JURIST Guest Columnist Kushtrim Tolaj is an LL.M. Candidate at the University of Pittsburgh School of Law, and has served as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina, Kosovo. Here, Tolaj compares the ways in which lawyers are regulated in the US and Kosovo...
eremy Bentham, a prominent English jurist and philosopher during the eighteenth and nineteenth centuries, described lawyers as "the only persons in whom ignorance of the law is not punished." While this may have been true many years ago, today, lawyers' misconduct and illegal activity is prohibited and punished by law in most countries in the world. Lawyers play a vital role in the legal systems of their respective countries. They serve citizens and governments in various ways by offering legal assistance and advice.The most distinctive aspect of lawyers, however, is their relationship with their clients. This relationship is established and based upon certain rules and principles, thus ensuring the professional and ethical conduct of lawyers.
In the US, lawyers are subject to regulation from the judicial branch, self-regulation by the organized bar and private malpractice regulations. To comparatively understand the rules of ethics in the US and Kosovo, one must look to their respective codes. In the US, the established bar's code of ethics is the American Bar Association's (ABA) Model Rules of Professional Conduct and, in Kosovo, it is the Kosovo Chamber of Advocates' (KCA) Code of Professional Ethics for Lawyers [PDF]. While the KCA's ethics code is mandatory for all practicing lawyers in Kosovo, the ABA's model rules are not mandatory unless adopted by individual states. It should be noted, however, that the KCA's ethics code was largely drafted based on the ABA's Model Rules of Professional Conduct.
In the US, courts can hold a lawyer in contempt or can discipline a lawyer for misconduct. On the other hand, Article 42 of the KCA's ethics code states that, "[a] lawyer, during law practice, is obliged to always maintain court authority, of administrative bodies and other authorities to which he/she offers legal assistance and to express the proper respect." Similarly, Article 47 prohibits a lawyer from making "insulting declarations before the court or any underestimating opinions about court decisions or without reason, ask for exclusion of judges, accuse them etc." Furthermore, judges are vested with the power of warning, fining and/or removing lawyers from proceedings if they fail to obey court orders.
Nevertheless, in the US, the increase in transactional lawyers, who rarely see the interior of a courtroom, has led to a questioning of judicial control over the profession. On the other hand, in Kosovo, most licensed lawyers practice individually, with the exception of a small number of lawyers who practice in recently established law firms. As such, there does not appear to be many obstacles preventing the courts from fining or disciplining licensed lawyers. However, difficulty arises with respect to unlicensed practitioners, who hold law degrees, but who have not been formally admitted to the profession, as they provide legal advice outside court facilities.
In the US, lawyers also self-regulate through the ABA. The ABA has had a strong role in determining the ethical standards of the profession. It promulgated its Canons of Professional Ethics [PDF] in 1908, which was later adopted by many state bar associations. Ethics committees also established advisory canons, and several courts eventually began enforcing them as if they were rules of law. The canons remained in effect until 1970, when the ABA established the Model Code of Professional Responsibility [PDF]. Many courts cited this code as evidence of the law even in states where it had not been officially adopted. In 1983, the ABA replaced the code with the Model Rules of Professional Conduct. Although the ABA revised the model rules in 2002, it kept the format of the 1983 rules, but clarified some language and dealt with new issues that were only dimly foreseen in 1983. Because the ABA is a private organization and lacks the power to impose its rules, the code and rules are merely suggestions, unless and until a given jurisdiction enacts them as law. Nonetheless, they have been widely adopted by states as law.
The Constitution of the Republic of Kosovo [PDF], adopted on June 15, 2008, defines the bar as an independent profession that provides services "in the manner provided by law." The Law on the Bar [PDF], enacted in 2009, has replaced the old 1979 Law on Advocacy, thus setting forth rules that are compatible with international standards. Article 20(1) obliges Kosovar lawyers to "affiliate with the Kosovo Chamber of Advocates," while Article 20(3) mandates the KCA to "regulate and control law practice in Kosovo."
