FJC Survey on Attorney Ethics Finds Most Judges Satisfied with Rules
Recognizing that this raises additional issues for bankruptcy courts, the Standing Committee, in conjunction with the Advisory Committee on Bankruptcy Rules, asked the Federal Judicial Center (FJC) to conduct a study on attorney conduct in the bankruptcy courts. In December 1998, the FJC sent a questionnaire to all bankruptcy judges, seeking their views on the adequacy of attorney conduct standards. The questionnaire also asked whether all bankruptcy courts should have uniform standards. The FJC recently issued a final report on the study.
Sources of Current Standards
The response rate for the survey was nearly 80 percent. The survey results show that 47 (61 percent) of the 77 responding chief bankruptcy judges said their courts follow the local rules of attorney conduct of their respective federal district courts. Most bankruptcy courts do not have their own independently developed local rules governing attorney conduct. Thus, any proposed uniformity or changes in district court attorney conduct rules could carry over to most bankruptcy courts, even if the proposed changes are not directly aimed at or applied to bankruptcy courts. Sixteen percent of chief judge respondents indicated their courts have a local bankruptcy rule that adopts standards other than those in the district court's local rules, with about half of these adopting standards such as the ABA Model Rules of Professional Conduct and about half developing their own standards. Twelve percent said they have no local district or bankruptcy rules governing attorney conduct.
Attorney Conduct Issues
Looking at all responding bankruptcy judges (chiefs and non-chiefs), the study results show that only a very small set of attorney conduct issues arise with notable frequency in bankruptcy courts. Responding judges were confronted with attorney conduct issues involving Bankruptcy Code or national Bankruptcy Rule provisions more often than issues involving other conduct standards. Also prevalent were conflict-of-interest issues analogous to those covered by ABA Model Rules 1.7 through 1.11, attorneys' fees issues analogous to ABA Model Rule 1.5, and matters involving candor toward a tribunal. Judges reported the following types of issues as occurring one or more times within the prior two years (the percentage of respondents who reported them is listed after each):
- representation of an adverse interest or conflicts of interest involving 11 U.S.C. §327 or §1103 (80 percent);
- other issues regarding conflicts of interest (70 percent);
- disclosure standards regarding employment of attorneys (71 percent);
- attorneys' fees (62 percent);
- candor toward a tribunal (57 percent);
- truthfulness in statements to others (45 percent);
- lawyer as a witness (37 percent);
- communication with represented person (30 percent);
- safekeeping of client property (27 percent); and
- confidentiality (19 percent).
Satisfaction with Current Standards
More than 75 percent of all respondents were satisfied with the standards they use to resolve attorney conduct issues. Nearly 90 percent did not find any problematic inconsistencies between their district's use of Bankruptcy Code/Rule standards and the standards that come from sources other than the Code and Rules. About 75 percent had never encountered attorney conduct issues that arose only in bankruptcy courts and were not covered adequately by existing standards.
Sixty-two percent of respondents reported experiencing problems with the adequacy of disclosure by attorneys seeking employment in bankruptcy cases. However, 75 percent said these problems were not caused by inadequate requirements for disclosure in Bankruptcy Rule 2014.
Views on Uniform Standards
Slightly more than half of responding judges believed that attorney conduct in bankruptcy courts should be governed by uniform standards. Twenty-seven percent said there should not be uniform standards, while 21 percent answered, "can't say." Assuming uniform standards were adopted by all district and bankruptcy courts, 52 percent of respondents believed the standards applied in bankruptcy courts should be the same as those applied in district courts, 28 percent said they should not be, and 20 percent said, "can't say."
These issues were also explored with respect to nine types of attorney conduct issues. The majority of respondents (ranging from 60 to 64 percent) indicated that there should be a national uniform standard in the bankruptcy courts for each of these nine types of conduct. Relatively high percentages who said there should be a national uniform standard also said the standard should be the same in bankruptcy and district courts for the following eight types of conduct:
- truthfulness in statements to others (97 percent of respondents in favor of a national standard on this issue favored the same rule in district and bankruptcy courts);
- candor toward the tribunal (95 percent);
- communications with person represented by counsel (94 percent);
- lawyer as witness (92 percent);
- confidentiality of information (84 percent);
- conflict of interest concerning prohibited transactions (82 percent);
- imputed disqualification (80 percent); and
- conflict of interest concerning former client (77 percent).
However, for the ninth category of conduct (conflicts of interest analogous to ABA Model Rule 1.7), a relatively lower percentage of respondents (58 percent) indicated that a general rule should be the same in bankruptcy and district courts. If a national uniform standard is adopted, the preference of respondents for each of the nine types of conduct was the corresponding ABA Model Rule.
Questionnaire responses and text comments provided by the judges indicated that bankruptcy judges are likely to look for guidance on attorney conduct issues in numerous places, including local and national bankruptcy rules, district court local rules, the Bankruptcy Code and case law. This is especially likely if a set of core national attorney conduct rules were drafted for use in district courts and carried over to bankruptcy courts without taking into consideration the separate types of attorney conduct issues that face bankruptcy courts.
Current and Future Activity
Federal attorney ethics issues have recently been the subject of much discussion. For example, the ABA's Ethics 2000 Commission is currently evaluating the need for amendments to the Model Rules of Professional Conduct. Also, the Standing Committee has formed a Special Ad Hoc Committee on Rules Governing Attorney Conduct. The Ad Hoc Committee met in May and September 1999 to discuss non-uniformity, including some discussion on whether to exclude bankruptcy courts from any uniform standards the Standing Committee might adopt. The Ad Hoc Committee is planning to offer recommendations to the Standing Committee at its January meeting.