Professional Responsibility Outline Franzese Spring 2017
Who Regulates Lawyers
The Regulation of Lawyers
Institutions That Regulate lawyers
Profession is mostly SELF-REGULATING
Model code separates disciplinary rules (DRs) from advisory ethical considerations (ECs)
state ethics codes vary from ABA Model Rules so lawyers should follow state
primary function of state ethics codes are:
1.to guide lawyers in deciding what conduct is appropriate in situations
2. to provide a basis for punishing lawyers who violate them
Can the legislature pass a bill to change a court rule, as it does when it wants to change the common law?
not everywhere
some courts say that their authority over lawyers is exclusive of other branches of gov’t
Negative inherent powers doctrine- only courts can govern lawyers. Some courts have invalidated legislation regulating lawyers
Ex. Legislature of KT passed statute that authorized nonlawyers to represent workers’ comp claimants in administrative hearings. State Supreme Court held that law violates state constitution which gave court exclusive power to regulate practice of law
Ex. PA legislature enacted statute that made it a misdemeanor for lawyer to pay another person to recommend that lawyer’s serviced to another client. PA supreme court struck that down saying it intruded on judicial authority to regulate lawyers bc it was directed at lawyers rather than gen public
What is the differenced between a court opinion in a lawyer discipline case and an advisory ethics opinion?
an advisory opinion is not a decision but is written by the bar committee in response to an inquiry from a lawyer
Admission to Practice Law
Graduate of an accredited college
Rule 8.1 Bar Admission and Disciplinary Matters
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 a person to have arising in the matter, or knowingly fail to respond to a lawful demand for information from an admission or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6
Graduate from a state approved law school (usually this means ABA accredited)
Submit Application
Finding that the applicant is of good moral character and is fit for the practice of law à will the applicant practice law in an honest and competent manner?
Err on the side of inclusion
Risk of inconsistent application à we may question whether this is a good system
Hold’s profession to a high standard
Potential Area’s of Concern
Insincerity – bounced checks
Cheating
Fiscal irresponsibility
Psychiatric treatment (for some narrowly defined illnesses – in most states this involves questions about illnesses that require hospitalization or that involve psychotic disorders)
Substance abuse
Information disclosed must be the same that is disclosed to the law school
Bottom Line – DISCLOSE EVERYTHING
A passing score on the bar exam
Grounds for Discipline
Professional Conduct
Misappropriating client funds
Comingling law firm and client funds
Missing court filing deadlines
Failing to respond to client communications
Committing mail fraud
Committing tax evasion
Neglecting client cas
Suspension
Public Reprimand
Private Reprimand – read you the riot act in private
Rule 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 substantial question as to the lawyers 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 (can’t violate confidentiality)
Interpretation
This rule has many standard’s aspects
“knows” – more than “mere suspicion”
“substantial question”
“fitness as a lawyer in other respects”
Bar’s sentiment is – you know it when you see it
Law seems to exclude “self-reporting” based on the “another lawyer” language, but in certain circumstances a lawyer may elect to self report rather than wait for another lawyer to report a violation.
Whether or not this rule is used depends on the norms of individual state bars
In Illinois it is used a lot
In New York the rule is not used frequently.
Sheppard – this rule is used strategically against opposing counsel.
