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Professional Responsibility
Temple University School of Law
Myers, Eleanor W.

PROFESSIONAL RESPONSIBILITY OUTLINE – SPRING 2011 (Myers)
 
INTRODUCTION: RELATIONSHIP OF LAW, LAWYERS AND ETHICS
 
·         Preamble: A Lawyer’s Responsibilities
o   [1] A lawyer, as a member of the legal profession, is:
§  a representative of clients
§  an officer of the legal system, and
§  a public citizen having special responsibility for the quality of justice
o   [2] Representational Functions:
§  Advisor
·         As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications
§  Advocate
·         As an advocate, zealously asserts the client’s position under the rules of the adversary system
§  Negotiator
·         As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others
§  Evaluator
·         As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others
o   [3] Non-representational Function
§  In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter
·         Some of these Rules apply directly to lawyers who are or have served as third-party neutrals (e.g. Rules 1.12 and 2.4)
§  In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a non-professional capacity
·         E.g. a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
o   [6] Functions as a Public Citizen
§  As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession
§  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education
§  A lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority
§  Public Interest Work: All lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.
o   Core Concepts of Representation
§  Competence (1.1)
·         [4] In all professional functions, a lawyer should be competent, prompt and diligent
§  Client Identification
§  Communication
·         [4] A lawyer should maintain communication with a client concerning the representation
§  Confidentiality
·         [4] A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law
§  Conflicts of Interest (avoidance thereof)
§  Counseling
§  Candor to Tribunal
§  Commitment to Client (aka zealous)
§  Conscience (personal integrity)
§  Conformity to the Requirements of Law:
·         [5] Both in professional service to clients and in the lawyer’s business and personal affairs
o   (A) A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimate others
o   (B) A lawyer should demonstrate respect for the legal system and for those who service it, including judges, other lawyers, and public officials
o   (C) While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process
o   Comment [7] §  Sources of Law Governing Lawyer’s Professional Responsibility
·         Rules of Professional Conduct
·         Common Law
·         Statutes
·         Regulatory Law
·         Procedural Law
·         Inherent Power of the Court
§  Sources of Guidance
·         Ethics Opinions
·         Restatement of the Law Governing Lawyers
·         “A lawyer is also guided by personal conscience and the approbation of professional peers”
o   Comment [8] §  A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious  
·         Thus, when an opposing party is well-represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done
·         So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice and thereby heed their legal obligations, when they know their communications will be private
o   [9] Conflicting Responsibilities
§  In the nature of the law, conflicting responsibilities are encountered
·         Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living
·         The RPC often prescribe terms for resolving such conflicts. Within the framework of the Rules, however, many difficult issues of professional discretion can arise
o   Such issues must be resolved through the exercise of sensitive principles including the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system
o   [10] Self-Governing
§  The legal system is largely self-governing
·         Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the process of government and law enforcement
o   [12] Observance of RPC
§  Every lawyer is responsible for observance of the RPC; a lawyer should also aid in securing their observance by other lawyers
·         Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves
·         Scope
o   [16] Compliance with the Rules
§  Compliance with the rules depends primarily upon:
·         understanding and voluntary compliance
·         reinforcement by peer and public opinion
·         upon enforcement through disciplinary proceedings
§  However, the Rules do NOT exhaust the moral and ethical considerations that should inform a lawyer
·         The Rules simply provide a framework for the ethical practice of law
o    [17] When the Lawyer’s Professional Duties Arise
§  For purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists
§  Most of the duties flowing from the client-lawyer relationship attached only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so
·         However, there are some duties (e.g. confidentiality) that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established (1.18)
§  Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact
o   [19] Failure to Comply
§  Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process
·         The Rules presuppose that:
                                                                                                      A.            Disciplinary assessment of a lawyer’s conduct will be made on the basis of the  facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation
                                                                                                      B.            Whether or not discipline should be imposed for a violation and the severity of a sanction, depend on all the circumstances, such as:
§  the willfulness and seriousness of the violation,
§  extenuating factors, and
§  whether there have been previous violations
o   [20] Violation of a Rule
§  Violation of a Rule should NOT itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation
§  The Rules are designed to provide guidance and to provide structure for regulating conduct through disciplinary agencies. They are NOT designed to be a basis for civil liability.
·         Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of Rule may be evidence of breach of the applicable standard of conduct
 
