Professional Responsibility Outline
Chapter 1: The Legal Profession: Background and Fundamental Issues
Are there too many lawyers today in the US? (Bok, page 2-3)
Law in the US is a graduate discipline, unlike the rest of the world.
In Japan, lawyers only have undergrad degrees.
Japan limits the number of people who can pass the bar exam. To be a “lawyer”, you must be certified to practice at the high court level – this is a very narrow definition.
There are many people who major in law in Japan, but they are not all lawyers – they are involved in other dispute resolution areas and just do not have the title of lawyer.
The US has a much broader definition of “lawyer”
Read thinks there are vast unmet legal needs in our society
Affordability of legal services
Knowing where to go to get legal services
Overlawyered areas (maldistribution)
Big firm practice
Living in certain geographic areas after law school
History of Codes
George Sharswood’s Lecture – 1887
Developed canons of conduct to which lawyers should aspire
Alabama was first state to adopt these
ABA Canons of Ethics – 1908
ABA developed standards for legal education and bar requirements for lawyers
ABA developed the Canons, which was the only thing that controlled the conduct of lawyers until 1969
The state S/Ct in many states adopted these Canons to regulate conduct of lawyers in their state (ABA is a private organization).
California is the only state where the legislature regulates conduct by lawyers.
After Watergate, the ABA required law schools to teach an ethics course to be accredited.
Code of Professional Responsibility – 1969
Made as a response to Watergate era
Organized around 9 Canons with two things below each Canon:
Punishment for not conforming to Canons
Model Rules of Professional Conduct
Drafted by Kutak Commission
Most states have adopted their own state version of the Model Rules
2003 modifications – SOX resulting from Enron (corporate lawyers)
All included in code book
Restatement of Law Governing Lawyers
Came out in 2000
Federal agencies claim power to control law conduct
SEC is example
States (S/Ct) adopt standard
Moral People vs. Moral Actions
Be true to yourself
Role Ethics vs. Common Ethical Standards
Pg 27 “The Innocent Client”
Lawyer knows her client is innocent and knows that a prosecution witness will testify against her client. She knows she can get a fake receipt that will prove her client was somewhere else when a murder was committed. What should she do?
Would file the document b/c greatest good is to keep someone from getting executed
Would not file the document b/c best for the rest
Would not file the document
Would file the document
How do you react?
Utilitarian (greatest good for greatest number)
Look at act that is greatest good
Look at rule that is greatest good
Deontological (fundamental duty – what is right/wrong under all circumstances)
Duty based on general principles of moral responsibility
Right rule under all circumstances
What does a concept of professionalism do?
See Kohlberg’s Six Stages of Moral Development
Follow the rules
If you take care of me, I’ll take care of you
Conform behavior to something you think others will approve of
Respect for authority (courts and other legal institutions)
Morality of democracy – decide what is good or bad and try to get society of change
Person chooses to follow “universal ethical principles” – must be self chosen
Chapter 2: Regulation of the Legal Profession
Problem 1: Admission to the Bar
a. Overview of the ABA – The key regulatory power is the state supreme court. The ABA does not regulate anything (it is a private body), but their interest is so pervasive that they compose the rules, the state courts adopt them, and then the court delegates these powers to the state bar association. The state bar examiners have the power to process bar applicants.
b. Character Requirement
i. Character – in the bar application have to disclose all information about yourself. Purpose:
1. Protect clients from abuse
2. Safeguard the public from having criminal attorneys
3. Collective interest among the lawyers to be held in high repute. Want to maintain the dignity of the field.
4. Uphold personal prestige and own social standing
ii. MR 8.4 – MISCONDUCT
1. 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 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.
2. Analysis of Model Rule 8.4 – it shows what the bar is interest in.
a. “commit a criminal act” – They will defer discipline until court finds you guilty, then disbarred. They also therefore have a legitimate interest in those that have committed criminal acts prior to applying to the bar.
b. “dishonesty, fraud, deceit, or misrepresentation” – very broad language; can be suspended or disbarred for any of the above
c. “conduct” – gives the bar very far latitude about your background. If you have cheated in law school, have you committed a crime? Purpose – Want to know about your past to predict your future.
d. “engage in conduct that is prejudicial to the administration of justice” – ex) cant promise someone that you have it good with the judge.
a. Burden – When you are asking to be admitted, the burden is on you to prove that you have good character and fitness. If you violate one of these standards while practicing, the burden will probable shift to the state
b. Applicant cheated on the law school test during third year.
1. Bar is interested because of the importance of proximity
ii. He then denied it.
1. Bar is interested because they want to know about your present level of candor. Lying about covering up is much more serious than just cheating.
iii. He had a marijuana convention and then changed his name.
1. The conviction was as a freshman in college – it would raise there eyes, but more than likely wouldn’t affect it – BUT he changed his name to prevent them from finding the conviction, so more serious.
c. Man took money out of the advocacy fund and later returned it for family medical expenses. Went through the school disciplinary process and the school still supported his admission, but bar denied.
d. Man denied admission even though he pled guilty to insurance fraud and then went to law school. They said he was not candid about his criminal history – then did volunteer time and was completely candid about it. Denied.
e. In Florida, had loans then three days before graduation he declared bankruptcy (which is a legal process and available to anyone.) FL bar denied him. Said it was for his lack of moral responsibility to the creditors. 8.4(d).
f. Common Theme – if it is a crime or incident that involves money, the bar is going to be very sensitive to it.
c. Candor in the Admissions Process – MR 8.1
i. Obligation of Applicant:
1. Candor may help out “character”
a. Plagiarism in law school, confessed, went through school disciplinary process – the bar is human and understood circumstances.
b. Shoplifted, lied in law school application and then told the truth when applying to the bar. Partial honesty, the longer you keep the secret then the harder to get in. past act = predicting your future.
ii. Obligation of Lawyers:
1. RULE 8.1 – Bar Admission and Disciplinary Matters 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 b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or 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.
2. A lawyer can not go forward and make a false statement, but if he is representing the applicant, under 1.6, he cant disclose it because of client privilege, however he cant make a misrepresentation about it if asked by the bar.
iii. Obligation of Law School:
1. If there is any matter of disciplinary action it should be disclosed
d. Fitness Requirement – Education and Knowledge
i. Fitness – are you competent to carry out the law? Bar looks to:
1. ABA Accreditation – if not accredited, not admitted. Bar wants to make sure the facility was conducive to study so that you are fit to practice law by means of the education you received.
ii. Why so hard on Foreign Educated Lawyers?
a. Most states just don’t let them in – but with globalization, it may not last that long. Bar worries because everyone but us and Canada allow undergraduate law degree.
Problem 2: Lawyer Discipline
e. What conduct subjects a
Criminal case malpractice suits– the majority rule is that unless the conviction is reversed and the convicted client can prove his factual innocence, you can not claim an action against the lawyer. Why is the standard so high on a criminal case? There would be an open parade against lawyers anytime that the lawyer’s client was guilty. Have to prove that an innocent person was convicted.
ii. To other people than your clients?
1. To prospective clients in which you reveal confidential information
a. i.e. Failure to tell the person that the statute of limitations is about to expire
2. Trustee and beneficiary problems where what you do harms the beneficiaries (wills, trusts).
3. Bad opinion letter in investigating facts and reports.
g. Proving a Malpractice case
i. Use of expert testimony – set the standards with those that are in the same field. Attorneys can be expert witnesses in a similar case. What would a reasonable prudent lawyer do under same/similar circumstances?
ii. Role of model rules
1. Act as a standard.
a. If someone falls below the Standards of care (the green book) that is not negligence per se. But a violation of a rule should not itself give rise to a cause of action, or even create a presumption that a legal duty has been breached, but nevertheless a violation of the rule may be evidence of a breach.So if you violate, it doesn’t mean per se that you created malpractice, but it may be evidence that you did so. It is some evidence. So the rules bear on the conduct of the attorney.
2. Elements of Mallen and Smith test
a. Employment of attorney
b. Failure of attorney to exercise ordinary skill and knowledge of reasonably prudent attorney under the circumstances, and
c. Such negligence was proximate cause of damage to P.
iii. Causation (the suit within the suit)
1. Client is dissatisfied and brings the action. Second suit is essentially retrying the first case to see if the attorney’s behavior caused the underlying cause of the harm. Hardest part to prove.
h. Malpractice remedies: Advance Waivers
i. If you write in waivers, the sympathy will go to the client since they may not know what it is that they mean.
ii. MR 1.8(h)(1)(2)
1. A lawyer shall not: (1) make an agreement prospectively limiting the lawyers liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek advice of independent legal counsel in connection therewith.
2. 1.8(h)(1) – general subject is conflicts of interest. A lawyer shall not limit the clients liability of malpractice unless you are independently represented. Tell them that you made the mistake, put it in writing, and tell them they have a right to seek independent counsel to decide the settlement offer.
iii. Standard tort rememdy
1. If you prove you lost case b/c of lawyer, you get normal compensatory damages.
2. Punitive damages can also be recovered like normal tort law
iv. Fee forfeiture
1. Can recover fees even if no damage from misconduct (does this mean client or attorney? Verify!)
i. Other Consequences of Negligence or Misconduct by Lawyers
i. Lawyer can be disciplined in other ways than formal discipline or malpractice suits. Other means:
1. Contempt – class example of two attorneys fighting while in session
2. Criminal Charges – you cannot assist your client in committing a crime
General Legislation, e.g. Fair Debt Collection Act – still have to follow