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Legal Ethics
SUNY Buffalo Law School
Milles, James G.

LAW564 Legal Ethics and Decision Making Outline
Milles_LegalEthics_Fall_2011
I. Introduction
·         Lawyers frequently violate the ethical rules of professional responsibility
·         The courts regulate the profession of law in each particular state
o   A bar committee then does a fact-finding investigation leading to a recommendation to the highest court of the state of what to do
·         Law schools are required to report everything to Bar Associations
The Case of Alton Logan
·         The Attorneys: divulging about their client’s crime can result in disbarment due to attorney-client privilege (confidentiality)
·         The Attorneys decided not to come forward with evidence that their client killed the security guard thus an innocent man served 26 years in jail
Mental Health Issues
·         Rose Gower was admitted to a mental hospital when she was in high school
·         The Bar Committee asked her a lot of questions about her state of mind even though she got treatment and had felt good mentally for years
In re Mustafa
·         Mustafa used SBA money while President in law school and intended to pay back the sums of money
·         While as an attorney Mustafa used client’s money with the plan of paying it back
 
II. The Regulation of Lawyers
·         The legal profession is largely self-regulated
·         In most states the highest court of the state, is responsible for adopting the rules of conduct that govern lawyers
·         The highest court in each state is also responsible for enforcing its rules by disciplining lawyers who violate them
·         Some courts delegate lawyer regulatory functions to state bar associations
·         Lawyer disciplinary agencies (bar counsel’s offices) bear the responsibility for investigating and prosecuting misconduct that violates the state ethics code
·         Sanctions could include disbarment, suspension, and public or private reprimand
·         ABA ethics rules are called the Model Rules of Professional Conduct = no legal force unless adopted by the relevant governmental authority i.e. state’s highest court
·         The American Law Institute wrote the Restatement (Third) of the Law Governing Lawyers, which summarizes the rules of law that govern lawyers – it includes rules about malpractice liability, disqualification of lawyers for conflicts of interest, and ethical rules for violation of which a lawyer may be subject to discipline
·         Trial courts can sanction lawyers who violate the rules, a judge who becomes aware of lawyer misconduct may sanction the lawyer directly under the federal or state civil procedure rules
·         Malpractice insurance for lawyers usually entails a strict procedure so that the firm isn’t likely to be held liable for misconduct
·         The primary function of state ethics code 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 – courts also consult the ethics code in determining whether to discipline the lawyer
III. Lawyer Liability
          Professional Discipline
·         Model Rules of Professional Conduct (MRPC) is the governing rule…not the Model Code
·         The potential claims against lawyers can be divided into disciplinary claims, civil claims, and criminal claims (Misconduct Rule 8.4)
·         A lawyer found to have violated one or more provisions of the state ethics code may lose her license to practice law, ordered to cease practice for a period of time, or receive a reprimand or some other lesser sanction
·         The most states the highest court runs the disciplinary system. An independent office set up by the court uses paid staff attorneys to investigate and prosecute charges against lawyers. If a disciplinary agency thinks that a complaint against a lawyer appears warranted, it first presents the case to a hearing committee. The committee hears evidence, makes findings of fact, and recommend sanctions. The recommendations of hearing committees are then reviewed by a judicial agency and/or by the state’s highest court. Final decisions on sanctions are made by the state’s highest court.
·         A lawyer may be disciplined for violation of the applicable ethics code whether or not the violation occurs in the course of law practice
·         Lawyers have been disciplined for domestic violence, failure to pay child support, drunk driving, etc.
·         Many lawyers who held high public office i.e. Nixon disbarred as US President, have been disciplined for misconduct that related to their performance of their duties as public servants
·         Because lawyers are officers of the court and are expected to display exemplary integrity, respect for the law, and respect for the legal system, disciplinary agencies tend to be vigilant in prosecuting misconduct by lawyers who are in highly visible positions of public trust
·         A lawyer may be disciplined for the commission of any criminal act that violates an ethical rule or that reflects dishonestly, untrustworthiness, or lack of fitness to practice
·         A lawyer may be disciplined for the act even though no criminal charge is filed or the lawyer is acquitted of a charge in a criminal proceeding
·         If a disciplinary action is filed based on conduct that is subject of a pending criminal charge, the disciplinary action usually is stayed until the criminal proceeding is concluded
·         The lawyer may be disciplined for violation of the rules regardless of whether the violation occurs in the state in which the lawyer is admitted
·         A lawyer who is admitted in more than one state must report to the other states where she is admitted if discipline is imposed in one of the states
·         A lawyer who is sanctioned in one jurisdiction often receives the same sanction in any other jurisdictions where the lawyer is admitted
Reporting Misconduct by Other Lawyers
·         A cornerstone of the disciplinary system is the duty of lawyers to report serious misconduct by other lawyers, and the issue of whether an act must be reported comes up often in the analysis of other ethical issues (Misconduct Rule 8.3)
·         An important aspect of the lawyer self-regulatory system is that in most states lawyers are obliged to report other lawyers’ misconduct to the disciplinary authorities (Rule 5.1)
·         Most states require lawyers to report serious misconduct that is not confidential
·         The Restatement and most of the states ethics code do not require lawyers to report every violation of an ethical rule by another lawyer; they must report only those that raise “a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” – the duty is triggered by a lawyer’s “knowledge” of another lawyer’s misconduct, the standard for assessing knowledge is objective
·         The reporting rule requires every lawyer to report serious misconduct by any other lawyer, whether the other lawyer is an adversary, a partner, a boss, or in some other relationship
·         The only exceptions from the reporting rule are for (1) information protected by the confidentiality rules (Rule 1.6) and (2) information learned in the course of service on lawyers’ assistance program (help for alcoholism, depression)
·         A lawyer who fails to report serious misconduct by another lawyer may be subject to discipline à In NY wrongful discharge suits are permitted by whistle-blowing protection
·         The ethics code impose a limited amount of collective responsibility on other lawyers in the firm or other organizations for the conduct of other lawyers and of non-lawyer employees
·         The law does not allow discipline of all lawyers in a firm, or even of all the partners, if one of the firm’s associates violates a disciplinary rule. Supervising lawyers are liable for the unethical acts of lawyers they are supervising if they direct the act or know of the proposed act and do not prevent it
·         Subordinate lawyers may be held accountable for unethical actions that they were ordered to undertake if the supervisor’s instruction was not based on a “reasonable resolution of an arguable question of professional duty”
·         Most associates at law firms are employees at-will thus they do not have contracts for terms of years but may resign at any time for any reason or may be fired at any time for any reason
·         Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer), Rule 5.2 (Responsibilities of a Subordinate Lawyer), Rule 5.3 (Responsibilities Regarding Non-lawyer Assistants)
Civil Liability of Lawyers
Legal Malpractice
·         L

