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Legal Profession
Santa Clara University School of Law
Yosifon, David G.

Professor: David Yosifon

Professional Responsibility

Spring 2015

Professional Responsibility

I. Intro

a. Where do Ethics Rules come from?

i. Central Problems and Issues

1. How do we need to behave in the profession?

2. What is about the profession that makes us the subject of ridicule?

3. What is it about the profession that causes suffering as a profession and as individuals (i.e. alcoholism, depression, etc.)?

ii. Three Paradigms

1. “An advocate, in the discharge of his [her] duty, knows but one person in all the world, and that person is his [her] client” (Henry Brougham (1821))

a. Common view – most people think that lawyers think they should behave this way

2. “A lawyer should take such actions as, considering the relevant circumstances of a particular case, seem likely to promote justice” (William H. Simon (1997))

a. What most people think lawyers should behave like – looking at all the circumstances

3. “A lawyer serves justice and the public interest best by serving the private interests of his [her] clients, one at a time” (A CA Lawyer (2007))

a. Lawyer acts as if the only interest is in the client but this serves justice overall

iii. Sources of Legal Ethics

1. Constitutional Law – constitutional limitations based on 6th Amendment, 4th Amendment, 1st Amendment

2. Common Law

a. Courts interpret the ethics codes

b. Inherent authority of the courts to regulate the legal profession

3. Statutory Law

a. CA Business & Pro Code – regulates with some specificity, through statute, of behavior of lawyers practicing in CA

4. Ethics opinions – the ABA & state bar associations issue nonbinding ethics advisory opinions & are frequently relied on by courts; sometimes published

5. Restatement – influential with courts and the 2000 Commission revising MR

6. Codes of Conduct – self regulation in the profession, with state by state mandatory legal rules

a. ABA models – the ABA has adopted a series of 3 models ethics codes that have served as models for state adoption

i. 1908 Canon of Professional Ethics – weren’t initially expected to be routinely enforced as rules by courts

ii. !970 Model Code of Professional Responsibility (Model Code) – ABA’s first effort to influence the setting of mandatory, national standards for lawyer conduct

iii. 1983 Model Rules of Professional Conduct (Model Rules)

1. Drafted in late 1970s & early 80s; amendments in 2002

2. Most states have adopted, by case law or by statute, some version of the Model Rules (but none have adopted it exactly)

3. Have been promulgated by the profession – then they’re adopted with deference by courts or accepted by legislature

b. State-adopted codes – these are what control in jurisdictions

i. CA Rules of Professional Conduct (CRPC) – borrow modestly from ABA Model Rules but many unique provisions

b. Professionalism

i. “Profession” – a professional subordinates self-interest and private gain to the interests of clients or to the public good generally

ii. Reasons prompting the discussion of professionalism

1. How to deal with & interpret lawyer advertising

2. How to deal with the growing legal profession

iii. How it will affect things

1. Public relations campaign

2. Effort to improve behavior of bar other than rules whose violations carry sanctions

3. Might influence both the content of rules on lawyer conduct and the way judges decide cases

iv. ABA’s Commission on Professionalism’s conclusion – “All segments of the bar should resist the temptation to make the acquisition of wealth a principal goal of law practice”

II. The Client-Lawyer Relationship

a. Defining the Client-Lawyer Relationship

i. Is there a client here?

1. Ways of forming a client-lawyer relationship

a. Traditional – meetings with agreement

b. Unexpected – can happen even if never met

2. No exchange of money required, but payment can be evidence of the relationship

3. The reasonable belief of the client is relevant, especially if the client gave the lawyer confidential info thinking the lawyer was performing a legal service

4. Rules 1.13(f), Rule 4.3 – requires that lawyers clarify misunderstanding

5. Finite scope to the relationship

a. No formalism necessary to create the relationship

b. There can be more than 2 participants

c. Client doesn’t have to be a person, but the lawyer does

d. Clients can be a class

ii. Fiduciary Duty

1. Rule – attorneys must place the client’s interests above their own for representation & must treat clients fairly

2. 3 reasons for fiduciary obligations

a. Client will have to depend on attorney’s integrity, fairness, superior knowledge, & judgment

b. Attorney might get info about client that gives him an unfair advantage

c. Client not in position to change attorneys, & is financially or psychologically dependent upon attorney’s continued representation

iii. Duty of Competence

1. Rule 1.1 – lawyer must give client “competent” representation

a. “Competent” – legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

b. Also required by the 6th Amendment

c. Mistake doesn’t necessarily equal incompetence, & lawyer isn’t a guarantor of result client wants unless he agrees otherwise

iv. Duty of Confidentiality

1. Rule 1.6(a) – a lawyer shall not reveal information

a. Broadly articulated

b. Includes all information relating to the representation of a client, so a disclosure if prohibited even if it wouldn’t reveal protected info but could lead to the discovery of such information (hypo ok if the listener won’t figure out the identity of the client)

c. Disclos

torney-client communication

i. Important b/c we want the client to tell lawyer everything since he doesn’t necessarily know what’s important & what isn’t – only lawyer can pick that out so client must be completely forthcoming

ii. Functional rule – makes it possible for lawyer to do his job

b. Client’s interest in autonomy

i. Considers that the lawyer is merely an intellectual extension of the client, expanding upon the client’s own capacities

ii. So expands upon the client’s interest in

c. It’s the “right thing to do”

d. Must balance with other interests (eg. HIV+ hypo)

4. Perez v. Kirk & Carrigan (TX Ct. App. ’91) – after P driver was involved in accident with school bus, his employer’s lawyers visited him in the hospital, told him they were his attorneys, elicited confidential info, & then told the DA who charged P. They breached their fiduciary duty b/c implied relationship formed b/c told P they were his lawyers & P intended statement to be private

5. CA DIFFERENCE

a. CA Rule 6068

i. CA Rule 6068(e)(1) – duty of confidentiality

ii. CA Rule 6068(e)(2) – exceptions

1. Attorney may reveal confidential info relating to representation of client if he reasonably believes its necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm to an individual

b. Contrast: in CA, must be criminal act, no exception for financial harm, no exception to protect the interests of the attorney

i. MR more like Paradigm 2, CA more like Paradigm 1

6. Attorney-client privilege in the entity context

a. Different tests for attorney-client privilege in the entity context

i. “control group” test –only extends to communications between attorney & individuals with controlling authority within the entity; & not to communications with lower level employees within the entity

ii. “subject matter” test – as long as the matter bore on a subject that related to the employees’ duties to the entity, than that conversation would be covered by the privilege & could not be divulged to an adversary

1. Federal Rule

POLICY – encourages full & frank communication – lawyer needs to be able to talk to all employees in the entity that might have information having an effect on the legal circumstances