Under the new law, Kosovar lawyers "are subject to reasonable restrictions against disseminating confidential information, accepting representations that constitute conflicts of interest, and improperly discriminating against clients." Similarly, they are required by Article 14(1) "to participate in the free of charge system of the provision of legal assistance, financed in terms of public means." Moreover, Kosovar lawyers are also subject to the KCA's code of ethics, which sets forth the principles of the profession's ethics and provides for specific duties of lawyers.
In the US, malpractice suits against lawyers were once a rarity. That is no longer so. Nonetheless, malpractice suits in Kosovo are still infrequent. Most complaints against lawyers are brought to the KCA's disciplinary bodies for disciplinary actions, pursuant to Articles 97-110 of the KCA's Model Code of Professional Responsibility. Most sanctions to date have consisted of reprimands, and most cases filed have not involved allegations of serious misconduct under the statute. In the US, the most successful malpractice cases have been for especially egregious conduct, such as the deliberate and willful neglect of a client matter to the extreme detriment of the client or of gross incompetence.
Some of the common activities regulated by both the ABA and the KCA are: the principle of lawyer-client confidentiality, the duty of competent representation, the duty to charge reasonable fees, the prohibition of conflicts of interest, the duty to follow court rules and orders, the duty to engage in pro-bono service and the prohibition of client solicitation and advertising. Confidentiality, as one of the most important principles governing the relations between lawyers and clients, is treated with special care by both the ABA and the KCA's codes of ethics. There are three exceptions to the strict rule of confidentiality in the Model Rules of Professional Conduct. The first two exceptions are if an attorney believes the client is intending to commit a crime or fraud that is likely to result in imminent death or substantial bodily harm, property or financial interests. Similarly, a Kosovar lawyer may reveal information when disclosure is necessary to prevent death or substantial bodily harm. The third exception under the Model Rules of Professional Conduct is that, "an attorney may reveal client confidences where it is necessary to prove a claim or defense in a controversy between the lawyer and the client." The same rule is incorporated in the KCA's code of ethics, as a lawyer may disclose information to defend him or herself "against charges filed by the client against the lawyer. In addition to these exceptions, the KCA's Code of Professional Ethics for Lawyers also allows lawyers to reveal confidential information for the protection of the state's interests, to show that an ethical violation did not occur or if the client wishes the lawyer to do so.
While ethics rules seem to be generally well enforced in the US, this is not the case in Kosovo. In addition to the rules of ethics in place, extensive and continuous work is necessary to improve the implementation of these rules in practice. The KCA needs to focus its efforts on increasing awareness and seeing that programs on the proper application of the KCA's code of ethics, such as the mandatory continuing legal education program, which requires 25 percent of earned credits to be in professional legal ethics, are enforced. If the KCA managed to successfully impose such a requirement, there is hope that unethical behaviors would substantially decrease through greater awareness and understanding. However, as a new rule adopted in 2010, the proper implementation of mandatory continuing legal education remains to be seen in the future. Likewise, it is of paramount importance that the KCA increase its efforts in reaching out to all its members, and not only those in big urban areas, but those in small towns, where practicing lawyers have less access to the association's services. This will not only advance and progress the enforcement of ethics rules, but it will also educate the public with regard to their rights in relation to attorneys.
Kushtrim Tolaj received his bachelor's of law degree from the University of Prishtina in Kosovo, in 2009. Tolaj has worked as a project coordinator for Iniciativa Vizionare Rinore, a Kosovar NGO, as a coordinator of legal education reform and as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina. Tolaj has also worked as a Customs Agent for the Republic of Kosovo.
Suggested citation: Kushtrim Tolaj, Regulating the Legal Profession in the US and Kosovo, JURIST - Dateline, Apr. 18, 2012, http://jurist.org/dateline/2012/04/kushtrim-tolaj-legal-profession.php.
This article was prepared for publication by Michael Micsky, an assistant editor of JURIST's student commentary service. Please direct any questions or comments to him at firstname.lastname@example.org.