ust be protected as confidential are:
o   All matters relating to the client’s case except information generally known
o   Personal information about the client that the client would not want disclosed
o   Information obtained from the client by interviews, documents, etc.
o   Information acquired before representation i.e. consultation and after representation terminates
o   Notes or memoranda that the lawyer creates relating to the matter
·         The purpose behind the confidentiality rule is to facilitate open communication between lawyers and clients. Lawyers need accurate and complete information from their clients to represent them well
·         The Restatement has a permissive standard barring revelation of client information if there is a “reasonable prospect” of harm to the client
·         Rule 1.6 (b) a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary
o   1.6 (b)(1) to prevent reasonably certain death or substantial bodily harm
o   1.6 (b)(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (preventing a crime or fraud)
o   1.6 (b)(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (resolving the effects of the crime)
o   1.6 (b)(4) to secure legal advice about the lawyer’s compliance with these rules
o   1.6 (b)(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the lawyer was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
o   1.6 (b)(6) to comply with other law or a court order   
Exceptions to the Duties to Protect Confidences
·         The risk of future injury or death: the rule allows a lawyer to reveal confidential information to prevent reasonably certain death or substantial bodily harm. It doesn’t matter whether the act will be committed by the client or someone else. What matters it the degree to which the lawyer believes the harm will occur.
 
Client Frauds and Crimes That Cause Financial Harm
 
·         The ethics rules and other laws permit lawyers to reveal a client’s frauds and other financial crimes. These rules evolved from the principles that lawyers should not advise or assist their clients to commit crimes or frauds.
·         Rule 1.2 (d) a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent
·         a lawyer who assists a client fraud or participates in making material misrepresentations could face civil, criminal, or disciplinary liability for his role in the criminal or fraudulent action
·         Fraud? Fraud refers to deliberate deception but Rule 1.0 (d) defines fraud as “conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive” à it is not necessary that anyone suffered damages or relied on the misrepresentations or failure to inform