Professional Responsibility
Professor Harrison
Summer 2014
CHAPTER 1: INTRODUCTION TO PROFESSIONAL RESPONSIBILITY
Goals of the Course:
1) Keep you from being censured, suspended, or disbarred
2) Keep you from getting sued (tort action)
3 differences b/w these 2:
1) Where trial occurs, tribunal or civil ct
2) Diff in adversary, state bar or former client
3) `Purpose, punishment/protection or compensation
No direct relationship between the Model Rules and malpractice, Rules would be used as evidence
3) Keep you out of jail
Vince Lombardi (winning isn’t everything it’s the only thing) v Superman (truth, justice and the American Way)
Hypo: You are working on a case, 9 year old girl who’s now a paraplegic after an accident. Big Case= lots of damages= lots of fees. D serves on you a motion for summary judgment. You prepare your opposition, its good but there was a miscalculation and the papers weren’t served in time. Judge is a stickler for details + deadlines. If you default, good chance the judge dismisses the case. You go to another attorney who tells you to misrepresent the date on the envelope so it’s not late. What do you do?
· Side 1, Don’t Do it: Girl won’t get the help she needs, you’ll be fired, firm will be harmed
· Side 2 Do it: You’re lying
Striking the Balance:
Zealous Advocate: ethical, professionally, responsible attorneys, acting loyally, even zealously on our client’s behalf
v.
Officer of the Court: human beings with strongly held personal beliefs regarding morality
Ethical Systems Influencing a Lawyer:
· Personal Ethics
· Organization, Culture and Ethics of the Firm
· Culture and Ethics of the Profession Itself
· Ethics of the Justice System
· Ethics of Adversaries
· Ethics of the Person or Entity to be Served (Client)
Professionalism Defined
· Law is a learned profession
· Pass the bar, admitted to the bar, given a license
· Always put the clients interests before his own interest
· Trust
ABA Commission on Professionalism: “Special expertise and ethical responsibilities”
Dean Roscoe Pound (Harvard Law School): “…the practice of a learned art in the spirit of a public service…”
Friedson:
· An occupation whose members have special privileges, such as exclusive licensing (monopoly), justified by these assumptions, that…
o Its practice requires substantial intellectual training and the use of complex judgments
o Since clients cannot adequately evaluate the quality of the service, they must trust those they consult
o 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, and
o The occupation is self-regulating
Learned professions are occupations where the professionals receive their license based on a promise that they will not abuse those licenses (Core is trustworthiness)
In Re Pautler (Brief in Notes):
William Cody Neal
· Brutally killed 3 women
· Left another kidnap/rape victim alive with explicit instructions to call the police and page
· Spent hours on the phone bragging to police. Claimed he’d killed hundreds, and would kill again
· Refused to turn himself in unless provided a public defender
Mark Pautler- Deputy DA
· Saw Neal’s grisly murder scenes as part of the investigation
· Police asked him to find a specific attorney requested by Neal
· This attorney was unavailable, but no one notified the PD
· Pautler used a pseudonym (Mark Palmer) and pretended to be a Public Defender
· As Palmer, Pautler agreed to fight for the terms Neal set for his surrender, and advised Neal to turn himself in
· Neal did so, believing that he had an attorney
· Neal was appointed a real Public Defender by the Court, but was confused about what happened to his “first” lawyer
· When Neal was assigned a real public defender, he found out that Mark Palmer wasn’t real and that it was Pautler
· The new Public Defender alerted the Court to Pautler’s deception
· Neal got the death penalty
The Colorado Attorney Regulation Counsel found that Pautler violated:
Rule 8.4(c)- engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and
Rule 4.3 – dealing with a person who is not represented by counsel
Appeal:
· Argued that his actions were justified to apprehend a maniac serial killer
· Attempted to create an exception to 8.4 (c) for situations involving “imminent public harm”
Argued that he never gave advice to Neal
Col S Ct held:
· Pautler’s actions were not justified
o “Even a noble motive does not warrant a departure from the Rules of Professional Conduct.”
· There was no “imminent public harm.” Neal was negotiating his surrender and Pautler had options
o “When presented with choices, at least one of which conforms to the Rules, an attorney must not select an option that involves deceit or misrepresentation.”
· Pautler purported to represent Neal, and that is sufficient to violate Rule 4.3
· If Pautler is found not guilty- An exception could be created that would allow lawyers to act this way and would erode the public trust
Takeaways:
1) Conflicting Responsibilities don’t justify a departure from your obligations as a lawyer
2) If we start to make exceptions to the obligation of the code of honesty then it becomes easy to make holes for others
3) The image of the lawyers can only be harmed by situations where we permit deception in the course of our work
Always look to the rules of professional conduct
Model Rules of Professional Conduct – History
1908- ABA Canons of Ethics
· “[n]o code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life.”
· No direct regulatory consequences
· Enforcement was intermittent, haphazard, and often biased
1908 ABA Canons of Ethics – Criticisms
· Designed for an earlier era
· Glittering generalities
· Vaporous platitudes
1969 Mode Code of Responsibility: 3 Parts
· Canons- described general professional norms
· Ethical Considerations- aspirational
· Disciplinary Rules- set a floor for professional conduct
1969 Model Code of Professional Responsibility – Weaknesses
· Excessively concerned with trial lawyers
· Failed to take into consideration large firm, multijurisdictional practice
· Contained no provision regarding subsequent representation adverse to the interest of a former client
1983 ABA Model Rules of Professional Conduct
· Mandatory (must do)
· Permissive (allowed to do, not required)
· Aspirational (speak to a level of conduct a lawyer should strive to achieve)
Model Rules of Professional Conduct
· ABA does not discipline lawyers
· Model Rules are advisory only
· Model Rules have been adopted by 49 states (Not Cal)
·
or or on this occasion only” or “for that case only”)
Once admitted, most often court will require some association with local attorney to discipline (need to have someone they can punish)
In criminal cases, defendant does not have right to outside state counsel (discretion of ct)
Limited number of times an attorney can be admitted pro hac vice (not a set # limit)
No due process right to pro hac vice if denied
Must know all of the cts rules, no deference because you are an out of state attorney
5. Moral Standing/Character Questions:
Good Moral Character
Applicant has burden of proving good moral character as it is not presumed
Must disclose:
Convictions
Arrest
Must disclose if asked – cannot refuse to answer a question as to whether you were arrested on First Amendment grounds (even if you were arrested for speech)
Failure to disclose arrest, even as a juvenile, can be an independent basis for denying admission, even if arrest itself would not be a basis for denial (denial based on failure to disclose is commonplace)(1 of the biggest reasons why admissions to the bar fails)
Arrest/unsuccessful prosecution can be basis for denial
Cannot refuse to answer questions about arrest on First or Fifth Amendment grounds
Parking Tickets?
Do not need to disclose unless application asks elsewhere (can be a basis for denial even if not required to disclose and bar finds out)
Pay them! Because they can be evidence of fiscal irresponsibility/disrespect for the law
Florida – automatic, permanent ban for felony convictions; some states place a 5-10-year ban
Courts can deny admission if they view applicant’s activity, even if not illegal, as engaging in unauthorized practice of law or having disrespect for the legal sy stem
Even if speech was constitutionally protected
E.g., failed a class for not citing and NOT disciplined under school’s honor code –
If you don’t disclose because you were not disciplined under school’s honor code, and just failed the class
Denied – failure to provide relevant information can be basis for denial
If you disclose, but insist that rules were applied unfairly and that the incident has little significance in assessing character
Denied – not being sufficiently contrite can be basis for denial
If you disclose and apologize, noting the seriousness of the matter
Admitted
