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Ethical Lawyering
SUNY Buffalo Law School
Milles, James G.



Part I: Regulation of the Legal Profession…

I. The Regulation of Lawyers

a. Law is self-regulated profession, governed largely by members bec of their respected status & unique role in society

b. Institutions that regulate lawyers:

i. Highest state courts:

1.Role of institution in regulating lawyers:

a. Inherent powers doctrine àStates’ highest courts have inherent power to regulate lawyers

(i) With respect to ethical & procedural rules that govern lawyers, the courts make most of the rules, implement the rules, interpret the rules, enforce the rules, & hear challenges to the validity of those rules.

(ii) Courts need to be able to govern the conduct of those who appear before them.

2.Performs the following roles:

a. Adopts ethics codes & court procedural rules that govern lawyers;

b. Sets & implements standards for licensing lawyers, including educational & moral character requirements;

c. Supervises agencies that investigate & prosecute complaints of unethical conduct by lawyers; &

d. Supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.

ii. State & local bar associations

1.Role of institution in regulating lawyers:

a. States’ highest courts delegate some functions to bar associations.

b. Integrated or unified bars à Membership in the state bar association is mandatory in some states

c. Although, each state may have many voluntary bar associations, in addition to mandatory state bar one must join in order to obtain a license to practice law in one’s state of choice.

2.Ex: of regulatory function:

a. Administer bar exams.

b. Some run disciplinary agencies.

c. Advisory ethics committees write opinions interpreting ethical rules.

iii. Lawyer disciplinary agencies

1.Bear the responsibility for investigating and prosecuting misconduct that violates the state ethics code.

2.Possible sanctions include disbarment, suspension, and public or private reprimand.

3.These agencies are usually run by

a. The highest court in the state,

b. By the state bar association, or

c. By the court & the state bar.

iv. American Bar Association

1.Is a private nonprofit membership organization funded in 1878.

2.Each ABA member pays an annual membership fee.

3.The ABA ethics rules, called the Model Rules of Professional Conduct (MRPC) à have no legal force unless adopted by the relevant governmental authority, usually a state’s highest court.

v. American Law Institute

1.Is a private organization of 3,000 judges, lawyers, & law teachers that produces summaries of the law called R2d.

2.The R2d includes black-letter rules, which often summarize the rule followed in a majority of jurisdictions.

3.The comments in the R2d usually note the discrepancy & explain why the authors of the R2d take a different position.

vi. Federal & state courts

1.Set rules for the conduct of lawyers in litigation, sanction lawyers who violate those rules, rule in malpractice & other cases, & hear & decide motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.

2.Each federal district court and court of appeals requires lawyers to be admitted to practice before it.

vii. Legislatures

1.Adopt constitutions & statutes, including criminal laws, banking laws, securities laws, & so on, that apply to everyone doing business in the state, including lawyers.

viii. Administrative agencies

1.In general, lawyers admitted to practice in any state may appear before an agency of that state, & before any federal agency, without a separate admission to practice before the agency.

2.Many agencies have special ethical or procedural rules.

ix. Prosecutors

1.Prosecutors are no longer reluctant to charge & prosecute lawyers as defendants.

x. Malpractice insurers

1.Insurance companies sell malpractice insurance policies to lawyers and law firms, but these companies also “regulate” the lawyers they insure.

2.“Risk management” & “loss prevention” measures à are designed to reduce the likelihood that a lawyer or a law firm will be held liable for malpractice. Many of these policies promote compliance w/ ethical rules. These rules form body of “private law” that governs lawyers who contract w/ those companies.

3.Some insurers conduct audits to verify compliance with conditions of the insurance contracts.

xi. Law firms and other employers

1.Many employers have their own additional rules of practice.

xii. Clients

1.Role of institution in regulating lawyers:

a. Many clients (especially government agencies and large corporations) impose rules of conduct on the lawyers they employ.

2.Ex: of regulatory function:

a. Prohibit block billing.

b. Disallow billing for a time of a second or third lawyer at a deposition.

c. Use auditors to monitor the work of lawyers.

c. State Ethics Codes – Most important source of guidance for lawyers about ethical obligation

i. The primary functions of all state ethics codes are:

1.To guide lawyers in evaluating what conduct is proper in various situations, and

2.To provide a basis for disciplining lawyers who violate the rules.

3.**They contain a few clear prohibitions, but mostly provide general guidelines only.

ii. Important code drafted by ABA is the Model Code of Judicial Conduct, which sets out ethical rules for judges.

iii. Various bar organizations have recommended standards of conduct for lawyers in particular practice areas.

d. Admission to Practice

i. In most states, the rules for admission are establishes by the state’s highest court. In most states, the basic requirements for bar admission are:

1.Graduation from an accredited undergraduate college (usually required for admission to law school);

2.Graduation from a law school that meets the state’s educational standards (this usually means one accredited by the ABA);

3.Submission of an application for admission to the bar;

4.A finding that the applicant is of good moral character and is fit for the practice of law; and

5.A passing score on the bar examination administered by the state.

ii. Once admitted to the bar of a state, a lawyer must comply with various requirements to maintain his admission, including:

1.Completion of a certain # of hours of continuing legal education every year,

2.Payment of annual dues,

3.Membership in a state bar association, &

4.Compliance w/ any requirements to maintain or submit records relating to operation of a law office.

iii. If a lawyer seeks admission to litigate only one case in a separate state or federal jurisdiction, the lawyer may be admitted pro hac vice by association w/ a lawyer admitted in the state.

iv. The character and fitness inquiry:

1.Whether the applicant will practice law in an honest and competent manner.

