Professional Responsibility
Franzese
Fall 2014
Regulation of Legal Profession
A. Powers of Courts and Other Bodies to Regulate Lawyers
1. (Courts Have Highest Authority- inherent power to regulate legal profession)- runs disciplinary system and appoints disciplinary review board
2. Each state has its own Rules of Professional Conduct (RPC) based principally on the American Bar Association (ABA) Model Rules of Professional Conduct. Most states have adopted some version of the ABA Model Code of Judicial Conduct.
Virtues of Uniformity of Rules of Professional Conduct (RPC)
-Eliminates uncertainty and confusion
-Provides predictability which allows for efficiencies due to forecasting
-The law endeavors to honor reasonable expectations
-Pro Hac Vice- allows you to operate in another state. It is specifically an application to appear before a court
-To be granted one, you need to have a reasonable relationship for appearing.
Federalism-FRCP
-Most important is FRCP 11 – a lawyer may be sanctioned for bringing frivolous, vexatious, bad faith pleadings or suits
3. 4 Types of Discipline for violation of RPC mandate:
a. private reprimand/censure (Small rebuke- not on public record).
b. public reprimand/censure (larger rebuke to deter)
c. suspension for finite period
d. disbarment (worst punishment)
Admission to Profession
1. U.S. Supreme Court ruled that state requirements for admission to bar must be rationally related to the practice of law.
a. Rationally related criteria (Reasonable connection to practicing law)
1. Graduation from ABA accredited law school
2. Take an oath to uphold the Constitution
3. Character & fitness committee determination
I. Candidates & Lawyers involved in application for bar admission must: (applies to lawyers duty to report others)
Rule 8.1:
a. Be truthful & candid (Make full disclosure)
b. Not knowingly make a false statement of material fact
c. Not knowingly fail to respond to lawful demand for information from admissions authority.
-Except information protected in Rule 1.6.
Duty To Report Professional Misconduct
Rule 8.3: Reporting Professional Misconduct–Rule 1.6 protections still
1. Self-regulating profession- 2 pronged duty when attorney knows of a violation
a. The attorney must report except for confidence or secret protected by client privilege when he knows that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s character, honesty, trustworthiness as a lawyer.
b. Rule 8.3A- not all violations must be reported. Only violations that raises a substantial question as to the lawyer’s character, honesty, trustworthiness as a lawyer. (Doesn’t have to be in practice of law).
Ex. Himmel Case- a lawyer failed to report serious misconduct by another lawyer and was disciplined.
Ex. In Re Riehlman- bar disclosure about corrupt prosecutor case (Charged with Rule 8.3)
Rule 8.3B- judge commits violation of applicable rules of judicial conduct that raises a substantial question as to judge’s fitness for office shall inform the appropriate authority.
c. The attorney must be available to testify.
-The attorney-client privilege will trump the duty to report the misconduct to the bar.
-The duty of confidentiality through membership in an approved lawyer’s assistance program that helps lawyers and judges with substance abuse programs.
Ex. Belge Case-
Rule 8.4: Misconduct
a. Violate or attempt to violate RPC, knowingly assist, or induce another to do so, or through acts of another
b. commit a criminal act that reflects adversely on lawyer’s honesty trustworthiness or fitness as a lawyer in other respects (even if the lawyer is not engaged in the practice of law).
c. Engages in conduct involving dishonesty, fraud, deceit or misrepresentation. (even if the lawyer is not engaged in the practice of law).
d. conduct that is dishonest or prejudicial to the admission of justice or that reflects lack of fitness.
e. state or imply ability to influence improperly a gov’t agency or official or to achieve results by violating RPC or other law
f. knowingly assist judge or judicial officer in conduct that is violation of applicable rules of judicial conduct or other law.
Grounds for attorney discipline
-Misappropriating client funds, missing filing deadline, failing to respond to client, mail fraud, tax evasion, neglecting client cases.
Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers
1. Rule 5.1: A supervisor is responsible for acts of a subordinate if:
a. knew of misconduct at a time when the consequences can be avoided or mitigated and supervisor fails to take reasonable remedial action
OR
b. violation raises a substantial question about the subordinate lawyer’s honesty or character and the supervisor ordered or ratified the conduct.
2. Rule 5.2A: a subordinate lawyer is bound by the RPC notwithstanding that he acted at the discretion of another person
b. unless lawyer acts in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty
Ex. Weider case- NY court of appeals held that the right to fire employe
fense if the client sues the lawyer. (Malpractice suit) or criminal or civil claim from conduct which client was involved or to respond to allegations concerning the lawyer’s representation of client.
6. To comply with a court order.
7. To detect and resolve conflicts of interest, but only if the revealed information would not compromise the attorney-client privilege.
8. The attorney has implied authority from the client to use or disclose confidential information when appropriate to carry out the representation and serve the client’s best interests, unless of course the client gives specific instructions otherwise. Comment 5 Rule 1.6
9. The client gives informed consent.
Duty to Prevent Disclosure
c. lawyer shall make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to representation of client
Factors: sensitivity, likelihood of disclosure if additional safeguards not employed, cost of employing safeguards, difficulty of safeguards, extent safeguards adversely affect lawyer’s ability to represent
2. That standard applies to any information the attorney learns in connection with a matter the lawyer is handling for the client, even when the lawyer receives the information from a source other than the client.
3. “Client” means a person or entity that seeks legal services from an attorney. The privilege covers preliminary discussions leading up to an attorney-client relationship, even if no such relationship develops. Comment 3 Rule 1.6
4. When a lawyer represents an organization, the lawyer owes the duty of loyalty and confidentiality to the organization. When the interests of the organization and its constituents conflict, the lawyer should advise the given constituent that the lawyer represents the organization. Thus, communications between the lawyer and the constituent may not be protected by the attorney-client relationship and the constituent may want to obtain independent counsel. Rule 1.13
5. Lawyers must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to a client’s representation. Rule 1.6c.
