Professional Responsibility
Professor Harrison
Fall 2015
Final: 3 hour exam; Part MC Part Essay (60%)
Notes, highlighting, tabs all OK.
Professional Responsibility Outline
Foundations of Professional Responsibility
I. Why Pro Ro?
To maintain the image of the profession
To teach us the rules by which we shall be governed and guided for the rest of our legal careers
To prepare us for the ethical dilemmas we will face in practice (primary goal of the course)
II. Three Basic Goals of the Course:
1. Keep you from getting sued
A violation of the Model Rules does not by itself give rise to a cause of action for malpractice
Malpractice action v. disciplinary action:
1. Malpractice Action (civil ct)
A lawyer’s client (former client) brings the case against the attorney.
The purpose of a malpractice suit is to compensate an injured plaintiff (client).
In professional liability case, a plaintiff must bring in expert testimony to show how an attorney deviated from the generally accepted standard of conduct: reasonable lawyer standard
2. Disciplinary Action (tribunal: specifically to Appellate Divisions)
Action against an attorney brought by the state
Grievance committee of the Appellate Division gets a complaint and decides whether or not they will investigate.
The goal of a disciplinary action is to punish the attorney and to protect the public
A lawyer is subject to disciplinary action for all unprofessional and unethical conduct from the state bar
2. Keep you from getting censured, suspended or disbarred
Disbarment is professional death
3. Keep you out of jail
III. Lessons of the Guliano Story
Lawyer who got involved in political corruption.
If people are justifying on the basis of “Others are doing it” – immediate red flag
Always assume that everything you’re doing will be scrutinized
Be wary of the toxic boss (when boss is center of the problem you must extricate yourself)
When being investigated, always cooperate, and always tell the truth
IV. Ethical Tensions
1. Vince Lombardi Doctrine v. Superman Principle
Conflict:
1. Lombardi –
“Winning isn’t everything. Winning is the only thing.” – Vince Lombardi
2. Superman –
Truth, Justice, and the American way. – the Superman Principle
2. Striking the Balance: Associates dilemma: representing 9 yr old little girl who is a quadriplegic after a career accident. D served motion for summary judgment except you miscalculated date that the papers have to be served. What is at stake: the case, your job, reputation, and possibly malpractice. What do you do:
1. Zealous Advocate
Ethical, professionally responsible attorneys, acting loyally, even zealously, on our client’s behalf
2. Officer of the Court
Human beings with strongly held personal beliefs regarding morality
3. Ethical Systems Influencing a Lawyer:
1. Ethics of the person or entity to be served (client)
2. Ethics of adversaries
3. Ethics of justice system
4. Personal ethics
5. Organization, culture, and ethics of the firm
6. Culture and ethics of the profession itself
V. Professionalism
Defining Professionalism:
1. ABA Commission on Professionalism:
A professional is one who has “special expertise and ethical responsibilities”
2. Dean Roscoe Pound (Harvard Law School):
“…the practice of a learned art in the spirit of a public service…”
3.Professionalism: Friedson
An occupation whose members have special privileges, such as exclusive licensing (monopoly), justified by these assumptions, that …
d by counsel
Pautler – 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
Pautler – Appeal Outcome
Colorado Supreme Court held:
Pautler’s actions were not justified.
“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.
“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 the court started making exceptions, that would lead to distrust for the criminal justice system.
Result:
Pautler was suspended for 3 months and was required to take 20 hours of classes on ethics and retakethe MPRE Exam
Balance of Issues: As a person to protect safety, as an officer of the court to act ethically
BUT, duties as a lawyer should trump other duties (including as a peace officer)
Need to be careful about making exceptions, once you do, especially about honesty, it becomes easy to expand those exceptions
By allowing lawyers to be deceptive, the image of the legal profession can only be harmed
Any deviation from lawyers code could erode trust
