Alfini Pro Res Outline Spring 2010
I. Introduction to Pro Res
A. The foundations of Professional Responsibility
1. The lawyer as a fiduciary
a. Fiduciary obligation owed by the atty to the client, protect the interests of others ahead of his own.
b. Fiduciary duties of a lawyer
i. Duty of competence:
1. Rule 1.1, 1.3
ii. Duty of loyalty
1. Rule 1.7, 1.9 conflicts of interests
iii. Duty of confidentiality
1. Rule 1.6: “ a lawyer shall not reveal information relating to rep of client unless the client gives IC.”
2. The lawyer as an officer of the court functioning
a. Lawyer may not bring an action that is frivilous
3. The lawyer as a person with personal and financial interests
B. Resolving Tensions in the lawyers role: complying with rules and standards of professional conduct and the law governing lawyers
1. Professional Rules and Stnds: ABA codes of ethics etc
a. Most state and federal courts base their rules on ABA model Rules
b. Model Rules
i. Based on 69 model code, replaced model code. Adopted in 83.
ii. Divided into 8 sections
iii. MR 8.4 Misconduct; it is professional misconduct for L to:
1. Violate or attempt to violate rules, knowingly induce another to do so, or do so through acts of another
2. Commit criminal act that reflects adversely on L’s honesty; trust; or fitness as L in other repsects;
3. Engage in conduct involving dishonesty, fraud, deceit or misrep
4. Engage in conduct that is prejudicial to admin of justice
5. State or imply an ability to influence a govt agency or official or to achieve results by means that violate urles or
6. Knowingly assist J or juidical officer in conduct that is a violation of app rules of judicial conduct or other law
2. Law Governing lawyers (other than rules of professional conduct)
a. Court decisions
i. Disciplinary: brought against atty for violating pro conduct rules
ii. Malpractice: civil lawsuits brought by clients or 3rd parties, damages
iii. Disqualification: filed as part of civil or criminal actions
iv. Sanctions: part of the underlying case
v. Criminal: lawyer can be held in contempt etc
b. Statutory law: regulation of judges and attys constitutional province of courts (less significant)
3. Research tools
a. Philosophy of lawyering: approach to dealing with questions that arise
C. Going beyond the rules
1. Client centered philosophy
i. Traditional approach
ii. Lawyers must take action that is in client’s best interest so long as it doesn’t clearly violate ethics
iii. Atty not morally accountable for these actions
2. Philosophy of morality: atty is morally accountable for actions they take on behalf of client and must defend morality if required.
3. Philosophy of institutional values
D. Issues facing the profession: methods of regulating Atty conduct: mostly self regulatory. Done through two methods
1. Admission to Practice
i. Atty must attend accredited law school take and pass bar
ii. Also must be found to be of “good moral character”
1. Whether a rzbl man could fairly find that there were doubts about honesty fairness and respect for rights of other and laws of the state and nation.
2. Problem: who really determines this? What is the standard?
2. The disciplinary system
i. The duty to report misconduct by another lawyer
1. MR 8.3(a): a lawyer who knows of misconduct by another lawyer that raises a substantial question as to that atty’s honesty, trustwnss, or fitness as a lawyer in other respects shall inform the appropriate professional authority
a. C: this rule d/n req disclosure of info otherwise protected by 1.6 or info gained by L or J while participating in approved L’s assistance program
b. Knowingly, known, or knows denotes actual knowledge of fact in q. knowledge may be inferred from circumstances
ii. Exceptions and limitations to the duty to report misconduct by another atty
1. Duty only applies if the lawyer ‘knows’ of misconduct, requires actual knowledge, not rzble person standard of should have known
2. MR 8.3(c): duty to report is subject to duty of client confidientiality, (MR 1.6; client confidentiality
iii. ABA model rules for disciplinary enforcement
1. MR 8.4(B): criminal acts commited by lawyer
2. If atty found guilty of misconduct:
a. Sanctions, disbarment, suspension, probation, reprimand, restitution, etc.
b. Admonition: administered in cases of minor misconduct (warning)
3. Civil Liability and Criminal Punishment
i. Legal malpractice: COA by which clients and in some cases third parties get damages from lawyers
1. Claim is usually negligence, breach of fiduciary duty, failure to disclose
2. Usually no claim is allowed by non clients due to privity rules.
3. MR 1.1: obligation of competence on lawyers: a lawyer shall provide competent representation of a client. Competent rep requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
4. MR 1.3: diligence
5. Violation of a rule itself though is not itself a basis for malpractice liability.
ii. Disqualification motions: filed by one party seeking a court order that the other party’s lawyer may not continue to rep that party bc of a violation of MR, typically COI.
iii. Monetary Sanctions:
1. FRCP 11: lawyer sings, certifies it is not frivolous either in law or fact. If violated court can impose MS.
II. Defense and Prosecution of Criminal Cases
A. The client Lawyer relationship: CLIENT-
n ethical obligation to maintain confidentiality of information regarding past crimes
1. MR 1.6 confidentiality of information:
a. Subsection a: L shall not reveal information relating to rep of client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the rep or the disclosure is permitted by sub b.
b. Lawyer may reveal information to extent L believes to be rzbly necessary:
i. To prevent rzbly certain death or subst bodily harm
ii. Prevent client from commiting a crime or fraud that is…(look on slide) subs financial injury
iii. To rectify consequences
iv. To secure legal advice about L’s compliance with MR
v. To comply with other law or court order
2. Texas rule 1.05 © (7) lawyer shall reveal conf info when L has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraud act.
2.Dealing with physical evidence fruits and instrumentalities of crimes: L may not assist their clients by actively concealing tangible criminal material. Abuse of L’s responsibility knowingly to take possession of and secrete the fruits of a crime.
1. MR 1. 2 Allocation of Authority
a. Subsection d: L shall not counsel client to engage assist client in conduct that L knows is criminal or fraud, but L may discuss legal consq of conduct with client and help client.
2. MR 3.4 comment 2: applicable law may permit L to take temp poss of evidence of client crimes for purpose of conducting a limited examination that will not alter or destroy it
3. L has duty on their own motion even in absence of a subpoena to turn over tangible criminal material that comes into their possession.
4. Application of 5th amendment privilege against self incrimination
a. Fisher case: L is not bound to produce information if:
i. L received the information from client in a communication that is subject to the atty client privilege AND
ii. The compulsion if directed toward the client rather than the atty would violate 5th bc client would be compelled to give incriminating evidence against himself
5. How atty should comply with obligation to turn tangible criminal material over to authorities