Professional Responsibility – Bauman – Fall 2014
Ch. 1 – The Legal Profession: Background & Fundamental Issues
Ø Sources of Law – Establishes the rules of professional conduct
· ABA Model Rules
o Substituted by state rules- TX Disciplinary Rules (looser than the Model Rules / Less Strict)
· Substituted by rules for specialized areas of practice
· Ethics advisory opinions
· Court Decisions
o Disciplinary
o Malpractice
o Disqualification
o Sanctions
o Criminal
· Statutes: The federal gov’t may be taking a greater role in regulating the legal profession
Ø Moral People vs. Moral Actions: 6 stages of moral development
1) I am moral b/c I’m going to be punished if I do something wrong.
2) I’ll be good to you if you are good to me.
3) A person conforms behavior to something he thinks others will approve.
4) Conforming acts to what is required by the social order. Respect for authorities.
5) Social Contract – greater possibilities of change in the social order.
6) I’m going to be good b/c it’s the right thing to be good
Ø The Lawyer’s Roles
· These are often in tension, resulting in the more difficult problems of professional conduct
Ø Lawyer as Client Fiduciary – Special obligation to protect interest of client, though to involve the following special duties:
1) Duty of Competence
2) Duty of Loyalty
“[A]n advocate, in the discharge of his duty, knows but one person in the world, his client. To save the client by all means, expedients, & at all hazards & costs to others, & among them, himself, is his first & only duty; He must not regard the alarm, torments, & destruction which he may bring upon others.” British Atty Lord Brougham
3) Duty of Confidentiality
Ø Lawyer as Officer of the Court: “Professionalism”
· Imposes limits on use of improper means of advocacy
· Imposes limits on the pursuit of frivolous claims.
· Often reflected in “Lawyer’s Creeds”
o Unintended Consequence of Creeds: Deciding if they are “What to avoid” or a “how to manual” of abusive practices
Ø Lawyer as Individual with Interests
· Lawyer as an individual w/ a sense of morality.
o “about half the practice of a decent lawyer consists of telling would be clients that they are damned fools and should stop”
· Lawyer as an individual w/ personal interests:
o Pursuing the practice of law
o Making a living
o Being respected in the profession and the community
Ø Moral Accountability in the Course of Representation: Possible Approaches
· The “amoral” view: The lawyer as Metro bus:
o No moral responsibility in choosing cases to accept (whoever comes along) or in the results.
o This approach most helps clients exercise their full autonomy.
· Moral responsibility for choice of area of practice
· Moral accountability for the decision to undertake representation, but to whom are you accountable?
o Yourself
o Others
o Client.
· Responsibility to engage in moral dialogue w/ client. Client ultimately retains final decision making authority. Lawyer can accept decision or attempt to withdraw
· Moral dimension is that one must work to reform institutions of the law to promote justice.
· Many of these are not mutually exclusive; may pursue more than one.
Ø Ways to change the The Lawyer’s Roles
· Client Centered or Neutral Partisanship – Increase “Lawyer as client fiduciary”
· Institutional values – Increase “Lawyer as officer of the court”
· Philosophy of Morality – Increase “Lawyer as individual with personal values”
Ø MR 8.1 Bar Admission And Disciplinary Matters
· Applicant/lawyer can’t knowingly make a false statement of material fact; or
· Applicant/lawyer can’t fail to disclose a fact necessary to correct a known misapprehension, or knowingly fail to respond to a lawful demand for info from an admissions or disciplinary authority, except don’t have to disclose confidential info
· Reasons the bar looks into these types of things
o Protect future clients
o Protect the profession
Regulation of the Legal Profession
Ø MR 8.4 Misconduct
Rules – It is professional misconduct for a lawyer to do the following:
o Violate or attempt to violate the Rules, knowingly assists or induce another to do so, or do so through the act of another
o commit a crime that reflects adversely on honesty, trustworthiness or fitness
o be dishonest, fraudulent, deceitful or misrepresentative
o engage in prejudicial conduct to the administration of justice
Purpose: create a “self-governing profession”
History: Distinguished by “moral turpitude” unconnected to fitness of practice (EX: adultery)
General
o Personally answerable to criminal law
o Professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice
· Repulsive Beliefs
o A lawyer who, in the course of representing a client,
o knowingly manifests by words, conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status,
o violates paragraph (d) when such actions are prejudicial to the administration of justice.
v Legitimate advocacy respecting the foregoing factors does not violate paragraph (d).
v A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
Ø MR 8.3 Reporting Misconduct
Must Report if:
o A lawyer knows another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer
o 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.
Exceptions
o Don’t have to disclose confidential info under Rule 1.6
v should encourage client to consent to disclosure if prosecution wouldn’t substantially prejudice their interests
· COMMENT 2 – Duty to report doesn’t apply to a lawyer representing a lawyer whose conduct is in question
v Client-lawyer relationship rules apply
· COMMENT 4 -Don’t have to disclose info gained by a lawyer/judge while participating in a lawyers assistance program
· A judge/mentor to a lawyer does not have to report past misconduct of fraud
Ø MR 8.5 Disciplinary Authority; Choice of Law
Admitted to practice in jrsd = subject to the disciplinary authority of jrsd, regardless of where conduct occurs.
Not admitted in jrsd= also subject to the disciplinary authority of jrsd if the lawyer provides or offers to provide any legal services in this jurisdiction
May be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
Choice of Law. any exercise of the disciplinary authority of this jurisdiction, the rules to be applied shall be:
o conduct in connection with matter pending before tribunal = rules of jrsd where tribunal is
§ unless rule provide otherwise; and
o for any other conduct = rules of the jrsd in which conduct occurred, or, if predominant effect of conduct is in different jrsd, the rules of that jrsd shall be applied. Lawyer shall not be subject discipline if conduct conforms to rules of jrsd in which lawyer reasonably believes the predominant effect of conduct will occur.
Ø MR 8.
possibility of forming a client-lawyer relationship with respect to a matter is a prospective client
· 1.18(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d) If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
· EXCEPTIONS – 1.18(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
o (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
o (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
§ (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
§ (ii) written notice is promptly given to the prospective client.
· Specific Duties to the Prospective Client
o Confidentiality – [MR 1.18(b)]
o Care for documents and property
o Responsibility for any advice given.
Pro Bono Lawyer
Ø MR 6.5 Nonprofit & Ct-Annexed Limited Legal Services Programs
· (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
o is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
o (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
· (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
Ø MR 1.2(b) Decision to Represent
· MR 1.2(b): Representation of client, including by appt, isn’t an endorsement of client’s political, economic, social, moral views or activities
· Relationship Forms
· Is a written K req’d? Not required but should be done
· Are formal words req’d? No formal words required
· What is required?
o Explicit meeting of the mind, a person manifests their intent to be represented by the lawyer, lawyer manifests the intent to help or the lawyer fails to manifest lack of consent and knows or reasonably should know the person will rely on that lack of consent
· Whose “reasonable” perception regarding whether or not lawyer-client relationship has been formed counts?
o Client can reasonably perceive and the relationship exists
