Overview of Alaska Rules of Professional Conduct
An essential component of the legal profession, along with legal education and licensing, is a code of ethical guidelines to govern the behavior of attorneys and other legal professionals. For the Alaska Bar Association and the Alaska Supreme Court, this code of ethics consists of the Rules of Professional Conduct for the State of Alaska. The Board of Governors of the Alaska Bar Association, which is elected by the members of the State Bar, is responsible for interpreting these rules and formulating an effective Code of Professional Responsibility.
The American Bar Association (ABA), in coordination with the National Conference of Commissioners on Uniform State Laws (NCCUSL) , originally drafted the Model Code of Professional Responsibility (originally adopted by the ABA in 1969). This document is considered the basis for a utopian system of ethical conduct for attorneys and other legal professionals. Many states enacted rules based on the Model Code, including Alaska, which adopted these rules in 1970. The Model Code was in effect in Alaska until it was largely replaced in 1983 when the ABA adopted the Model Rules of Professional Conduct.
A principal objective of the Model Rules is to enable bar or disciplinary committees to have an easily understandable set of rules upon which to base decisions regarding ethically improper behavior. Model rule 8.6 specifically addresses the issue of prosecuting attorneys and highly emphasizes the duty that they have to maintain the integrity of the criminal justice system.
Essential Duties and Obligations
The Alaska Professional Conduct Rules are designed to provide a framework to demarcate the boundaries of acceptable behavior by members of the bar. They codify ethical standards, and set out fundamental duties and responsibilities to be followed in the practice of law. The Rules address a broad range of issues and spell out the obligations of attorneys as to the representation of others. They also establish sanctions and disciplinary measures for breaches of the professional conduct guidelines.
Types of Duties and Responsibilities
Many of the statutes and regulations governing attorneys remain couched in broad language and ultimately open to interpretation, although principles of law do develop as to their meaning over time. In addition to statutes and case law, the Alaska Bar Association provides ethics opinions and advisory opinions which give guidance as to interpretations of the Rules of Professional Conduct.
Key Duties
One of the most important duties that all attorneys in Alaska have is to their clients. Under the Rules, there are obligations to:
The duty of candor to the tribunal means among other things that attorneys cannot make false statements to a judge or jury and must correct any prior false statements that they make. Competence refers to becoming familiar with the law and the facts of the case, applicable law, relevant jurisprudence and properly preparing for representation. Confidentiality also means protecting the confidentiality of any information that is received by counsel during the provision of legal services.
Another significant duty is to opposing parties and counsel, known as candor to the opposing party, which means that attorneys must not knowingly make false statements of law or facts or fail to disclose controlling legal authority.
Attorneys also have a duty to the legal system, which means that they must not use means that have no purpose other than to embarrass or burden a third party or to make a frivolous claim. The concept of fairness and seeking justice is embodied in a duty to the legal system as well.
Duty of Confidentiality and Attorney-Client Privilege
Alaska’s Rules of Professional Conduct also outline the obligation to respect the confidentiality of information relating to the representation, subject only to specific exceptions set forth in the rules. Such confidentiality not only protects the client, but also the attorney. Lawyers are not permitted to reveal information related to the representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the information falls into one of the applicable exceptions set forth in Alaska’s Rule 1.6. In particular, the rule prohibits disclosure for the purpose of securing legal advice about the lawyer’s compliance with the rules. See Alaska R. Prof’l Conduct 1.6(a)(5). The attorney may have a common interest agreement in order to protect potentially discoverable communications among themselves.
The attorney-client privilege recognizes a client’s right to refuse or disclose confidential communications made for the purpose of providing legal advice to the client. See Alaska R.Evid. 502(b); Alaska R. Prof’l Conduct 1.6(a). The primary purpose of the attorney-client privilege is the promotion of the broader interest of the administration of justice by encouraging the full and frank communication between attorneys and clients. See State v. Ramey, 1980-NMSC-148, ¶ 12 ("We will not, and the Legislature should not, subvert the attorney-client relationship and the effect of the Criminal Code by engrafting our own version of the attorney-client privilege upon the statutes already enacted.") (Citation omitted); People v. Yarris, 958 P.2d 69, 81 (Colo. 1998) (the attorney-client privilege is in accord with the "underlying public policy that encourages attorneys and clients to communicate openly without fear that the privileged communications will be used against them."); In re Grand Jury Subpoena Issued to Dennis Friedman, 638 F.2d 793, 796 (3d Cir. 1981) (discussing the purpose of the attorney-client privilege). It is critical that clients provide truthful and accurate information to their attorneys in order for the trial attorneys to provide competent and effective assistance of counsel.
