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Professional Responsibility
Temple University School of Law
Wells, Harwell

Maintaining The Integrity Of The Profession
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.
 
Rule 8.1 Bar Admission And Disciplinary Matters – Comment
 
[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer’s own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.
 
[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.
 
[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.
 
See 52: drugs, sex/ w minors, bankruptcy, shoplifting, cheating on exam, plagiarism, pattern of hostile conduct
 
-Can’t answer bar questions dishonestly
 
Problem 1-1
 
-can’t answer question dishonestly or will violate Rule 8.1
 
Gower: woman disclosed psych treatment in highshcool, created problems for her w/ CT bar requesting therapist notes. Prof thinks this is a bit overboard by CT bar
 
Misconduct in Law School
 
Mustafa: Moot court chair using school funds for personal use, caught and made restitution, school recommended he be admitted to bar;
 
Bar did not admit him b/c what he did was criminal in nature and would have been disbarred had been an attorney
 
Taking client funds one of most serious offenses w/ harshest results;
 
Character flaws tough to predict, but that is job of C&F, will get false negatives
 
 
1/14 How the Bar regulates lawyers.
L&S 73-110 2-1
MR 5.1, 5.2, 8.3, 8.4
 
Most states the SC of that state makes final decisions on sanctions after hearing from state agencies
 
Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct
 
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.
Rule 8.4 Misconduct – Comment
 
[1] Lawyers are subject to discipline when they 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, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
 
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
 
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
 
[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
 
[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
 
NYT Article: Debt a bigger hurdle than exam
 
In Re Peters
-Dean accuased of sex harass. Students, prosecuted under model code. Sanction for violating 8.4b, fitness for a lawyer; also other lawyer suspended for year for changing student evaluations under 8.4
 
under 8.4 catchall provision probably violation
 
Broad language, Comment 2 says for actions relevant to practice of law, so not just anything
 
 
Maintaining The Integrity Of The ProfessionRule 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 that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
 
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
 
Maintaining The Integrity Of The ProfessionRule 8.3 Reporting Professional Misconduct – Comment
 
[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
 
[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.
 
[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
 
[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer r

y in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
 
[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.
 
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer’s conduct is a question of law beyond the scope of these Rules.
 
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).
 
Law Firms And AssociationsRule 5.2 Responsibilities Of A Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
 
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
 
Law Firms And AssociationsRule 5.2 Responsibilities Of A Subordinate Lawyer – Comment
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character.
 
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor’s reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.
 
-8.3/5.2; when faced w/ ethical dilemma can turn to supervisory attorney to help solve problem; 8.3 sometimes requires us to whistleblow
 
Report and say if we know other lawyer has committed violation which raises substantial question of other lawyer’s honesty/fitness to practice law
 
If your firm/agency has an ethics counselor, report internally first
 
-Woolis case:
 
Whistleblower retaliation
 
Problem in case; TX SC doesn’t protect partners who whistleblow
 
 
1/19 What is Malpractice?
L&S 110-137
2-2
 
Legal Malpractice: claim brought against a lawyer for professional misconduct alleged to caused harm to another
 
Tort claim:
 
-lawyer owed duty to P
-lawyer failed to exercise competence and diligence normally exercised by lawyers in similar circumstances
-that the breach of duty caused harm to P
 
Breach of Fiduciary Duty Claim (Fiduciary is someone assuming position of trust to another)
 
-P must prove that but for lawyer’s misconduct, P would have obtained a favorable judgment or settlement
 
Other ways: breach of K, lying, IIED,
 
118 Kelly v. Hunton Williams
 
-assoc notices partner improper billing, reports violations to other partners, assoc eventually fired as other partners in on scheme;