Professional Responsibility
Anastopoulo
Fall 2015
I. Introduction to Professional Responsibility: Sources of Professional Obligations (pp. 1-22)
Aspects of attys’ role that create ethical tensions (pp. 1-12): atty as a fiduciary, as an Officer of the Court, Atty’s own interests.
Atty as a Fiduciary
Contrasted to arm’s length business relationship in which ea/ party protects own interests.
Fiduciaries have special obligations to care for and to protect the interests of their beneficiaries or clients.
Ex.s of other fiduciaries:
dr/patient
priest/penitent
trustee/beneficiary
fiduciary relationship as matter of fact
close personal relationship; one puts trust and confidence in the other and the other accepts a duty—relation of dependence
Fundamental fiduciary duties to clients:
(1) Competence, Rule 1.1: goes beyond knowledge of the law to encompass skills, preparation, and diligence
See also Rule 1.3: duty to handle matter w/ reasonable diligence and promptness.
Attys who violate duty of competence not only commit an ethical transgression but also can be held liable to clients for damages.
Atty acts incompetent, can be sued for malpractice
Communication, Rule 1.4: an atty shall promptly inform the client of any decision or circumstance which requires client’s informed consent as defined in Rule 1.0(e).
Fairness, Rule 1.5 and 1.8(a)
Rule 1.5 Fees: reasonable fees
Rule 1.8(a)
Rule 1.8(f)
(3) Confidentiality of information, Rule 1.6
“A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent or implied authorized to carry out representation or exception applies under (b).”
McClure v. Thompson, p. 130
No informed consent
(2) Loyalty
Rule 1.7
Rule 1.9
Rule 1.15: safekeeping of client property, detailed record
Aspects of atty’s role
Atty as an Officer of the Court functioning in an adversarial system
Meaning of adversarial system of justice:
Neutral decision maker (Judge and Jury)
Competent advocates zealously representing their clients
Fair rules of procedure designed to allow presentation of relevant evidence to decision maker
Allow each side to present their case
Duties are to court and adversaries even when may harm client’s interest
Ex:
Prohibition on making frivolous claims or defenses, Rule 3.1
Duty to reveal client perjury, see Rule 3.3(a)(3)
Lawyer knows client testified falsely, lawyer has duty to disclose
Prohibition on communication w/ represented adverse parties, Rule 4.2
Unless consent of other atty or authorized by law or the court
Rationale:
Excessive zeal on behalf of client can undermine rather than foster adversarial system.
Societal interest or interests of third parties in some instances outweighs client interest, particularly when client interest is illegitimate.
Rule 8.4: Misconduct
Resolving tensions in the atty’s role: In re Pautler (p.5)
Supreme Court of Colorado, 2002
Facts: Pautler was Chief Deputy Assistant Atty for area and arrived at crime scene where 3 women were brutally murdered. Deputy Sheriff Cheryl Moore was in communication w/ killer, William Neal, who had left pager #. Neal willing to surrender but wanted legal representation. Neal requested atty who had previously represented him, but Pautler was unable to reach him. Neal and Pautler agreed that Pautler would obtain a PD for Neal, but instead Pautler impersonated a PD and convinced Neal to surrender. Pautler did not make any effort to correct his misrepresentations to Neal. PD began representing Pautler and ultimately learned of Pautler’s conduct. Neal later dismissed the PD and represented himself pro se w/ advisory counsel. Neal was convicted of murder and received the death penalty.
Issue: Pautler’s conduct may have been a factor in Neal’s decision to dismiss the PD and to represent himself.
Rule: it is professional misconduct for an atty to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Attys working in law enforcement are not distinguished from other attys.
Findings: Kourlis, J.
In People v. Reichman the same defense Pautler asserts here was rejected, that his deception of Neal was justified under the circumstances; it was ruled that even a noble motive does not warrant departure from the Rules of Professional Conduct—and so the case directs that prosecutors cannot involve themselves in deception, even w/ selfless motives, or they violate Rule 8.4(c).
Pautler asks the court to make an exception to the Rules for situations constituting a threat of “imminent public harm.” Pautler compares his case to one in which a kidnapper held a gun to the hostage’s head and the DA falsely agreed not to prosecute. But in that case, the DA had no alternative, while Pautler had the opportunity to negotiate w/ Neal.
