PROFESSIONAL RESPONSIBILITY
TEICHER
SPRING 2013
v CHAPTER I: REGULATION OF LAWYERS [ABA MODEL RULES ARE MUST RULES]
I. General Class information
a. Know the restatements that we go over in class
b. Know rules and commentary for rules (1.15)
II. Qualities
a. Honesty
b. Integrity
c. Trust
d. Loyalty
III. Ethics Code
a. Designed to show us how NOT to get in trouble
b. Sometimes the right thing conflicts with the code
IV. A Self-Governing Body
a. State Supreme Courts
i. Set rules of Professional Conduct
ii. Hears case law on
b. Administrative Law
c. Civil Law
d. Criminal Law
e. American Bar Association (ABA)
i. Voluntary Trade Organization; non-mandatory membership among practicing lawyers
ii. Creates the Model Rules
1. Adopted in some form by most states
iii. 2000 Amendment to Code of Ethics
V. State Bar Associations
a. Unified Bars
i. A state bar that accepts delegated functions from the state’s highest court
ii. Membership IS mandatory
b. Voluntary Bars (New Jersey)
i. Voluntary Bars have no official capacity
ii. Office of Attorney Ethics is broken into District Ethics Boards (disciplinary committees)
1. Lawyers that sit on this are volunteers
2. Cases submitted to Office of Attorney Ethics- High-profile cases are heard by full-time attorneys in the Office of Attorney Ethics
a. Stealing money
3. Lower profile cases are handled by District Ethics Board
a. Billing issues
b. Adequate representation issues
c. Lying to adversaries
d. Procrastination, Distraction, & Neglect
e. Substance abuse, sex with clients
VI. Malpractice v. Disciplinary System
a. Malpractice has civil liability- Client is suing attorney for causing him damages
b. Disciplinary System determines whether the attorney should be punished for violating the code of ethics
VII. Problem 1-2 Weed
a. Character and Fitness Application for Iowa Bar: “are you currently or have you been in the past 3 years been engaged in the illegal use of drugs? If Yes, give complete details.”
b. Options
i. Disclose that you had smoked pot.
1. Benefits: Not lying.
2. Detriments: They may not accept you.
ii. Deny it.
1. Benefits: It’s hard to prove that you did smoke. Don’t have to deal with worrying about admission.
2. Detriments: You’re lying.
iii. Plead the 5th
1. Benefits: Not disclosing any information.
2. Detriments: Could trigger an investigation. Comments are unclear about results.
iv. Sue
1. Sue the ABA or state SC- over the question and its fairness
v. Seek Legal Advice
1. Many lawyers deal with bar admission issues
c. Reasoning
i. Protection of the public
VIII. Problem 1-3: The Doctored Resume
a. Someone is on trial for stealing a car. During trial, prosecutor brings in evidence that 2 years prior. Is this allowable? No objection based on character because it shows propensity.
i. Yet, 1-3 the doctored resume is exactly that – during character and fitness, we use your past behavior to judge your future.
b. Why do we have the ethics rules?
i. To protect the public.
c. Rule 8.1 (IMPORTANT RULE)
i. An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
1. knowingly make a false statement of material fact; or fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or
2. knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
ii. Keep in mind:
1. Shows that these rules apply before we even become lawyers
2. Pleading the 5th à
a. This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.
b. You can plead the fifth but its kind of taken away.
v CHAPTER II: LAWYER LIABILITY
IX. Discipline in Practice
a. Common Grounds for Discipline
i. Misappropriating client funds
ii. Comingling law firm and client funds
iii. Mussing court filing deadlines
iv. Failing to respond to client communications
v. Committing mail fraud and tax evasion
vi. Neglecting client cases
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
· Basically, all conduct fits into at least one of these; if you do something repulsive, they’re gonna get you.
· The disciplinary system isn’t dependent upon findings of fact in any other system; disciplinary system doesn’t have to wait for the criminal charges are finished to get the evidence, the disciplinary system have their own subpoena powers, hearing process, fact-finding proceedings, etc.
· Standards of proof are also different;
o in disciplinary it’s clear and convincing evidence.
· Why might we have a more difficult standard?
· Because different things are at stake; taking away one’s freedom in one situation versus someone’s job in another.
X. Professional Discipline
a. Problem 2-3: The Little Hearing
i. Options:
1. Attend + suck it up
a. This could be an issue because she doesn’t have legal knowledge to fulfill fiduciary duty she owes to client.
2. Don’t show up, client will not have representation.
3. Try to persuade boss to change
4. Resign
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ii. Repercussions
1. Civil action (malpractice)
2. Rule 5.1
3. Professional Code- Focus on Rule 5.2
4. Rule 5.3
5. Courts may sanction the lawyer
6. May have a duty to tell on her Boss (Rule 8.3)
b. Rule 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers
a. A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
b. A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts that the other lawyer conforms to the Rules of Professional Conduct.
c. A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
i. The lawyer orders or, with knowledge of specific conduct involved; OR
ii. The lawyer is a partner or ha
ial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
f. Lindsay lohan example
1. Rule 8.4(d) “the stupid rule” – it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
a. “flagrantly violative of accepted professional norms”
2. Rule 5.1/5.3 issues
g. Problem 2-2: Exculpatory Evidence
i. 1.6- could you make the argument that despite the evidence- this should remain confidential?
ii. The Himmel Rule- Originated in Illinois where “snitching” occurs at its highest rate — If you know about another lawyers reportable conduct and fail to report it you are responsible for an ethical violation.
1. A statutory requirement to report misconduct of other attorneys
2. Failure to do so results in sanctions for the lawyer that failed to disclose such information
iii. 8.3 – must report misconduct of another attorney – the reporter must KNOW THAT THE VIOLATION OCCURED. He might not have enough details to identify the correct case, that the one in the paper was IN FACT the one that he friend told him about. But it could be enough. Does the violation raise a substantial question as to the lawyers honesty
iv. In problem 2-2 coming out and admitting it was enough to prompt the lawyer to report. There is a stricter time limit under 3.8 that requires prosecutors to report
v. Professor thinks you need to tell someone in this case, especially since the lawyer basically fully admitted he suppressed exculpatory evidence.
vi. “a lawyer who knows that another lawyer…” ß the other lawyer is dead, so does the rule still apply?
1. You can argue that he has to be alive, so you don’t have to report it
2. Or you can argue that it doesn’t stipulate so you have to report it.
vii. Make sure you tell appropriate professional authority, not just the ethics people of your firm, etc.
viii. Your ethical obligations, professional considerations, practical concerns are all things to consider.
ix. What if you have information but you’re not sure? You need to look into just to cover your ass. You definitely need to document what you did “I looked at the facts, rules, spoke to colleague, and then determined this isn’t something I need to report” do the diligence and memorialize it
