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Legal Profession
Southern Illinois University School of Law
Schultz, Mark F.

Legal Profession
Southern Illinois University School of Law, Law 580
Prof. Mark Schultz
 
Class 1
I. Regulation of the Legal Profession
1. Introduction 
1)      Examples:
a)      Only take undisputed $ from trust account. 
b)      Can’t discuss settlement @ cocktail party; tell parties to talk or notify judge.
 
2. Admission to the Bar: regulate to: protect client, protect profession, protect courts (false claims), restrict supply of legal services (less likely).
Prob. 1: LS cheated on final, Dean lets makeup w/o telling bar, grad summer.  Name change, marij.
1)      Cheating: Would fall under 8.4(c) conduct involving dish/fraud/misrep.
2)      Marijuana: Experimental OK, habitual shows contempt for law.
3)      Name change w/o disclosure: 8.1(b): fail to disclose fact.
4)      Dean not telling bar association of cheating is violation: must disclose b/c reflects on fitness.  But if talk to atty, privilege prevents disclosure.
MR 8.1: Bar Admission and Disciplinary Matters: (don’t misrepresent or withhold).
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 {no lying}
b)      fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or
c)       knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. {don’t fail to disclose facts/ respond to lawful demands for info}.
1)      Prager:  wasn’t rehabilitated.  Length of time since offense wasn’t enough.  Want members of society to be productive, but not trustworthy enough to be lawyer.  Ran drug ring, fugitive from law.
2)      Converse: law school behavior might continue on grander scale as lawyer, so prevent admission.
3)      Hale: icky, and also “compelling interest” b/c bias future clients.  But use as pretext?
 
Class 2
3. Attorney Disciplinary Rules
a. Standards for Discipline
MR 8.4: Misconduct: It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct {not a crime} involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
MR 1.1 Competence: A lawyer shall provide competent representation to a client. Competent rep. requires the legal know., skill, thoroughness and preparation reas necessary for the representation.
MR 1.3 Diligence: act w/ reasonable diligence and promptness in representing a client (on top of stuff).
1)      can violate competence while fulfilling diligence (meet deadlines in complicated case; blow SoL)
2)      Malpractice only likely if client damaged; needn’t for conduct viol.
3)      Re: “Fitness”: standards are fuzzier than rules.  Factors in fitness analysis: (is the catch all)
(1)    nature of conduct (felony/ misdemeanor, civil)
(2)    treatment of same conduct by admitted lawyer
(3)    incidence of conduct (single v. pattern)
(4)    age at time
(5)    passage of itme
(6)    acceptance of responsibility
Prob. 2:
1)      Atty neglect most often seen by client.  Alcohol root of many o probs. 
2)      MPRE q’s and atty conduct:
a)      is atty subj to Discipline?
b)      May atty do x?
c)       is proper for atty to do x?
d)      Subj to civ. liab.?
e)      Subj to crim liab? (some acts neither, still subj to discipline.  Isn’t co-existent w/ malpractice)
3)      Embezzlement is particularly bad.  Looking @ past not precluded like criminal trial.
4)      Protokowicz: cooked cat, had boundary issues w/ zealous representation.
5)      Musick: 3 domestic assaults show contempt for law, regardless of whether is effective lawyer.
6)      Boudrou: explicit underage material: Another Hale image issue, but also shows willing to cross lines
7)      ABA’s std for lawyer discipline (86):  Factors: Duty violated; lawyer’s mental state; actual/ potential injury from misconduct; existence of aggravating/ mitigating factors.
8)      Spectrum of disciplinary sanctions:
a)      diversion to LAP/ Private admonition (A/B here; negligence, no injury)
b)      Public reprimand (negligence/lack of diligence, injury);
c)       suspension (pattern, non-serious); disbarment (pattern of neglect, serious injury)
d)      Summary: Discipline/denial of admission whether or not a felony was committed (but more likely if was) if: interference w/ administration of justice; false swearing; theft; fraud; misrepresentation; or similar breaches of trust, public or private.
 
b. Choice of Law
Prob. 2 (cont.)
MR 8.5 Disciplinary Authority; Choice of Law
(a) Disciplinary Auth: if admitted to practice in this j, subject to the disciplinary authority. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
1)      Ex: FL lawyer, visits NJ buyer, IL client seller has undisclosed environmental liability. 
a)      Hypo: IL “may,” NJ “must,” FL “must not,” disclose client conf.
b)      Per 8.5(a): submitted in FL, so must not.  But if found providing legal svcs in NJ, maybe subject.
c)       8.5(b)(2): if “reas believes” predominant effect of conduct in j, subj to disc. authority.
2)      8.5 Summary: subj to j where licensed or where conduct occurs (pro hac vice)
a)      8.5b (CoL): (1) tribunal where lawyer appears (EZ) (2) where conduct occurs unless reas belief “predominant effect” elsewhere.  Is safe harbor: atty only need reas. belief re: predom effect.
b)      Test: “Stds based ans”  “If don’t reveal, subj to disc?”  Yes, if reas. belief predom effct in that j.
 
