Professional Responsibility Outline

Professional Responsibility – Harrison Fall ‘15
Foundations of Professional Responsibility
Malpractice v. Discipline
Malpractice—attorney’s actions were below the standard of care exercised by people in his field.
Purpose—compensate plaintiff
Action in a civil court
Discipline—expert testimony to prove attorney deviated from the Model Rules
Not automatically malpractice but can help prove.
Purpose—punish lawyer
Disciplinary actions are published in NY Law journal
Action in a tribunal
 
Resolving Tensions in the Lawyer’s Role
Zealous Advocateà lawyers are ethically and professional responsible for acting loyally and advocating zealously on client’s behalf.
Officer of the Courtà lawyers are 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 (Model Rules)
Ethics of the justice system
Ethics of adversaries
Ethics of the person or entity to be served (client)
 
Certain behaviors that are, at a minimum, to be expected of people of the occupation.
Special skills are required because clientshave no idea what they are doing.
“Special expertise and ethical responsibilities.” ABA Commission on Professionalism
“An occupation whose members have special privileges, such as exclusive licensing [monopoly] justified by these assumptions, that:
Practice requires substantial intellectual training and use of complex judgments;
Client trust based on inability to evaluate adequately the quality of service;
Client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both client’s interest and public good; and
That the occupation if self-regulating.
NY CPLR § 214(6)—3 year statute of limitations for malpractice case against professionals, but in medical malpractice limit is 2 ½ years.Breach of contract is 6 years.
Insurance agents and brokers don’t count.
 
In re Pautler (2002)
Neal refused to turn himself in for murder unless provided a public defender.  Deputy District Attorney Pautler pretended to be a public defender.  He advised Neal to turn himself in.  Neal listened because he believed he was being represented by an attorney.  The Court finally appointed Neal a real public defender but Neal fired him and got the death penalty.
Pautler tried to argue that there was an imminent public harm.He believed his actions were justified to apprehend a manic serial killer.He also argued that he never provided legal advice to Neal.
Colorado Supreme Court held that his actions are not justified because there was not an imminent public harm. Neal was negotiating his surrender and Pautler had options.
They said “even a noble motive does not warrant a departure from the Rules.”
Pautler was suspended for 3 months and received 12 months probation.
Takeaway=follow the rules of professional conduct.
When a lawyer is serving multiple roles: lawyers will have obligations and pressures to accomplish those jobs, those pressures should never be used to justify an abridgment of the core values of the legal profession à cannot base the fact that you have responsibilities as peace officer as the basis for lying
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulating Attorney Conduct
History of Model Rules
1908 ABA Canons of Ethics—first comprehensive attempt by the legal profession to regulate itself
Deliberately vague because drafters were worried that no code could particularize all the situations lawyers would face.
Enforcement was intermittent, haphazard, and often biased against solo and small firm practitioners.
1969 Model Code of Professional Responsibility
Three Sections:
Canons—described general professional conduct
Ethical considerations—aspirational
Disciplinary rules—set a floor for professional conduct
Too concerned with trial lawyers and not transactional/negotiators
Didn’t take into account large firm, multijurisdictional practice
No provision regarding subsequent representation adverse to interests of former client
1983 ABA Model Rules of Professional Conduct
Black letter rules with no explanatory comments.
Mandatory—must do; require disciplinary action when violated
Permissive—allowed to do; no disciplinary action when violated (just a guide)
Aspirational—speak to level of conduct lawy