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Rethinking How We Regulate Lawyer-Politicians, 57 Rutgers L UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 1-1-2005 The Politics of Misconduct: Rethinking How We Regulate Lawyer- Politicians, 57 Rutgers L. Rev. 839 (2005) Kevin Hopkins John Marshall Law School Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Law and Politics Commons, and the Legal Profession Commons Recommended Citation Kevin Hopkins, The Politics of Misconduct: Rethinking How We Regulate Lawyer-Politicians, 57 Rutgers L. Rev. 839 (2005). https://repository.law.uic.edu/facpubs/108 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. RUTGERS LAW REVIEW VOLUME 57 Spring 2005 NUMBER 3 THE POLITICS OF MISCONDUCT: RETHINKING How WE REGULATE LAWYER-POLITICIANS Kevin Hopkins* INTRODU CTION .................................................................................... 840 I. THE RISE AND FALL OF THE LAWYER-STATESMAN .......................... 849 A. The Lawyer in Colonial America ............................................ 850 B. The Decline of the Lawyer-Statesman.................................... 855 II. THE REGULATION OF PRACTICING LAWYERS .................................. 859 A. The Powers of the Court and Bar ........................................... 861 B. The Exercise of Self-Regulation .............................................. 865 III. THE REGULATION OF NON-PRACTICING LAWYERS, LAWYER- POLITICIANS AND DUAL PRACTITIONERS ............................................. 869 A. Lawyer-Politiciansand the High Bar for Public Service ...... 871 B. Regulating Dual Practitioners:The Lawyer-Accountant D ilem m a .................................................................................. 875 IV. LEGAL REALISM AND LAWYER-POLITICIANS ................................. 879 A. Legal Realism and the Model Rules ....................................... 879 Associate Professor of Law, The John Marshall Law School. I acknowledge the helpful and constructive comments of the members of the faculty at Rutgers University School of Law-Camden (Spring 2001) where the paper was presented as a work-in-progress and the participants at the Second International Conference on Creative Problem Solving held at California Western School of Law (Spring 2004). In addition to the participants of these meetings, I am grateful to Sheila Foster, Paul Butler, Rand Rosenblatt, Charles Geyh, Walter Kendall, Julie Spanbauer, Samuel Olken, Doris Long, Philip Harvey, Elizabeth Hillman, Steve Kropp, and Aremona Bennett who diligently and patiently reviewed and commented on earlier drafts of this article. Lastly, I am thankful for the excellent research assistance provided by Joseph Agnello, William Rinehart (Wisconsin) and the John Marshall Law School librarians. HeinOnline -- 57 Rutgers L. Rev. 839 2004-2005 RUTGERS LAW REVIEW [Vol. 57:3 B. Constitutional and Political ConsiderationsRequiring a Departure from the Status Quo When Regulating Federal Lawyer-Politicians.................................................................. 884 1. Disciplining Lawyer-Politicians Under the Model Rules May Upset The Proper Balance of Powers Required by F ederalism ........................................................................ 884 (a) Presidential Pardons ................................................. 888 (b) Foreign Policy and Presidential War Powers .......... 894 (c) Supreme Court Discipline ......................................... 901 2. Disciplining Lawyer-Politicians Under the Model Rules May Disrupt Principles of Federal-State Comity ........... 914 (a) Public Official Immunity .......................................... 917 (b) Scope of Im m unity .................................................... 919 (i) Executive Im m unity ............................................ 921 (ii) Judicial Im munity .............................................. 922 (iii) Legislative Im m unity ........................................ 924 V. A FUNCTIONAL APPROACH TO REGULATING LAWYER-POLITICIANS 925 A. Questionable or Improper Actions Committed Within the Functions of Office (Zone I)..................................................... 930 B. Criminal Conduct (Zone II) .................................................... 933 C. Improper Conduct Committed Within JudicialProceedings (Zone III).................................................................................. 936 D. Questionable or Improper Conduct Committed While Functioning in Lawyer Roles (Zone IV) ................................. 938 C ON CLU SION ........................................................................................ 