Professional Responsibility Outline

Professor Alfini

Professional Responsibility

Fall of 2011

INTRODUCTION

A) The model rules of professional conduct are just that — MODEL rules à they are NOT binding on any state although many states follow them or something very similar

B) Why do we need a disciplinary system?

1) To enforce the rules

2) Local Counsel àlocal committees à state wide board à state high court

3) The supreme court sets up the committees that create and enforce the rules

C) History

1) Canons—criticized for being oratory.

2) 1983 MRPC was the first set of enforceable rules

i) Another big revsion in 2002 – by aba ethics 2000

TERMINOLOGY

A) Firm – 1.0

1) a L or Ls in a partnership, professional corporation, sole proprietorship or other association authorized to practice law OR

2) Ls employed in a legal services organization or the legal department of a corporation or other organization

B) Screened – 1.0

1) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law

2) Further Comments on Exception – 1.0 Comment [9]

i) Disqualified L should acknowledge obligation to not communicate with other Ls about the matter

ii) Other Ls should be informed not to communicate with disqualified L

iii) Good thing to put the procedures for screening in writing

iv) Periodic reminders of the screen to the screened lawyer and all other firm personnel

3) Effective Screening – 1.0 Comment [10]

i) In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening

C) Knowingly, known, knows – Rule 1.0 – Terminology

1) (f) Denotes actual knowledge of the fact in question.

2) Knowledge may be inferred from circumstances

D) Informed Consent

1) Agreement to a proposed course of conduct AFTER

2) L has communicated adequate info and explanation about material risk and reason avail alternatives

3) (Usually in writing)

ADR

A) Less than Absolute Truthfulness during Mediation

1) Truthfulness to Others – Rule 4.1(a)

i) L shall not knowingly make a false statement of material fact or law to a third person

2) Truthfulness during Negotiations – Rule 4.1 Comment [2]

i) Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.

ii) Examples of NOT a material fact:

a) Estimates of price or value placed on the subject of a transaction

b) A party’s intentions as to an acceptable settlement of a claim

c) Existence of an undisclosed principal where it is NOT fraud to withhold disclosure

iii) L needs to be aware of duties under applicable law

B) Absolute Truthfulness Required during Arbitration – rule 3.3 **Know this ***

1) Ls who represent clients in ADR are governed by the Rules of Professional Conduct.

2) When ADR takes place before a tribunal, as in binding arbitration L’s duty of candor is governed by Rule 3.3.

3) Otherwise, L’s duty of candor toward 3d-neutral and other parties is under Rule 4.1–negotiations

C) Disclosure During ADR

1) BUT MUST Disclose Material Facts to Avoid Crime or Fraud – Rule 4.1(b)

i) L shall NOT fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless prohibited by Rule 1.6

2) Adopting False Statements of Others may be a Misrep – Rule 4.1 Comment [1]

i) No affirmative duty to inform the other party of relevant facts

ii) BUT a misrepresentation can occur if the L incorporates or affirms a statement of another person that the L knows is false.

iii) Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statement

3) Failure to Disclose to the Tribunal May be an Affirmative Misrep – Rule 3.3 Comment [3]

i) There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.

D) Remedies for Problems during ADR

1) Advisor – Rule 2.1

2) Decline or Terminate Representation – Rule 1.16

3) Reporting Misconduct – Rule 8.3(a)/(c)

4) Limits to Reporting – Rule 8.3 Comment [3]

5) Duty to Report to Tribunal – Rule 3.3(a)(3)/(c)

i) If L knows his party has offered false material evidà the L shall take reasonable remedial measures including disclosure to tribunal if necessary

ii) This duty continues to the conclusion of the proceeding, even if disclosure of information otherwise protected by Rule 1.6

E) Should Discuss with C the various Approaches to Negotiation

1) C’s Authority in Representation – Rule 1.2

2) Styles of Negotiation

i) competitive adversarial

ii) cooperative adversarial

iii) competitive problem-solving

iv) cooperative problem-solving

F) Cannot Negotiate Away the Representation of Any L – Rule 5.6

1) A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy

G) Differences between Mediation and Arbitration

1) Arbitration

i) The decision is binding and there is a neutral decision maker

ii) Predispute arbitration – the parties contractually agree to submit to arbitration any disputes that may arise in their relationship in the future

iii) Postdispute arbitration – parties agree to submit to arbitration a controversy that has already arisen

iv) They are not appealable

v) An arbitrator makes decisions (like a judge).

2) Mediation

i) Don’t have the power to issue a binding decision

ii) Mediators are only communication facilitators

iii) The more evaluative the mediation becomes the more it begins to look like an arbitration

iv) A mediator is a communication facilitator and never makes decisions

3) Arbitration As and Ds

i) Advantages: Speed, finality, expertise, informality, flexibility, privacy (outside of public view)

ii) Disadvantages: Delays, can’t appeal, difficult to find good arbitrators, admissibility of evid, lack of discovery, procedural problems, impartiality

H) L and Mediator Should be Trained in ADR – Rule 1.1

1) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

I) Need to Inform C about ADR

1) Advisor – Rule 2.1 Comment [5]

i) In general L not expected to give advice until asked by the C

ii) BUT when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation

2) Communication Requirements – Rule 1.4

i) A lawyer shall reasonably consult with the C about the means by which the client’s objectives are to be accomplished

J) Serving as an Arbitrator or a Mediator

1) Allowed by Rules – Preamble Comment [3]

i) In L may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals

2) Disqualification as Former Judge, Arbitrator, Mediatory, Etc.. – Rule 1.12(a)

i) L shall not represent anyone in which L participated substantially as a judge or other adjudicative officer or law clerk OR

ii) As an arbitrator, mediator or other third-party neutral, UNLESS

iii) All parties to the proceeding give informed consent, confirmed in writing. …

3) Disqualification Imputed – Rule 1.12(c)

i) If L disqualified then no L in a firm which L is associated may represent the C UNLESS

a) dq L is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

b) Written notice promptly given to parties and tribunal to enable them to ascertain compliance with the Rules

4) L Serving as Third Party Neutral – Rule 2.4

i) Definition – 2.4(a)

a) L serves as a third-party neutral when L assists 2 or more persons who are NOT Cs to reach resolution of dispute

b) Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to