II. Lawyer Liability

a. The potential claims against lawyers can be divided into disciplinary claims, civil claims, & criminal claims.

b. Professional Discipline

i. In most states, the highest court runs the disciplinary system.

ii. How a disciplinary case proceeds:

1.Complaint by client or by a lawyer.

2.Bar counsel investigates complaint.

3.Charges are filed if warranted by investigation.

a. Otherwise, if complaint does not warrant charge à file closed.

4.Hearing committee conducts hearing, makes factual findings, recommends sanction.

5.Hearing committee decision received by judicial agency &/or by highest state court. Reviewing body makes final decision on sanction.

iii. Common conduct leading to discipline:

1.Misappropriating client funds.

2.Comingling law firm & client funds.

3.Missing court-filing deadlines.

4.Failing to respond to client communications.

5.Committing mail fraud and tax evasion.

6.Neglecting client cases (often because of substance abuse problems).

7.*Most ethical rules impose requirements on the conduct of law practice, but a lawyer also may be disciplined for any conduct that is dishonest or prejudicial to the administration of justice or that reflects lack of fitness or practice, such as domestic violence, failure to pay child support, or drunk driving.

8.*Many lawyers who have held high public office have been disciplined for misconduct that related to their performance of their duties as public servants.

9.*Like lawyers who hold public office, law professors and deans occupy roles in which they are expected to set an example for other lawyers, and may be disciplined for conduct that occurs at a law school, such as plagiarism, neglect of teaching responsibilities, manipulations of grades, aggressive or discriminatory behavior, and dishonest behavior.

Model Rule 8.4 – Misconduct****

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate MRPC knowingly assist or induce another to do so, or acts of another

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Comment [2] à Lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice, including:

§ Violence, dishonestly, breach of trust, or serious interference w/ the administration of justice

§ A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation

Model Rule 8.3 – Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct …. “ “

(c) Rule does NOT require disclosure of info otherwise protected by Rule 1.6 or info gained by a lawyer or judge while participatin

wyer relationship.

2.A lawyer may take on other fiduciary roles other than that of legal representative…

a. Broker.

b. Escrow agent.

c. Expert witness.

d. Executor.

e. Mediator.

f. Trustee.

3.ELEMENTS of a claims of breach of fiduciary duty:

a. “But for” lawyer’s misconduct, P would have obtained a favorable judgment or settlement in case, which lawyer originally represented client or P suffered some other compensable harm

4.R3d § 49 à Lawyer is civilly liable to client if breaches fiduciary duty to client set forth in § 16(3) & if that failure is a legal cause of injury

iii. Other civil liability of lawyers:

1.Advising or assisting unlawful client conduct.



4.Intentional Infliction of emotional distress.

5.Violation of regulatory statutes.

6.Breach of contract.

iv. Disqualification for conflicts of interest

1.Another substantial body of “lawyer law” consists of the judicial opinions resulting from motions to disqualify lawyers bec of conflicts of interest. These motions are often made by opposing counsel rather than by the lawyer’s own clients.

d. Criminal Liability of Lawyers

i. Lawyers are supposed to be “officers of the court” & guardians of our legal system, & in recent years, many have been indicted, convicted, sentenced, & disbarred for dishonest professional conduct that might not have had significant professional consequences 20 years ago.

e. Client Protection Funds à State-sponsored programs designed to reimburse clients whose lawyers stole their $.

i. Majority of states fund programs by collecting an annual fee from each lawyer (varies from $12 to $110).

ii. Many programs reimburse only a fraction of the valid claims that are submitted to them. Each fund has guidelines that set a max reimbursement per claim or a max amount of reimbursement per dishonest lawyer.

iii. Many programs regularly file suits for reimbursement against lawyers whose clients’ claims have been paid by the client protection funds. In the case where a lawyer cannot be found, may include filing suit against potentially responsible 3rd partier, including former partners, banks, title insurance companies, & other.

Part II: The Duties of Lawyers…

III. The Duty to Protect Client Confidences

a. The Basic Principle of Confidentiality

Model Rule 1.6(a) – Confidentiality of Information (Confidentiality = duty owed to the client)

A lawyer shall NOT reveal info relating to representation of a client unless client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

Comment [3] à Principle of client-lawyer confidentiality is given effect by related bodies of law: (1) Attorney-Client privilege, (2) Work Product doctrine, (3) Rule of Confidentiality.

§ Attorney-Client privilege & Work Product doc à Apply in judicial & other proceedings, which a lawyer may be called as a witness or otherwise required to produce evidence concerning the client.

§ Rule of Confidentiality à Applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

Comment [4] àParagraph (a) prohibits a lawyer from revealing info relating to the representation of a client. This prohibition also applies to disclosures by lawyer that do NOT in themselves reveal protected info but could reasonably lead to discovery of such info by a 3rd person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood the listener will be able to ascertain the identity of client or situation involved.

NY Rule 1.6 – Confidentiality of Info à “Confidential info” consists of info gained during or relating to the representation of a client, whatever its source, which is

(a) Protected by the attorney-client privilege,

(b) Likely to be embarrassing or detrimental to the client if disclosed, or

(c) Info that the client has requested be kept confidential.