Professional Responsibility Outline

 
            Professional Responsibility, Seton Hall Law School, Prof. Freamon, Fall 2015      
 
Chapter 1:  Introduction to Legal Ethics
 
Introduction
·         There is more self-regulation in the field of law today.
·         The ABA Model Rules of Professional Conduct are used today as a model for states to adopt.
·         Clients are more careful about choosing a lawyer and monitoring the lawyer today.
·         The government has increased its regulation of the legal field in both statutory and regulatory means.
·         We bring in a set of moral knowledge from our past – from our friends, family, accomplices, workplace, etc.
·         Some may be right, some may be wrong but have been normed.
·         The purpose of this course is to erase our moral knowledge and give us a new set – a special set of moral knowledge for the purpose of practicing law.
 
Moral Knowledge = moral principles and rules
·         Right and wrong
·         Timeliness
·         Keeping promises
·         Loyalty
·         Prudence (reputation for reliability and trustworthiness)
 
Sources of Law to know for this course:
·         pp. 1 – 93 of the Rulebook are the Model Rules, including the Comments.
·         I need to know the NY & NJ State Rules for Advertising and Confidentiality.
·         I don’t need to know the other state rules for the exam – just for my information and for state exams.
 
History
·         English law was built upon custom and etiquette, so there was no reason to write down rules with respect to what they did, because they were all “gentlemen.”
o   Barristers vs. Solicitors
·         In the Americas in the 19th century, that model of division of lawyering was broken down, and there was just one class that did the work of both (both barristers and solicitors).
·         George Sharswood  gave a lecture in 1854 that stated that there ought to be a code of ethics.
·         Alabama was the first state to pass a code of ethics.
·         In 1878, a Professional Code of Ethics was established by the American Bar Association (ABA). 
o   This was a national approach to issues that affected lawyers.
·         Again in 1908, Charswood wrote an Essay on Professional Ethics, which became adopted into the ABA Canons of Professional Ethics. 
o   When they were adopted, they gave aspirational parameters for what lawyers should/should not do.
o   Confidentiality is the main one. 
o   Many states did not adopt them; but, if there was a professional ethics problem, they could be used against the lawyer. 
·         Women weren’t permitted to practice law until the 1930s, and African Americans weren’t permitted to practice law until the 1960s.  Similarly for Hispanics and other minorities.
·         Since only white men were permitted to practice at this time, due to barriers put up in the legal arena, some have said that these are really the ethics of white men that were established at this time.
·         After the 1960s, the rules became much more egalitarian, much less aspirational, and about 30 states adopted the Model Code.
·         Then, after this, there was a swing back, and lawyers became disenfranchised with the ABA Model Code.
·         The newest approach is the ABA Model Rules of Professional Conduct which is a Black Letter Law approach, which 47 or 48 states have adopted.  The Model Rules are what we use today and learn in this class.
·         Vocab:  DR – Disciplinary Rule
 
 
Rico v. Mitsubishi Motors
·         P. 19
·         What action is required of an attorney who recieves privileged documents through inadvertence and whether the remedy of disqualification is appropriate?
·         An attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged.
·         Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.
·         The lawyer in Rico made copies of the material and distributed it to his co-counsel. 
 
Rico v. Mitsubishi Notes:
·         CA in the Mitsibushi Case rejected the ABA rule and imposed their own rule on this circumstance because the lawyer had really gone too far in terms of CA’s view of what is necessary to satisfy professional courtesy and ethics amongst lawyers.
·         Most states say that accidental disclosure of privileged material (such as Meta-data in a Microsoft Word document) does not waive the attorney-client privilege.
·         If there is purposeful invasion of a privileged document, then there is a violation of both the opposing lawyer but also the opposing party’s client’s privilege.
 
Take-aways:
1.       Behind the rule is a moral principle.
2.       Method of Approach to an Ethics Problem: 
a.       Ascertain the Facts,
b.      Apply the Rule to the Facts,
c.       Go back to look at the Facts again.
 
Client with Diminished Capacity – ABA Model Rule 1.14(b) 
·         When the lawyer reasonably believes that the client has diminsed capacity,
·         Is at risk of substantial physical, financial, or other harm
o   Unless action is taken and cannot adequately act in the client’s own interest,
·         The lawyer may take reasonably necessary protective action,
·         Including consulting with individuals or entities that have the ability to take action to protect the client, and
o   In appropriate cases,
·         Seeking the appointment of a guardian ad litem, conservator, or guardian.
 
Comment:
·         (1) The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.
·         However, when the client is a minor or suffers from a diminished mental capacity, maintaining the ordinary client-lawyer relationshiop may not be possible in all respects.
·         In particular, a severely incapacitated person may have no power to make legally binding decisions.
·         Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.
·         For example, children as young as 5 or 6 years of age, and certainly those of 10 or 12, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.
·         Also, it is recognized that some persons of advanced age can be quite capable fo handling routine financial matters while needing special legal protection concerning major transactions.
·         (2) The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect.
·         Even if the person has a legal representative, the lawer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
·         (3) The client may wish to have family members or other persons participate in discussions with the lawyer.
·         When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege.
·         Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf.
·         (4) If a legal representative has already been apppointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.
·         In matters involving a minor, whether the laywer should look to te parents as natural guardians may depend on the type of proceeding or matter in which the laywer is representing the minor.
·         If the lawyer represents the guradian as distinct from the ward, and is aware that the guardian is acting adversely to the ward’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct.
 
Taking Protective Action
·         (5) If a lawyer reasonably believes that a client is at risk of substantial physical, financial, or other harm unless action is taken, and that a normal client-lawyer relationship cannot be mai