I.             The Client-Lawyer Relationship
A.    Allocation of Decision-Making Authority
·         MR  1.1. Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
o   Legal Knowledge and Skill
§  [1] –  Requisite Knowledge and Skill
·         In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include:
o   relative complexity and specialized nature of the matter
o   lawyer’s general experience
o   lawyer’s training and experience in the field in question
o   preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to a lawyer of establishing competence in the field
·         In many instances, the required proficiency is that of a general practitioner, but expertise in a particular field of law may be required in some circumstances
§  [2] – New Lawyers
·         A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.
·         Some important legal skills are required in all legal problems, such as:
o   analysis of precedent
o   evaluation of evidence
o   legal drafting
·         A lawyer can provide adequate representation in a wholly novel field through necessary study
·         Competent representation can also be provided through the association of a lawyer of established competence in the field in question
§  [3] – In an Emergency
·         In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation with another lawyer would be impractical
o   However, even in an emergency, assistance should be limited to that reasonably necessary in the circumstances
§  [4] – Achieving Competence Through Reasonable Preparation
·         A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.
o   Thoroughness and Preparation
§  [5] – Competent Handling of Matter
·         Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation
·         The required attention and preparation are determined in part by what is at stake:
o   major litigation and complex transaction à require more extensive treatment
o   matters of lesser complexity and consequence à requires less
·         An agreement between the lawyer and the client regarding scope of representation may limit the matters for which the lawyer is responsible (See 1.2(c)).
o   Maintaining Competence
§  [6] – Maintaining Requisite Knowledge and Skill
·         To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject
·         MR 1.2. Scope of Representation and Allocation of Authority between Client and Lawyer:
                                                    (a)            Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by MR 1.4, shall consult with the client as to the means by which they are to be pursued.
·         Comment [1] – Allocation of Authority
o   Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations
§  A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.
·         The lawyer shall consult with the client as required by 1.4(a)(2)
§   A lawyer shall abide by a client’s decision whether to settle a matter.
·         The decision to settle a civil matter must be made by the client
·         See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions
§  In a criminal case à the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to: a plea to be entered, whether to waive jury trial, and whether the client will testify
·  

ce of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like (see 4.1)
§  Comment [11] – Where the client is a fiduciary à the lawyer may be charged with special obligations in dealings with a beneficiary
§  Comment [12] –
·         Paragraph (d) applied whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability
·         Paragraph (d) does NOT preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise
·         The last clause of parg (d) recognizes that determining the validity of interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities
§  Comment [13] – If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the RPC or other law, or if the lawyer intends to act contrary to the client’s instructions, the lawyer must consult with the client regarding the limitations on the lawyer’s conduct (see 1.4(a)(5)).
·         MR 1.4. Communication
                                                    (a)            A lawyer shall:
                                                                            (1)            Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
·         Comment [2] – Consult With Client When Decision Must Be Made
o   Requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take
§  Ex) a lawyer who receives from opposing counsel  an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer (see 1.2(a))
                                                                            (2)            Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
·         Comment [3] – Consult With Clients About Means
o   Requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situation (depending on both the importance of the action under consideration and the feasibility of consulting with the client) this duty will require consultation prior to taking action.
§  In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation
·         In such cases, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf
                                                                            (3)            Keep the client  reasonably informed about the status of the matter;
·         [3] – Must Keep Client Informed
o    Such matters typically include: significant developments affecting the timing or the substance of the representation
                                                                            (4)            Promptly comply with reasonable requests for information; and
·         Comment [4] – Information Request
o    A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation
§  However, when a client makes a reasonable request for information, paragraph (a)(4) requires prompt compliance with the request
·         If a prompt response is not feasible à the lawyer, or member of lawyer’s staff, must acknowledge receipt of the request and advise the client when a response may be expected
o   Client telephone calls should be promptly returned or acknowledged
                                                                            (5)            Consults with  the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the RPC or other law;
                                                   (b)            A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
§  Explaining Matters
·         Comment [5] -The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so
o   Adequacy of communication depends in part on the kind of advice or assistance that is involved
§  Ex) when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement
§  Ex) a litigation lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others
§  On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail