Professional Responsibility Outline

Professional Responsibility: Professor Wilfredo Caraballo, Spring 2013
 
 
I)       Chapter 1- Intro to Role of Lawyers
A.     Morla Philosophy, Right and Wrong, and Law Governing Lawers
B.     The Role of lawyers
1.      Conceptions of the Lawyer’s Role
                                                              i.      Laws governing lawyers is about the relationship of lawyers to their clients, peers, and justice system. The relationship set up duties, the relationships define the law.
                                                            ii.      Many rules based on special role-based morality.
                                                          iii.      Role morality comes from duty to client.
·         Our roles inform our duty, what we can/cannot do, or what we should do.
                                                          iv.      As officers of court, owe court candor, honesty. If client says hes guilty, and says he’s going to commit perjury, this creates a conflict between duty to client, and duty to court.
                                                            v.      Rules are attempting to balance these roles.
b.      William H Simon- Idea of advocacy- Professional Ethics
                                                              i.      First principle of conduct is neutrality. Expect to represent client’s interests
                                                            ii.      Second principle is partisanship. Work to advance client’s ends
                                                          iii.      Foundational principle of Ideology of Advocacy is professionalism.
c.       David J. Luban, Lawyers and Justice
                                                              i.      Adversary system excuses lawyers from common moral obligations to nonclients
2.      Differences between Lawyers Litigation and Planning Roles
a.      Problem 1-1
                                                              i.      Lawyer has two new clients. Both involve application for IRS regulation. One asks lawyer to fashion a transaction around IRS regulation as an advisor and planner, the other client was charged with IRS fraud in the creation of a transaction which he thought he made to take use of tax advantages.
                                                            ii.      When advisors, you are looking at future activity. Look at range of future activities and what the client can do. Here, a lawyer can be morally responsible for future conduct. One you are advising, you may be sharing moral responsibility for conduct which arises out of your advice. You could even share legal responsibility with client. If you know you can be liable, you may be a little too conservation. You could be accused of putting yourself ahead of your clients interests.
                                                          iii.      When in litigation, look at past. A lawyer is not responsible for a client did, not morally responsible to past action. Can be held accountable during litigation, but not responsible for past.
b.      Westlake v. Abrahams
                                                              i.      P’s are suing the D for fraud relating to the sale of commodity options. P says D engaged in fraudulent activity in this sale. They also want to go after the lawyers.
                                                            ii.      Most important determination is figuring out what role the lawyers played in this transaction. They try bringing the lawyer into an SEC law, saying someone in control has liability. Because the lawyers had control, they should be liable for the client’s fraud.
                                                          iii.      Lawyers claim they were not acting as advisors, but were brought in for litigation purposes, and the only advice they gave was advice for litigation purposes. Lawyers are trying to paint a clear picture of their role, and their liability comes from the role.
                                                          iv.      Ct looks at firms role, looks at what it did, and determines it was brought in for litigation purposes, and was not giving advice. Because they were acting as litigators, they do not have responsibility for the conduct of the client.
                                                            v.      Here, the source of law is the SEC statute.
·         Sometimes the law we’re looking at are outside the rules, but substantive laws of contracts, torts, ect.
·         Example:
a.       (1) We take a legal position that we think is correct
b.      (2) we believe the position is correct, but there are argument that aren’t frivolous that our position is not correct
c.       (3) we can take a legal position that we are not sure about
d.      (4) lawyer doesn’t believe in position they are advocating, but can still make a reasonable argument to support that position. You may also thing there is a chance to win.
e.       (5) you don’t believe in your position, have no reasonable argument, but non-frivolous argument that you can make.
f.       (6) you don’t believe in position, can’t make a reasonable argument, and every argument you can think of is frivolous
·         Ex: guy is accused of raping 80 yr old and wants to get out and rape a 3 yr old. If you are defense attorney, duty or role isn’t necessarily to get them out of jail, but also to get the prosecution to prove their case.
II)    Chapter 2- Reg of Legal Profession and Controls of Conduct
A.     Institutional Framework
1.      Organization of the Legal Profession
a.       The American Bar Association
·         ABA came about in the 1800’s, and membership was invite only. This caused other groups to form their own groups.
·         Open to anyone who passes the bar exam.
a.       Alternative National Bar Associations
b.      State Bar Associations
                                                                    i.      States license lawyers to practice within their particular jurisdiction. Assist in supervising the lawyers.
2.      Sources of Law Governing Lawyers
a.       Ethics Codes
                                                                    i.      Mode code of PR was ABA’s first genuine effort.
b.      Case Authority and Inherent Court Power
                                                                    i.      Chambers v. Nasco
·         Owner of TV station offers to sell its facilities to the D. Seller then decides not to sell, but buyer wants to buy. Seller then enters into conduct to avoid the K, and acted in ways to violate court orders. Acted in ways to undermine the judicial system. Case focuses on conduct of the seller, but the role the lawyer played in the obstruction of the judicial process.
·         Ct is trying to sanction the lawyer and the seller.
·         State and federal rules that were available wouldn’t allow the proper sanctions. Case focuses on court inherent power to sanction for bad faith conduct.
·         Some of our rules come from court having the inherent power to regulate bad conduct, and inherent authority.
·         Note 1 pg 25- the attorney was disbarred from practicing in front of federal courts, doesn’t mean they’re disbarred from practicing in state courts.
·         There are limitations on how far states can go in limiting our rights, for example 1st amendment rights.
a.       Ethics Opinions
                                                                    i.      Some issue non-binding ethics opinions that are frequently relied upon by courts in law of lawyering cases.
b.      Constitutional Constraints
c.       “Other Law”
2.      Admission to Practice
·         Cts have power to regulate admission to jurisdiction
·         In some jurisdictions, bar association membership is voluntary, other membership in bar association is mandatory. Term is integrated bar.
·         There are certain educational and character requirements that need to be satisfied.
·         Certain basic constitutional rights cannot be abridged in joined the association.
a.       Territorial Restrictions
                                                                    i.      Supreme Ct of New Hampshire v. Piper
·         Tried to restrict admittance to the bar to state residence. Non-residence could not be admitted. New Hampshire ct says you cannot limit to new Hampshire courts only
·         Note 1- it is possible to be admitted in one jurisdiction to another by motion. Only exception to being admitted to NJ is if you’re a law professor and admitted somewhere for 5 years
·         Ex, in Wisconsin, you are automatically admitted to bar without taking the exam, so in NJ, cts wouldn’t allow exception since they never took the test.
a.       Education, Knowledge, and Good Character
·         Each state governs practice of law, governs through highest court.
·         All states impose educational requirements. All but a few require graduation from ABA accredited law school.
·         There are questionnaires asking if you satisfy educational requirements, or if they need to know anything about you.
·         Don’t need to commit a crime for the bar to find bad character.
                                                                    i.      Problems 2-1
·         Morris was a troublemaker in school, made practical jokes, sold shirts with nude caricature of dean. Should she be admitted? Need a lawyer who respects his peers is one argument to keep him out. Its not so much the one prank, but someone who doesn’t have a lot of respect for people, which could turn to not having respect for clients.
                                                                    i.      Problem 2-2
·         Bar question asked if ever involved in violent overthrow of government. There were three choices, yes, no, decline to answer. He chose decline to answer, and the bar refused to admit him. They said since he had the right to decline, they have the right to deny. Weren’t given the opportunity to fully evaluate his character.
                                                          vi.      To be admitted in the bar, need good character. States require questionares. Looks at past conduct, past convictions, job performance, ect.
                                                                    i.      In Re Lammers
·         Guy had a legal writing course, and he didn’t complete the writing requirement. Basically, he got conditional graduation, condition that he finishes the course. There were two boxes checked out, with no annotation. Someone didn’t realize that since both boxes checked, he shouldn’t have graduated. The Bar found out about this. Now they want to revoke his license after practicing for 7 years. 2 issues- didn’t satisfy academic requirements, and that he lied. Ct suspended his license, and he needed his degree. Problem was the school said no extension. Since it was 7 years, basically he needs to start all over again and go back to law school. It was intentional, clear disregard for the rules. Continuously misrepresented himself.
                                                                    i.      Clark v. Virgina Board of Bar Examiners
·         As part of applicant character and fitness questionnaire, she was asked about emotional disorders, and her past mental health status. The state took it upon themselves to ask about past mental illness, w