c. Reporting Another Lawyer's Misconduct
Prob. 2 (cont.)
MR 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 a substantial question as to that lawyer's 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 or information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.
Comment [3]:  “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
1)      Busy colleague, not talking to clients: understandable, not diligence violation. 
2)      B here?  Lost case b/c of alcohol; maybe serious.  But A’s procrastination not yet harmful to clients.
3)      Himmel IL: unsuccessful collection, 2nd atty should’ve turned 1st in when ran off w/ $.  Obligated to report despite duty to client (said do nothing) and confidentiality.  O j’s: unless express exception to confidentiality, no duty.
4)      MPRE answer: “is lawyer subj to disc. for failure to disclose?”  A: “yes, if raises ‘subst. q of duty to practice law.’”
 
4. Regulation of Attorney Behavior outside of Disciplinary Law
a. Malpractice: ao sanction besides MR (ethical disc), judic sanction for contempt, crim penalties.
Prob. 3: SaraField; MedMal w/o indep. exam.  Tax; “should’ve called specialist.”  Unprepared crim.
1)      1st must kn

dispute, won’t return $ or ring until “worked out.”
1)      Owe fid duty of loyalty not to take advantage (position of trust).  Regltory oblgtns that accompany:
a)      Keep client $ separate; protect sensitive docs: is ethical (not just legal) responsibility.
b)      MR 1.15(a): keep $ in separate acct, (c), trust fund for legal fees/expenses paid in advance.
c)       Only put in own $ for bank fee.
2)      1.15d/e: notify and distribute fees rec’d promptly unless previously agreed o’wise or is dispute. 
MR 1.15 & Comments
4. Declining and Terminating Representation
 
Prob. 6 (cont)
MR 1.16: Withdrawal:
1)      Must when Representation would violate another MR (a1), ment/phys cond materially impairs representation (a2), or fired (a3). 
2)      May when
a)      no mat adverse effect in client interest (catch all).  Ex: 1 wk in; SoL maybe close: give back $
b)      client has used/is using svcs for fraud (opinion letter).
c)       Repugnant (prej) /fund. disagreement.  Fund. when: difference = can’t rep your client.
d)      Client fails fulfill mat’l oblig (late to ct), or unreas. fin. burden (but cont fee = risk.  Q of rsnblnss).
3)      Also: always minimize damage to client, even when you withdraw.
 
III. The Lawyer-Client Relationship: Duties of Confidentiality
 
1. The Attorney-Client Priv, the Work-Product Priv and the Prof. Duty of Confidentially Distinguished
1)      Sources: Rules Prof Cndct, laws of ev., law of agency, law of procedure.  Distinguish:
a)      A-C Priv.: all cmmunc; in conf; b/t L-C; for purp of obtaining legal assntnc; protected.

.
i)        Abs bar to A-C communic.  Conversation, not information, is protected. 
ii)       Waived if 3rd prty present; if ‘slips.’  No priv if furthering crime (can talk about past crime).
b)      Prof. Duty of Conf.: is only duty not to disclose.  Resist revealing (but doesn’t protect from revealing if forced to testify; is only ethical duty).
c)       WP Doct: Protects tangible mat’ls prepared in antic. of lit in certain circs. (weaker than A-C)
i)        involves Ct. testimony/ discovery.  Docs prepared in reas partic. in lit. protected unless subst. need (if Opinion WPD, requires extraordinary circs: reveals strategy).
ii)       Defeat by: disclosure (on purp/accident) or substantial need.
2)      Rest: Duty not to reveal, and safeguard by not using/disclosing if reas. prospect by doing so, will affect mat’l interest of client.  MR (blunt): Don’t reveal info related to representation.
3)      Miscellaneous:
a)      Can get ethical advice from ao firm’s atty, but use hypos.
b)      Withhold dead person info in A-C (fed only).
c)       Inadvertent disclosure: Promptly notify sender.  Need do nothing else (may use).
 
Prob. 7: Client expects suit from home buyer, 1) told you was warned by old buyer may flood in heavy rain.  2) You interviewed old owner (commented on cred on paper).  3) cocktail party: said oyur client in finan. trouble.  Are sued, demands interview notes.  Are asked of finan status.
1)      A-C Priv: client’s convo w/ you (not info).  Hypo: if listened in on, still priv (about reas. expectations).
2)      Dead owner intrview/ atty notes on: Op WPD: only reveal in extraordinary circs.   This prob qualifies
3)      Party: can’t reveal legal research info.  Agency law applies: duty to inform off. staff to safeguard
 
Class 5
2. Organizational Clients & Exceptions to the Duty of Confidentiality: Client is org.  Exceptions: prevent death/subst. injury or prevent harm to financ. interests of another.
Prob. 8: fert. producer. 
1)      mgr inaccurately reported sale of misplaced dangerous fert.: