Professional Responsibility
DeGraw
I. Introduction to Professionalism
A. “Can Ethics be Taught in Law School?” – Supplement Article
1. Most people are moral in face-to-face activities
a. This is not enough, however; also need to be moral in our societal relations (Act morally for the common good).
b. Acting for the common good is more difficult, however, b/c you don’t know who is being affected – if you don’t know this, then you can’t be certain how to act.
2. Bottom Line = people can learn ethics whenever.
3. Even though your duty as lawyer is to zealously represent your client, you must also be accountable to society by the actions you take.
B. ABA Modern Rules of Professional Responsibility
– Latest installment of self-governing body. Old set of rules called the “Code”.
1. Preamble – A lawyer’s responsibilities (p.8 of codebook).
2. ABA MR (Model Rule) 8.4 Misconduct
– What our profession views as immoral conduct for a licensed attorney.
– Comments following the rule make it clearer.
3. ABA MR 8.5 – Disciplinary Authority and Choice of Law
(A) Disciplinary Authority – Regardless of where ethical misconduct occurs, lawyer is subject to the jurisdiction of where he is, but also can be sanctioned in any state (even where he isn’t licensed).
– 1993 – ABA thought this was too tough, so they put in …
(B) Choice of Law – rules applied are those where the Ct. sits if conduct involved in that Ct.; if conduct didn’t occur in that Ct., then lawyer is subject to the jurisdiction where :
(1) lawyer previously practices, or
(2) where the predominant effect of the actions occurred.
C. TX Disciplinary Rules of Professional Conduct (p. 23 of supp.)
– Similar to ABA preamble, but goes beyond
– Ex. Zealous representation ¹ scorched earth policy (can’t use any tactics to get your clients an advantage).
– Remember, the ABA rules are merely a guide ® they don’t have any weight until a state adopts them; merely advisory.
1. TX 8.04 – Misconduct – somewhat diff. than MR
– Picks up where ABA rule leaves off – more changes made.
– has 6 more rules than ABA (7-12)
– Unlike MRs, TX doesn’t have a rule against saying bad things (??).
2. TX 8.05 – Jurisdiction
– If admitted to practice in TX, lawyers are subject to our state discipline.
– If there are problems in other jurisdictions, then TX Cts. can still get you:
(1) If there’s an 8.04 violation, or
(2) If another state disciplines you.
D. Defining Professionalism
1. Pound’s defn.
The term refers to a group … pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.
2. Freidson’s defn. – 4 things that make a job a “Profession”
1. That its practice requires substantial intellectual training and the use of complex judgments.
2. That since clients cannot adequately evaluate the quality of the service, they must trust those that they consult. (Trust = fiduciary relationship)
3. That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good.
4. That the occupation is self-regulating – organized in a way as to assure the public and the courts th
attorneys, discipline, etc.).
C. The Client
1. The lawyer is the client’s agent – agency rules apply.
– Agency laws differ according to state.
2. Lawyer is also the client’s fiduciary – client’s trust rests w/them.
– Fiduciary role exceeds any responsibility you owe as an agent.
3. Lawyers may also be a trustee, but this isn’t as common – most lawyers don’t want to be trustees.
4. Lawyer can also be a govt. agent.
D. When is a Client a Client?
1. This is a question of law, not ethics.
2. Money need not change hands to form a relation, but this is usually a good indication when it does.
3. Courts are beginning to recognize that such a relation exists when the client reasonably believed under the circumstances that a relation existed (especially if confidential info. is exchanged).
– If you have a client, and your actions have been muddled from original plan, or your actions have not been clearly defined, you’ll likely get into trouble. This is b/c the lawyers actions that fall w/in the scope of the authority given by the client are attributed to the client.
– Only resource for client at this point = malpractice action. Ct. won’t rectify the situation b/c of lawyer ignorance/mistake.
– Taylor v. Illinois – Taylor, as attorney, refused to obey state discovery laws. Client is screwed, b/c attorney has full authority to
