LEGAL PROFESSION OUTLINE
Table of Contents
CHAPTER 1 – “Ethics” and “Legal Ethics”. 1
CHAPTER 2 – Sources and Application of Legal Ethics Rules. 2
RPC 8.1 – Bar admission and disciplinary matters for applicants and lawyers. 2
RPC 8.2 – Judicial and Legal Officials (appropriate behavior toward judges and candidates for judgeship)3
RPC 8.3 – Reporting Professional Misconduct3
RPC 8.4 – What constitutes professional misconduct for lawyers. 3
RPC 8.5 – Choice of law of disciplinary authority. 4
CHAPTER 3 – Beginning and Ending the Lawyer Client Relationship. 8
RPC 1.16 – Declining or Terminating Representation. 9
RPC 1.18 – Duties to prospective clients. 10
RPC 3.1 – Meritorious claims and contentions (no frivolous claims)10
RPC 6.1 – Pro Bono. 11
RPC 6.2 – Court appointed representation w/ exceptions. 11
RPC 1.9 – Duties to former clients. 13
RPC 1.16 – Declining or Terminating Representation. 13
CHAPTER 4 – Advertising and Solicitation. 13
RPC 7.1 – You can’t make false or misleading statements about your services.13
RPC 7.2 – Advertising. 13
RPC 7.3 – Direct Contact with Prospective clients (solicitation/ambulance chasing)14
RPC 7.4 – Communication of Fields of Practice and Specialization. 15
RPC 7.5 – Firm Names and Letterheads. 15
RPC 7.6 – Political contributions to obtain government legal engagements or appointments by judges 15
CHAPTER 5 – Attorney Fees and Fiduciary Duties. 18
RPC 1.5(a)(1-8) – How fees should be determined. 18
RPC 1.15 – Safekeeping property. 20
CHAPTER 6 – Competence, Diligence, and Unauthorized Practice. 24
RPC 1.1 – competence. 24
RPC 1.2 – Scope of representation and allocation of authority between client and lawyers 24
RPC 1.3 – Diligence. 24
RPC 1.4 – Communication. 24
RPC 1.18 – Duties to prospective client24
RPC 5.3 – Responsibilities Regarding Non-lawyer Assistant25
RPC 5.4 – Multi-disciplinary practice of law and split fees with lawyers or non-lawyers. 25
RPC 5.5 – Unauthorized practice of law in another jurisdiction; multi-jurisdiction practice 25
RPC 8.4 – Misconduct27
CHAPTER 7 – Confidential Information. 28
RPC 1.6 – Confidentiality of Information. 28
CHAPTER 8 – Candor in Litigation. 29
CHAPTER 9 – Fairness in Litigation. 31
CHAPTER 11 – Conflicts of Interest: Lawyers, Clients, Third Parties. 33
CHAPTER 12 – Conflicts between Two Clients. 35
CHAPTER 1 – “Ethics” and “Legal Ethics”
· 83,225 lawyers in NJ as of Sept 2005
40% are practicing in NJ
44% are also admitted in NY
20% are also admitted in PA
· Each state is free to adopt its own set of rules.
· RPC 6.1 – A lawyer should aspire to render at least 50 hours of pro bono work per year
· Legal Ethics in a Nutshell: Charge a fair fee, agreement has to be in writing, work hard, keep client informed of case, fiercely loyal to client’s interest, treat all with civility, honesty, and respect.
v Primary reason for discipline is to protect the public and not to punish the attorney.
· Legal Ethics: The rules that lawyers and judges have devised to govern their own conduct in their professional relationship with others and among themselves.
Some regulate the more mundane aspects of being a lawyer
Most rules are highly ambiguous.
When there is no rule then you look at the broader definition of ethics
Ethics: The study of the general nature or morals and specific moral choices to be made by individuals
· Utilitarianism: There are various philosophies that incorporate this notion
Greatest Happiness Principle: An existence that is as far as possible from pain and as rich as possible in enjoyments. Hedonistic.
Actions are to be judged right or wrong solely in virtue of their consequences.
In assessing consequences the only thing that matters is the amount of happiness or unhappiness caused.
In calculating happiness over unhappiness, no one’s happiness is to be counted as more important than anyone else’s.
Problems with the notion that consequences are all that matter:
Justice: Lie to quell the riots and have an innocent person convicted?
