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Professional Responsibility/Legal Ethics
John Marshall Law School, Chicago
Reis, Leslie Ann

Professional Responsibilities – Fall 2012
Professor Leslie Reis
 
Suggested 4 step Analysis
–          who’s doing what to whom
o   whose interests are at stake
o   what’s your relationship
–          What rules apply
o   What are your obligations under the applicable rule
–          What the appropriate course of conduct
o   What actions comply with a applicable rules
–          Conflict of rules
ISSUE SPOTTING
o   Identify Issue
o   Identify Rule, policy or principal to resolve that issue
o   Do Analysis this rule applies because apply to facts
o   Thus actions may be subject, or may not be subject to disciplinary action
 
Key Issues that will be on exam
–          Confidentiality
–          Conflict of interest
o   Is there a conflict and
o   Is it waivable
 
 
I.  REGULATION OF LAWYERS
 
A.    INSTITUTIONS THAT REGULATE LAWYERS
a.       ABA Model Rules
b.      Highest State Courts
c.       Statues
d.      Common Law
e.       Illinois Supreme Court
 
B.     ADMISSION TO PRACTICE
–          Graduation from undergraduate institution
–          Graduation from Law School
–          Submission of application
–          Deeemed of good moral Character
–          Passing the state bar exam
o   Admission to the Illinois Bar
o   Committee of Character and Fitness
o   Attorney Registration and Disciplinary Commission
o   Rule 701
§  21 years old
§  Good Moral character and general fitness
§  Pass exams and academic qualifications and professional responsibility
o   Rule 703
§  Preliminary Education
§  Undergraduate degree
§  ABA approved Law School
 
C.    LAWYER LIABILITY 8.3 & 8.4 Different in Illinois look at Difference Paper
a.       Every Lawyer is responsible to report serious misconduct by other lawyers
b.      If violation is related to confidential information (attorney-client privilege) then don’t need to report
 
1.     Professional Discipline
a.       Complaint is filed by client or lawyer with disciplinary office
                                                                          i.      Highest court runs disciplinary system
                                                                        ii.      State or independent bar associations may administer the disciplinary system
                                                                      iii.      Bar Counsel investigates complaint
1.      If complaint does not warrant charge file closed
                                                                      iv.      If complaint is warranted, hearing committee conducts hearings, makes factual findings, recommends sanction
1.      Hearing committee includes two lawyers and a non lawyer
                                                                        v.      Hearing committee decision reviewed by judicial agency and or by the highest state court – reviewing body makes final decision on sanction
b.      Types of major disciplinary allegations
                                                                          i.      Excessive fees
                                                                        ii.      Delays in completing work
                                                                      iii.      Low quality of performance
                                                                      iv.      Conflicts of interest
                                                                        v.      Failure to keep confidences
                                                                      vi.      Failure to perform promised services
c.       Violation of Ethics code does not have to occur in the course of practice
                                                                          i.      Conduct that is dishonest
                                                                        ii.      Or prejudicial to the administration of justice or
                                                                      iii.      That reflects lack of fitness to practice
1.      Ex: failure to pay child support, excessive drunk driving, sending flowers and not offering legal assistance to family of a deceased person in funeral home
                                                                      iv.      May be disciplined even for the act even if no criminal charge is filed or the lawyer is acquitted of a charge in a criminal proceeding
                                                                        v.      Disbarred in one state and has license in another that state must notify other state regarding disciplinary action
 
2.     Civil Liability of Lawyers – AKA Malpractice
a.       The lawyer owed a duty to the plaintiff
b.      The Lawyer failed to exercise the competence and diligence normally exercise the competence and diligence normally exercised by lawyers in similar circumstances and
c.       The breach of duty caused the injury
 
3.      Criminal Liability of Lawyers
a.       Can be held for criminal charges if you do something against the law
 
4.      Client Protection Funds
a.       Puts money from licenses into fund to help fund clients
 
D.  REGULATORY RESTRICTIONS ON LAW PRACTICE
 
1. Unauthorized Practice of Law
– Rule 5.5
 
2.  Interstate Law Practice
            – Rule 5.5
– In the name of consumer protection, state bars protect their lawyers from outside competition and regard poaching by out-of-

underlying facts, are protected by the privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)
 
Privileged Persons
–          Secretary/paralegals/investigators/lawyers agents
If Unprivilege person hears ACP is gone
 
2.  Client Identity
            – Client Identity Not Privileged
 
3.  Waiver
            – Express waiver by client can waive privilege
            – By revealing privileged communication to a non privilege person
                        – cannot be done by lawyer on his own (client has to do it)
                        – Joint Representation still has privilege if common representation is shared among them)
            – Putting Privilege communication at issue (sue attorney for malpractice)
            – Waiver to conversation by its partial disclosure
            – Compliance with court order
 
5.      The Crime-Fraud Exception
a.       No ACP exists if client seeks assistance with a crime or fraud
b.      But if asking if something is illegal privilege still exists
 
6.      The Death of a Client
a.       Privilege Survives Death
 
7.      The Privilege for Corporations 
a.       Who is the client
                                                                          i.      Control group test – limits privilege to those in corp who have authority to take action or set policy
b.      Subject Mater Test
                                                                          i.      Extends privilege to communication with an employee as along as communication relates to the subject matter of the representation
 
8.      The Work Product Doctrine
a.       Protects notes and other material prepared by lawyer in anticipation of litigation
b.      Protects statements from witnesses
c.       Protects material not covered by attorney client privilege
d.      Aims to protect lawyers strategic thinking
 
D.   COMPETENCE (Rule 1.1)
a.       A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
b.      Must be competent exception occurs in emergency situations