Professional Responsibility And Ethics

• Tweet

• Tweet

Remember our recent, brief discussion about falsely comparing standard baseball business practices with ethics [Ethics Or Merely Business Of Baseball?]? Yeah…you probably skipped over that one. Well today, I would like to focus on one instance where ethics may actually be enforced in the sports business world.

Believe it or not, attorneys now make up more than 50% of all sports agents that have an active client list. Maybe you want to reconsider law school (warning: I can personally attest for the fact that law school is a pain, and I am not even done with my first semester). With an influx of attorneys into the realm of sports agentry, what exactly are the consequences? For one, athletes will expect more out of their agents. If an athlete is looking for an agent, he may go with a licensed attorney over the no-longer-standard Joe Shmo, with an undergraduate degree in Marketing. But there is another side of the coin. If you decide to get a law degree and pass the bar, you may have more restrictions than Mr. Marketing degree. You may be bound by the Model Rules of Professional Conduct.

The Model Rules of Professional Conduct (MRPC) are a bunch of rules that the ABA (American Bar Association) put together in order to mandate what is permissible and non-permissible for a lawyer to do. The latest update to the MRPC was announced in 2007. The last thing a sports agent wants to be bound by is the MRPC. The good thing is that there definitely is a possibility that an agent can argue that she is operating outside of the realm of “attorney”. But all she has to do is offer some legal advice, and she may be bound by the ethical requirements promulgated by the MRPC.

Let’s say that you are this agent who runs a semi-large agency with about fifty clients. One of your clients just happens to “make it rain“, he gets into a scuffle with a bouncer, and gets charged with the intentional tort of battery (purely hypothetical). The client comes to you asking what he should do in order to remedy the situation. You are offering him legal advice, as slight as it may be. Welcome yourself to the world bound by the MRPC.

Assume that as a member of the bar of whatever state that might be, you are bound by the MRPC. But then you are bound by some pretty restrictive measures. Take for instance, Rule 1.7, Conflict of Interest: Current Clients. Here is the rule:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;(2) the representation is not prohibited by law;(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

So put yourself in an agent’s shoes (or if you are an agent, don’t take your shoes off). You represent 3 athletes on the same team and these athletes are playing a sport other than baseball (the league is bound by a salary cap). A conflict of interest can clearly be established by someone bringing suit. By getting one client a certain amount of money, you are restricting the amount that the team has for your other players. The team may even have to cut those other players based on the contract you sign for said player.

But look to part B. There is a way to get around this conflict. Of course, you believe (reasonably!) that you will be able to provide competent and diligent representation to each client. What if you represent a coach and an athlete on the same team? It may get a little more unreasonable to believe that you can represent both entities to your full ability.

Look at the last word in part B(3). See the word and? That means that you must also have informed consent, confirmed in writing from all affected clients. When is the last time you ever heard a sports agent getting such a form in writing? How about even verbally affording conflicted clients about their situation?

If you are bound by the MRPC and you violate any rules (there are many others that may be applicable for sports agents), you run the risk of being disciplined by the bar. Discipline may include:

o Disbarment – not permanent in most states. Re-apply usually in 5 yrs.

o Suspension – ABA recommends between 6 months & 3 yrs.

o Public reprimand – aka censure or public censure.

o Private reprimand – aka admonition. When lawyer is negligent, small injury to others, and small likelihood of repetition.

o Probation – can be stand-alone sanction, with #2-4, or as a condition of reinstatement.

I intend to go through the entire MRPC and disect how each rule may be applied to sports agents that are also attorneys. Not every rule may be applied, but you would be surprised by how many of them are applicable to the profession. This post was not written to scare you or deter you from becoming a lawyer. Instead, you should be aware that consequences come along with practicing as a professional. Clients will be more likely to sign with you over someone without a law degree. They put more trust in you because of your professional status. The MRPC makes sure that you do not violate this trust by acting in a non-professional manner.

-Darren Heitner

Related posts:

1. Ethics Or Merely Business Of Baseball?
2. Analysis of “Maybe Jerry Maguire Should Have Stuck With Law School: How The Sports Agent Responsibility and Trust Act Implements Lawyer-Like Rules For Sports Agents”
3. Ron Perrick Wants To Take Your Money And Sue You