The court finds that when presented w/ choices, at least one of which conforms to the Rules, an atty must not select an option that involves deceit or misrepresentation. Pautler should have contacted a PD or informed Neal that no atty would be called until he surrendered. The Court also found that Pautler’s duty as an atty trumps his duties as a peace officer.
By not correcting his conduct, Pautler also violated Rule 4.3 (usually comes up when lawyers are dealing with clients who they don’t represent…need to tell them up front that they can’t give them any legal advice and they are just gathering facts)
Sanction: 3 month suspension.
Q: What rules of professional conduct did the court find that Pautler had violated?
A: Rules 8.4(c) “conduct involving dishonesty, fraud, deceit or misrepresentation”
Involves both the practice and non-practice of law
Harm is not required
Quasi-criminal in nature: standard of proof (preponderance of evidence) is no different b/t disciplinary or civil cases
Rule 4.3 advice to unrepresented person whose interests may be adverse to atty’s client
Prevent the misleading of law to a person unrepresented by counsel
Atty knows or should have known other person has misunderstood must make reasonable efforts to correct
Only legal advice allowed to give is to secure counsel
Rule 4.1: truthfulness in statements to others (not in case)
Q: Was his violation clear or did he have legitimate justifications for what he did?
Noble motive—arrest a killer
Misrepresentation permissible in certain cases
Acting as a “peace officer”
Q: Put yourself in his position. Why do you suppose he acted the way he did?
Pressure of situation
Crime fighting mentality
Q: How does the perspective of the judges who decided the case differ from his?
Removed from pressure of situation
Concerned about protecting integrity and reputation of the profession, particularly in an era in which attys have been subject to substan
Administrative Rules and Regs, ex Sarbaine-Oxley Act
Restatement of Law Governing Lawyers: contains extensive treatment of atty civil liability
Relationship b/w Professional Rules and Standards and the Law Governing Lawyers: must consult both in deciding how to proceed
Complex. Sometimes law overrides professional standards.
Ex: state statutes limiting contingency fees
SOX regulation
Sometimes law deals w/ substantive issue not covered by professional rules or standards.
Ex: duty of confidentiality and atty-client privilege.
Sometimes supplement rules or standards
Ex: improper questioning
Often deal w/ remedy rather than standard
Ex: ineffective assistance of counsel
Ethical Responsibility for Misconduct by Another Atty or Non-atty Assistant
Orders or w/ specific knowledge ratifies conduct, 5.1(c)(1), 5.3(c)(1)
Knows of conduct when its consequences can be avoided or mitigated but fails to take reasonable remedial action, 5.1(c)(2), 5.3(c)(2)
II. Introduction to Professional Responsibility: Systematic Issues and Developing a Philosophy of Lawyering (pp. 22-28, 34-56, Problem 1-2)
Aspects of professional life in which difficult issues arise:
Personal: relationship b/w private and professional life
Practice: uncertain questions in course of representation
Institutional: position on and involvement in issues facing the profession (pp. 55-56)
Philosophy of lawyering: articulated and justified statement of your approach to dealing w/ these aspects of professional life.
Approaches to uncertain questions in practice
Client-centered Lawyering: neutral partisanship; the traditional approach to resolving questions of professional ethics when the rules are unclear (p. 22).
Philosophy of Morality: attys are morally accountable for the actions they take on behalf of their clients and must be prepared to defend the morality of what they do. In case of doubt atty should adhere to moral principles.
Principle of non-accountability: attys are not morally responsible for actions they take in their professional role on behalf of clients—Professionalism
Philosophy of Institutional Values:
In case of doubt adhere to values that express the social or institutional role of the atty.
Institutional values often embody moral principles.
Various writers have proposed different philosophies based on the social role of attys.
6 values that lie at the core of professionalism (p. 25):
An ethic of excellence
An ethic of integrity: a responsibility to say “no”
A respect for the system and rule of law: a responsibility to say “why”
A respect for other attys and their work
A commitment to accountability
A responsibility for adequate distribution of legal services
Professionalism movement is one of most significant efforts to articulate a set of values that reflect the social role of the atty and counterbalance the tendency toward over zealousness.
