (but the US is a member), does hold court, conferences, and directly supports the Inter-American Court.

[Simone Republic]

Draft 1

The World Assembly (WA),

Noting the critical role that attorneys play in everyday life;

Desiring to impose at least some standards on their business practices;

The WA hereby enacts as follows:

1. Definitions.
   
   1. Attorney means anyone admitted to practise law on behalf of a client (“client”), including advocates, barristers, solicitors, and other similar positions. This also includes any entity or firm of attorneys.
   2. Attorney excludes anyone working as an employee. It also excludes anyone elected under a political process.
   3. WA organ means any of the committees of the WA.
   4. WA state includes its sub-national divisions.
   5. Definitions in the singular include the plural and vice versa.
2. Admittance.
   
   1. No one may act as, or hold themselves out as, an attorney unless duly admitted by an authority (“authority”) of a WA state.
   2. Each WA state is entitled to admit attorneys pursuant to its own process and subject to its own qualifications requirements. This includes both attorneys qualified for the laws of that WA state, or for the laws of other states.
3. Authority.
   
   1. The authority must be a government authority with representation from individuals that are not attorneys, and not a self-regulating entity.
   2. Any disciplinary action made by the said authority must be publicly disclosed. This includes any action subsequently overturned under any appellate processes.
4. Engagement letter.
   
   1. An attorney can only be engaged to act an engagement letter has been duly executed by a client. Any variations to an engagement letter require the explicit consent of the client.
   2. The engagement letter must set out the scope of work, fees, costs on account (if any), the handling attorney(s), service standards, and other pertinent matters as required by each WA state.
5. Prior to an engagement:
   
   1. An attorney must clearly advise clients of their full name, their state of admittance, qualifications obtained, specialisation and experience, track record, as well as any disciplinary action against them at any time in their career.
   2. An attorney must provide a reasonable estimate of the fees that may be incurred as part of any litigation, including any appellate work.
6. Client competence.
   
   1. An attorney is required to ensure that the client is legally competent at the time of the engagement. An attorney is required to fully explain the implications of the engagement to the client prior to engagement.
   2. An attorney is required to refrain from engagements from anyone who may be noticeably deteriorating in mental capacity, unless the engagement is specifically related to that issue, such as work on wills.
7. Client money.
   
   1. An attorney is required to properly safeguard and account for any client money.
   2. A general retainer (for availability) is earned immediately, but a specific retainer for a case (and costs on account) must be expensed as charges are incurred.
   3. Any costs on account must be of a reasonable amount.
   4. Any unearned retainer or costs on account must be promptly returned to the client after the conclusion of an engagement.
   5. All client money must be segregated from proprietary money and held in a depository institution with satisfactory levels of deposit insurance.
8. Fees.
   
   1. Fees must be reasonable based on (i) the time, skill and labour required from the attorney and (ii) the customary rates charged in that WA state.
   2. Attorneys acting on a purely contingent fee basis must be entitled only to a reasonable share of any results obtained.
   3. Non-refundable fees are prohibited.
   4. An attorney must decline any civil litigation (including private prosecutions, if any) if the client is unlikely to recover its full costs from such litigation.
   5. The preceding excludes litigation with benefits to a client that cannot be easily quantified, such as reputation or trademark rights.
9. Insurance.
   
   1. An attorney must have adequate insurance coverage with a reputable insurer that the authority considers satisfactory at all times.
   2. Such coverage shall cover malpractice, professional discipline, and sanctions, as well as ordinary business risks such as fire and flooding at their premises.
   3. An attorney must refrain from engagement in a case if the potential loss to the client is very significantly greater than the amount of insurance coverage maintained in this clause.
   4. The preceding sub-clause may be waived with the explicit consent of the client.
10. Jurisdiction.
    
    1. Each WA state is responsible for the interpretation and enforcement of this resolution, and for any disciplinary action and penalties that may be imposed.
    2. For qualified in foreign law but admitted to practice in another WA state, that WA state has jurisdiction.

This has been comprehensively edited, taking into account the feedback from RER. It is not word-for-word because it is not clear if I can attribute RER or if he desires attribution so I re-wrote this wording.