Conflicts of Interest with Former Client
The Alaska Rules of Professional Conduct, similar to the ABA Model Rules, provide comprehensive coverage of conflict of interests including concurrent and successive representation. Conflicts of interest can arise on many occasions but certainly when a firm represents one client against a former client. The Alaska bar examiners have written an exam question about this situation dating back to 1967 although the question style and details have changed significantly since then. The former client is generally known as a "current" client when it is common knowledge that the firm represented the former client and is now representing an adverse party.
The 2009 Ethics Advisory Group Memo on Suing Former Clients discusses this topic: "Lawyers are prohibited from representing a client against a former client if the matter involved was substantially related to the matter that the lawyer performed for the former client." As stated directly in the Rules: Informed Consent By a Person Represented by the Lawyer. 1.7(c)(1) A lawyer who has represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client unless each affected client gives informed consent, in writing or on the record.
In Alaska, confidentiality issues may have some effect on the Rules of Professional Conduct as the concept of confidentiality is broader in the context of the attorney-client privilege than in the confidentiality provisions of the Rules. But that is not a huge factor—if you cannot represent the client in the first place, you won’t need to worry about confidentiality issues.
If you attempt to represent a current client against a former client, you are subject to censure, suspension, disbarment, or other disciplinary measures.
Enforcement and Disciplinary Procedures
While most lawyers will never face the possibility of discipline, it is important to understand there is a potential for disciplinary action that exists if you violate the Alaska Rules of Professional Conduct. The disciplinary process outlined in the rules is designed to ensure that lawyers adhere to professional standards, and includes a procedure for addressing violations. This involves investigations into complaints of unethical conduct, resulting either in dismissal or imposing disciplinary action.
Disciplinary actions are enforced by the Alaska Bar Association or through civil proceedings. There are three types of disciplinary actions in Alaska: Censure is a sanction where the lawyer receives an official reprimanding. Disbarment is the most serious form of discipline , where a lawyer is basically stripped of his or her license to practice law. Suspension is an intermediate sanction, where a lawyer may be temporarily removed from citing with conditions applied to the reinstatement of the license.
Lawyers who face disciplinary actions will generally be provided the opportunity to be heard before a hearing panel. Depending on the determination of the hearing panel, a lawyer may have the option to appeal.
Disciplinary matters where a lawyer is investigated and a determination is made that there has been no unethical conduct are confidential. However, where a lawyer is suspended or disbarred, that information becomes public. So it is wise to comply with ethical practices as closely as possible.
Continuing Legal Education Obligations
Alaska, like all states, has adopted requirements for continuing education. Every Alaskan lawyer is required to meet the requirements of Rule of Professional Conduct 3.5 and its application according to Regulation 12. Every Alaska licensed lawyer must earn: 1) a minimum of 11 competency credits that relate to the practice of law in Alaska each reporting year; 2) a minimum of 2 ethics credits each reporting year; and 3) 2 additional credits of CLE.
These requirements are in line with other states and take into account the special nature of the legal profession in Alaska. The Alaska Bar Association has a number of offerings throughout the year that work toward providing relevant and current material for attorneys in Alaska seeking credit. The office of Professional Responsibility at the Alaska Bar deals with reporting and compliance with these regulations.
Alaska Rules Compared with Other States
Alaska’s Rules of Professional Conduct are similar to those of other states. All states have a rule governing professional conduct, and most of them mirror the Model Rules that were adopted by the American Bar Association in 1983, and revised in 2002. While most states did track the Model Rules, Alaska initially took exception to that approach and adopted its own rules. However, over the years it has started to align itself with the Model Rules, so while the style and numbering may be different, the basic ethical standards are already in place with Alaska’s current Rules of Professional Conduct. It is anticipated that when the rules are again revisited, as they must be every five years, the remaining inconsistencies will be reconciled with the Model Rules. When looking at which states most closely mirror the Alaska RPCs, you can begin to see a pattern . Alaska, Minnesota, South Dakota and Utah are uniform from the outset. They all have dormant rules, meaning they are kept on the books even though they are not strictly enforced. Those rules allow attorneys to avoid minor compliance issues by establishing that a fee is not earned until the client has paid. They do this by having the client sign a retainer agreement, and then they do not collect or deposit the funds until the later agreed upon date. Wyoming, North Dakota and West Virginia are slightly different from the four states above in that they are in compliance with the latest revisions of the Model Rules, but lack comprehensive retention and IOLTA rules. This, however, is a very narrow purview. Although Alaska does not currently mirror the Model Rules it is moving towards that goal.