Gauza – Prof. Resp. – Fall 2016
Overview: What is Professional Responsibility:
:
Moral responsibility—following the law, Model Rules, Ct Rules, civility, dress
Behavior—fairness in how we treat others.
The golden rule
Trustworthiness/what is your word of mouth? (how would others describe you when you’re not around?)
Community service
Role modeling
Right decision making—
Its easy to recognize right from wrong, but it is hard to choose when it’s right from right (right from right is a moral problem/ethical dilemma)
PR is: Moral Responsibility
Attorneys are in a profession that provide a provision of services
Attorneys feel that they are in a profession that requires dignity, a devotion to ethics and a high amount of responsibility that other professions do not have
Thus low respect for attorneys engaged in “sharp practice”:
Sharp practice is used to describe the unethical practice by others
These atty’s are “petty foggers.”
Examples of “sharp practice” include:
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if the atty talks to the judge in a secretive way
PR is: Watching Your Behavior
Professional Responsibility (PR) not only deals with an atty’s behavior in the court room, but also their personal behavior:
PR issues occur constantly in practice, what are the Pitfalls of Practice?:
Lawyers have high alcoholism rates
Alcoholism starts in law school
Can be disciplined for personal behavior that has nothing to do w/your ability to practice law: (Ex. OWI’s get reported to ethics committee & can be disciplined for them)
long hours, deadlines, difficult clients, & high workloads
Sexual Irresponsibility
Don’t sleep with your clients!
Bar Admission:
Understanding the impact of failing to meet ethical requirements of the profession including information about character & fitness.
Personal morality does not prevent or solve PR dilemmas b/c the MR often require actions that are inconsistent with personal morality. Even reading the model rules may not provide the answer b/c they are sometimes unclear & make inconsistent demands:
You can only reveal info if your personal services have been used. Thus if know info, but services have not been used…can’t disclose the information! (1.6)
Decorum: dress & demeanor
Ct rooms have a code of professional dress:
In general—no skin! (it’s not “in”)
Is it misconduct to dress improperly?
Probably NOT but:
judge/jury will not think about your client/case if you are dressed improperly
if they are not thinking about the client/case it can hurt your client:
remember, attorneys are their client’s advocates!
if you dress poorly, it may affect your ability to attract clients with $ due to lack of respect:
remember Ann Arbor cowboy hat hippie atty example
PR is: Community Service:
Two forms of community service:
Unpaid “legal” community service—pro bono work
Rule 6.1: ABA recommends that attys should aspire to perform 50 hrs of pro bono work per year.
donate time on a case, donate $, give speeches
Other forms of community service:
Lawyers = leaders & are responsible for upholding the Constitution
Every lawyer who practices in an ethical way is responsible for leadership
As a general rule:
if you have used any state or government service, you need to give back
it displays unselfishness
rewards of doing community service
personal satisfaction
gain respect of community
helps with networking:
serve on boards with other professionals: school, utility, zoning & parks boards
it enhances your ability and standing in your profession
What Are the Model Rules:
the model rules are guidelines; thus they are not binding unless adopted by a state.
Most states have adopted the model rules, but those who have not, have adopted codes that preceded the model rules
The rules that the states adopt are binding.
The rules apply to an atty regardless of his position or role as an atty
How is one punished for violating a Model Rule?:
1. There are different and sometimes multiple sanctions for the same behavior:
Four types of punishments for misbehavior:
Misconduct—discipline by the ethics committee (disbarment, probation, suspension)
Malpractice Claims—failure to meet the standard of care for an atty
Court Sanctions—being found in contempt, jail time, fines
Criminal Sanctions—being punished criminally:
Ex. found criminally guilty for embezzling client’s funds
Attorneys can be punished by all four of the above:
Ex. Jeffery Feiger found guilty/punished for judge shopping after he filed 13 complaints then dismissed 12 (the only only left was for the judge he wanted)
Remember: primary duty to client is loyalty and loyalty accounts for all other responsibilities to the client. The MR’s encompass this concept.
Contents of the Model Rules:
Preamble: A Lawyer’s Responsibilities
¶ 2: Atty as advocate should zealously assert their clients positions (per 1.3 & 1.1, but can’t lie to ct (3.3), file friv suit (3.1))
¶ 8: When ea party is well represented, an atty may be a zealous advocate” for her client while assuming that
justice will be done
¶ 9: An atty should resolve challenging professional responsibility problems by:
Exercising sensitive profession & moral judgment guided by the MR
Including the atty’s obligation to zealously protect & pursue her client’s valid interests
on that counsel’s conduct falls within the wide rang of reasonable professional assistance.
2. and deficient performance results in prejudice to the Δ
this requires a showing that counsel’s errors were so serious as to deprive the Δ of a fair trial
i.e. Δ must show that he would have been acquitted but for is atty’s deficient performance
actual or constructive denial of assistance of counsel altogether is legally presumed to result in prejudice (like sleeping through trial)
when counsel is burdened by an actual conflict of interest, prejudice is presumed, only if the Δ demonstrates:
that counsel actively represented conflicting interests
and that an actual conflict of interest adversely affected his atty’s performance
ex. if represents 2 Δ’s in the same case, if the loyalty to one party could harm the other, then a conflict of interest exists.
if an atty represents the personal representative of an estate, a 3rd party has a COA against the personal rep., NOT the atty b/c:
atty only represents the personal rep and the personal rep is supposed to act for the benefit of the beneficiaries.
ex. atty hired by a DR to draft his will, leaving out one of his children. The child, non-client, could sue the atty for malpractice alleging that father not in right mind, undue influence, etc.
Malpractice suits by 3rd parties:
A third party must prove that:
the transaction that the atty was representing the client on was intended to affect the 3rd party
and harm was foreseeable
California Multi-Factor Balancing Test:
The extent to which the transaction was intended to affect the Л
The foreseeability of harm to the Л
The degree of certainty that the Л may suffer injury
The closeness of the connection btwn the Δ’s conduct & the injury
The policy of preventing future harm
The extent to which the profession would be unduly burdened by a finding of liability
Illinois Third Party Beneficiary Test
A nonclient must prove that the primary purpose and intent of the atty-client relationship is to benefit or influence the 3rd party
The Washington Combined Test
If the transaction was intended to benefit the Л
Apply CA factors 2 through 6