Right: Pleasure of viewing photos taken without subject knowing? People have rights that can’t be trampled on just because one anticipates happy result.
Backward-Looking Reasons: Promising a buddy to do something vs. staying home and studying? Utilitarianism looks only to future consequences.
Although one may think that they are bringing about the best consequences, one can by no means be certain of it.
A Rule-Utilitarian (as opposed to an Act-Utilitarian) always asks “What general rules of conduct tend to promote the greatest happiness?”
The Golden Rule: To do as you would be done by, and to love your neighbors as yourself.
The basis for most religions.
Kant’s Categorical Imperative: Act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as a means only.
Sets to provide a set of principles of obligation that can be used as starting points for moral reasoning in actual contents of action.
Kant says that we should not try to find out whether it would produce more happiness than other available acts.
We should see if the act uses others a mere means.
Maxims of deception, coercion are wrong.
In addition to acting justly we must also lend support to others because human are not ideal rational calculators.
CHAPTER 2 – Sources and Application of Legal Ethics Rules
(ABA rule 5.5 and 8.1-8.5)
RPC 8.1 – Bar admission and disciplinary matters for applicants and lawyers
– 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:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or 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.
RPC 8.2 – Judicial and Legal Officials (appropriate behavior toward judges and candidates for judgeship)
– (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
RPC 8.3 – Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.
RPC 8.4 – What constitutes professional misconduct for lawyers
– 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.
RPC 8.5 – Choice of law of disciplinary authority
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary a
or the administration of justice.
The court says that despite D not being fit he can be rehabilitated citing to Matthews, they give him 6 months to see.
· In the matter of the application of Jenkins – Facts: D failed to disclose to the Committee employment history, and that he had been arrested and charged in at least three criminal actions and had been a party in numerous civil actions. Given three certified statements to do so. Over time, the Committee found D to be remorseful and certified him as fit to practice. The Board of Bar Examiners agreed but SCNJ says no. RULE: You must show candor before the Committee.
You don’t want to conceal things from the Committee.
The court isn’t concerned with possible involvement in embezzlement, forgery, or larceny. Too much time has lapsed to determine the truth of the charges.
The court is concerned with candor!
D continued to deny one arrest.
v In NJ if an attorney is charged with an indictable offense there is an obligation to inform the disciplinary committee so proper action can be taken.
v In NJ if a lawyer is convicted of a “serious crime” there is an automatic suspension and another form of punishment is to be imposed.
· In the Matter of the application of Triffin – Facts: D was denied admission in PA so tried NJ. His application disclosed civil proceedings, bankruptcy, and outstanding judgments. RULE: Must show reform and rehabilitation. This case also shows that if you have debt, tell the ethics committee that you do and that you intend to pay it back.
Due process wasn’t violated because D was given ample time to be heard and failed to appear at hearing.
Evidence probative of reform includes (analysis should include this):
Complete candor in filings and proceedings
Renunciation of past misconduct
Absence of misconduct over a period of years
Productive use of applicant’s time subsequent to misconduct
Recommendations from people aware who consider person fit
“I have no further questions for this creature” doesn’t reach the level of disgraceful behavior in McLaughlin.
Not disclosing the DiSalvo finding doesn’t reach the level of lack of candor found in Jenkins.
Lack of respect evidence by failure to tell court that witness was his mother.
Failure to demonstrate financial responsibility.
No evidence of rehabilitation:
Nothing shows he’ll be more financially responsible
No attempt to pay creditors
Court suggests that he become self supporting and pay creditors
· An attorney who has been admitted in one state can represent a client in another state, may petition pro hac vice.
No disciplinary proceedings can be held against an attorney who is pro hoc vice in the new state.
Usually have to enlist a local attorney as co-counsel to assure compliance with local procedure.
NJ says a motion pro hoc vice should be granted unless there is a strong reason for the court not to allow it.
· A majority of states have reciprocity arrangements that allow an attorney who has practiced in one state for a set number of years to gain full admission to practice in other state by filling out a petition.
· An attorney who wants to practice in federal court must be separately admitted to the bar of that court. Each federal court maintains it own separate bar.
District court – applicant needs to be admitted in the state
Appellate court – applicant needs to be admitted in any state
Supreme Court – applicant needs to practice in any state for 3 years