Model Rule 5.7 and Lawyers in Government Jobs - How Can They Ever Be 'Non-Lawyers'?

Abstract

This article focuses on the application of the Rules of Professional Conduct to licensed attorneys who serve in non-lawyer jobs in government. There is a fair amount of literature about members of the bar who serve as staff counsel in legislatures or executive agencies. There is also literature on Rule 5.7 of the ABA Model Rules of Professional Conduct (“Responsibilities Regarding Law-related Services”) in the context of practicing lawyers who participate in ancillary “non-lawyering” business activities. Model Rule 5.7 deals with “services that might reasonably be performed” or “are related to the provision of legal services” but which are permitted to be performed by lay persons. But little has been written about the ethical obligations of licensed lawyers who undertake policy or management roles in government. Model Rule 5.7 was written principally for a different type of situation: where a lawyer is both “lawyering” and carrying on a related business enterprise. But 2002 amendments to Rule 5.7 expanded its reach. As currently written, Model Rule 5.7 provides guidance - probably mandatory guidance - for lawyers in public sector jobs that on first glance appears to involve little or no “legal work.” Unfortunately, the rule is flawed because it does not provide adequate direction on what constitutes “legal services” versus “law-related services.” This article suggests how best to conceptualize “legal services,” in contrast with “law-related services,” in the context of work performed by lawyers in government management and staff positions. It proposes that for a government employee with a bar card who serves in a non-lawyer job and wishes to avoid the full panoply of the RPCs, the best approach is to determine whether the position needs to be treated as one providing “law-related services” under MR 5.7. If so, then the non-lawyer lawyer should follow the formal steps under that rule to notify the recipients of services, and certain others as well, that the lawyer is not providing legal services and that the protections of the rules of professional conduct will not apply.

Keywords: professional responsibility, legal ethics, lawyers, government employees, legal profession, J.D. Advantage, law-related services, government lawyers