942 The Model Rules are premised on the fallacy of the monolithic attorney-client relationship .... [Elach rule purports to address an issue for all walks of lawyer, regardless of the nature of their practice [or non-practice] or of the clients they represent .... Lawyers, however, are not all the same., INTRODUCTION During the last century, the legal profession has experienced a drastic change in the roles and functions of its members. Its modern 1. Steven C. Krane, Ethics 2000. What Might Have Been, 19 N. ILL. U. L. REV. 323, 329 (1999) (discussing the American Bar Association's formation of "Ethics 2000," a Commission established to undertake the first comprehensive review of the MODEL RULES OF PROFESSIONAL CONDUCT ANNOTATED (2003) [hereinafter MODEL RULES] and criticizing the Commission in taking an "if it ain't broke, don't fix it" approach to reviewing the effectiveness of the Model Rules); see also ABA Starts "Ethics 2000" Project for Sweeping Review of Rules, ABA/BNA LAW. MAN. ON PROF. CONDUCT: CURRENT REP. 140 (1997) (discussing the role of the Ethics 2000 project as the undertaking of an in-depth review and assessment of the ABA ethics rules during the end of the second millennium). HeinOnline -- 57 Rutgers L. Rev. 840 2004-2005 20051 THE POLITICS OF MISCONDUCT composition no longer consists solely of practicing lawyers, judges, and law professors but has steadfastly transformed to include an increasingly large number of lawyers who function in positions that fall outside the traditional practice of law. Today, it is commonplace to find practicing lawyers who have become either disillusioned with the routine nature of their practices or for countless other reasons, decide against practicing law upon passing the bar examination.2 There are numerous explanations for making this choice. Many lawyers leave the profession to seek non-legal employment in private or public sector jobs.3 For instance, a growing trend towards the legalization of many industries and professions has resulted in the creation of complex federal and state regulations that often require legal training and expertise to comply with and follow. Other lawyers remain in the practice of law but pursue additional professional degrees in order to obtain the flexibility to participate in dual practices.4 A growing number of lawyers leave the profession each year to enter into public service as public officials elected through the political process or appointed by federal or state executives.5 2. See AT THE BREAKING POINT (A.B.A. ed., Airlie House 1991) (discussing an ABA study on career satisfaction and dissatisfaction) (noting several reasons for lawyer discontent with the practice of law such as long workdays, the emphasis on billable hours, the intensely competitive partnership struggle, disgruntled clients, and the strain of constantly enacting an adversarial role); see also Kevin Hopkins, Law Firms, Technology, and the Double-Billing Dilemma, 12 GEO. J.LEGAL ETHICS 95, 98- 101 (1998) (discussing double-billing and the pressures placed on new associates in pursuing partnerships in law firms). 3. Lawyer dissatisfaction with the practice of law has prompted numerous publications by legal career counselors and programs sponsored by local bar associations to discuss non-legal career options. See, e.g., DEBORAH ARRON, WHAT CAN You Do WITH A LAW DEGREE? A LAWYERS' GUIDE TO CAREER ALTERNATIVES INSIDE, OUTSIDE, AND AROUND THE LAW (4th ed. 1999); HINDI GREENBERG, THE LAWYER'S CAREER CHANGE HANDBOOK: MORE THAN 300 THINGS YOU CAN DO WITH A LAW DEGREE (1998); see also Ilana DeBare, When the Boss Has Wrong Image of the Workers, S.F. CHRON., Dec. 1, 1997, at Bi (noting that other positions include legal head-hunting firms and the business world); John Murawski, D.C. Bar Panels on Career Change Pack 'Em In, LEGAL TIMES, Feb. 22, 1993, at 1 (noting that many lawyers seeking to change careers often consider positions in legal publishing and university administration). 4. For discussions of the ABA's handling of dual practices, see ABA Comm. on Ethics and Prof l Responsibility, Formal Op. 328 (June 1972) (lawyer-accountant); ABA Comm. on Ethics and Profl Responsibility, Informal Op. 83-1497 (lawyer-doctor); ABA Comm. on Ethics and Profl Responsibility, Informal Op. 1192 (1971) (lawyer- publisher); and ABA Comm. on Ethics and Profl Responsibility, Informal Op. 1248 (1972) (lawyer-psychologist). 5. As used in this Article, the term 'lawyer-politician" is defined as a lawyer who has chosen the career path of public official as his or her primary occupation. As defined by the Supreme Court, a public official is one who is "among the hierarchy of government employees who have, or appear
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