PROFESSIONAL RESPONSIBILITY
ROBERT HARRISON
SUMMER 2015
June 6. Class 1
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
a. (Differences between these two)
i. Forum
ii. Adversary
iii. Purpose, punishment/protection, or compensation
iv. No direct relationship between
Reciprocal discipline – if you are admitted in NY and NJ and are disciplined in NJ you are subject to disciplinary action in NY. If you get a DWI in FL you could be subject to disciplinary action in NY.
Be clear of the differences of a legal disciplinary action and legal malpractice action. They are related but not one in the same. Three primary differences:
1. Forum
a. Disciplinary action: (where you’re subject to action because of the misconduct)
i. Grievence committee and the appellate committee (court)
b. Legal malpractice:
i. Civil court room
c. Very different procedures
2. Adversary
a. Disciplinary action:
i. State bar brings a charge against the lawyer
b. Legal malpractice:
i. Usually the lawyer’s former client brings suit against the lawyer
3. Purpose of the matter
a. Disciplinary action:
i. To punish lawyer for misconduct and protect the public
b. Legal malpractice:
i. To compensate a plaintiff for a wrong or harm done (damages)
How are they related? How do rules of professional conduct come into play when talking about legal malpractice matter?
· In a legal malpractice suit a legal malpractice expert will testify how the lawyer’s conduct violated the model practice rules.
· Violation of the rules will make them subject to disciplinary action, but in the malpractice action the expert will have to show the deviation from the standard that is in the model rules
· No lawyer is subject to a malpractice suit because they violated a rule of conduct it just will be used as evidence that there was malpractice.
Richard Giuliano
1. Lawyers should have a sense (red flag) whenever anyone tells you that whatever they’re asking you to do – that is wrong – and is justified by the excuse that everyone is doing it – should raise a flag.
2. Know that the decisions you make may be subject to scrutiny
3. Be conscious of associating with a toxic boss
4. Once subjected to scrutiny, its imperative to tell the truth
The Vince Lombardi Doctrine “Winning isn’t everything – Winning is the only thing”
Judicial Ethics and Representation of clients with diminished capacities are not covered here but ON the MPRE!
Striking the balance:
· Zealous advocate: ethical, professionally, responsible attorneys, acting loyally, even zealously on our clients behalf
· VERSUS
· Officer of the court: human beings with strongly held personal beliefs regarding morality
Ethical systems influencing a lawyer:
· Personal ethics
· Organization, culture, and ethics on 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)
·
Differences between this profession and others:
· Licensed
· Regulated
· Training
· Code of conduct
· Not for our own benefit
· ABA Commission on Professionalism: “Special expertise and ethical responsibilities”
· Dean Roscoe Pound: “…the practice of a learned art in the spirit of a public service…”
I. Professionalism
a. Definitions
i. Friedson
1. “An occupation whose members have special privileges, such as exclusive licensing (monopoly), justified by these assumptions, that….
· Its practices requires substantial intellectual training and the use of complex judgments
· Since clients cannot adequately evaluate the quality of the service, they must trust those they consult
· The client’s trust presupposes that the practitioners self-interest is over balanced by devotion to servicing both the client’s interest and the public good, and the occupation is self-regulating
ii. In exchange for membership privilege there is a pledge that the person will put their interest second – “We don’t care what you know until we know that you care”
b. Learned professions are occupations where the professionals receive their license based on a promise that they will not abuse those licenses
c. Learned profession is a caring occupation.
i. Obligations to the client
ii. Obligations to the court
iii. Personal interest
d. In re Pautler:
Facts:
Neal brutally killed three people with a hatchet.
Left another kidnap/rape victim alive with explicit instructions to call the police and page him when they arrived
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 District Attorney
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
In order to get Neal off the streets, 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
· We have to adhere to the rules with the understanding that outsiders won’t understand or appreciate that we are upholding the highest standards of our profession
II. Rules Governing the Practice of Law:
a. Duties of Lawyers to Clients:
i. Agency
ii. Fiduciary
iii. Loyalty and Diligence
b. History:
i. 1908 ABA Canons of Ethics
1. “No 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.”
2. No direct regulatory consequences
3. Enforcement was intermittent, haphazard, and often biased against solo and small firm practitioners
ii. 1908 Criticisms
1. Designed for an earlier era
2. Glittering generalities
3. Vaporous platitudes
iii. 1969 Model Code of Professional Responsibility (3 parts)
1. CANONS – described general professional norms
2. ETHICAL CONSIDERATIONS – aspirational
3. DISCIPLINARY RULES – set a floor for professional conduct
iv. 1969 Weaknesses
1. Excessively concerned with trial lawyers
2. Failed to take into consideration large firm, multijurisdictional practice
3. Contained no provision regarding subsequent representation adverse to the interest of a former client
v. 1983 ABA Model Rules of Professional Conduct
1. Mandatory
2. Permissive
3. Aspirational (speaks to the level of conduct a lawyer should strive to achieve)
c. Model Rules of Professional Conduct:
i. ABA does not discipline lawyers
ii. Model Rules are advisory only
iii. 49 States have adopted Model Rules
iv. New York became the 48th – Maine was the 49th
v. California is left out – womp
vi. When a state adopts the model rules they don’t always do so in its entirety
d. Extremely client oriented
i. Whenever there is a question of doubt the inclination always goes to the client
ii. Age-old Anglo American Tradition that American lawyers have always had toward their relationship with clients.
e. Remember:
i. ONLY the mandatory “lawyer must” then the lawyer is subject to disciplinary action
ii. Lawyer won’t be charged for violation of something in the comments
