Professional Responsibility Outline

NO NEED TO KNOW RULE NUMBERS FOR EXAM!!! REMEMBER THE CONCEPTS…
I. Professionalism and the Practice of Law
a. The Concept of “Professionalism”
i. You can organize the duties of attorneys into 4 broad categories: CCCL
1. Competence
2. Communication
3. Confidentiality
4. Loyalty
ii. Bates: Two AZ lawyers were disciplined by the bar for running a newspaper ad for their “legal clinic” in violation of AZ ethics rules banning all lawyer advertising
1. Supreme Court held that such ads, if not false, deceptive or misleading, were protected by the 1st Amendment
iii. Shapero: A KY Supreme Court rule prohibited lawyers from soliciting legal business for pecuniary gain by sending even truthful and non-deceptive letters to potential clients known to face particular legal problems
1. Supreme Court held that such advertising is constitutionally protected commercial speech, subject to restriction only in the service of substantial government interest, and only through means that directly advance that interest
iv. Rule 7.3 Direct Contact with Prospective Clients
1. A lawyer shall not solicit employment from a prospective client when the significant motive is for the lawyer’s pecuniary gain, UNLESS:
a. The person contacted is a lawyer, or;
b. The person contacted is related to, a close personal friend, or has had prior professional relationships with the lawyer.
v. Pro Bono Work
1. Part of the professional’s service “in the public interest” is reflected in the responsibility to offer legal services free of charge to people or public-interest organizations who cannot afford such services
a. No intended to be enforced through disciplinary process, however:
i. Schwarz: A FL state rule required members of the state bar to report, as part of the annual dues statement, whether they have complied with the pro bono responsibility
1. Supreme Court held the rule NOT unconstitutional
a. Applying the rational basis test, the state has a legitimate interest in encouraging attorneys it has licensed to practice to perform pro bono legal services as one aspect of their professional responsibility
b. Recent studies have shown that most attorneys do not perform significant pro bono work
i. The average for the profession as a whole is less than a half an hour/week
2. Rule 6.1Voluntary Pro Bono Publico Service
i. “A lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means”
1. Lawyers should aspire to render at least 50 hours/year
3. Rule 6.2 Accepting Appointments
a. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
i. Likely to result in violation of the rules of professional conduct, or other law;
ii. Likely to result in an unreasonable financial burden on the lawyer;
iii. The client or cause is so repugnant to the lawyer as to be likely to impair the attorney-client relationship or lawyer’s ability to represent the client
b. Sources of Regulation of Lawyers
i. Rules of professional conduct
1. History and main characteristics of rule
a. Disciplining lawyers, including the adoption of the disciplinary rules themselves, is a matter largely left to the states
i. Generally the power rests in the highest court of the state, but it can be delegated
b. The ABA has provided states with “model” rules which have then been voluntarily adopted by most states
i. The “model” rules have no legal effect whatsoever until adopted by the state
ii. The “model” rules have been adopted by about 4/5 of the states
1. CA and NY maintain their own unique rules
2. Examples of rules
a. U.S. Constitution
i. 5th Amendment: No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law
ii. 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense
b. Statutes and Rules
i. Federal law
1. Sarbanes-Oxley Act, 15 U.S.C. § 7245 (2002): Requires reporting of evidence of a material violation of securities law or breach of fiduciary duty
ii. State law
1. CA Business and Professions Code § 6068: Duty for attorney to maintain the confidence of their client, unless they reasonably believe likely to result in death or substantial bodily harm to any individual
2. CA Evidence Code § 954: Client can refuse to disclose, and prevent another from disclosing, a confidential communication between client and lawyer
iii. Court rules
1. Federal Rules of Evidence, Rule 501: Privilege shall be governed by federal common law, but in civil actions where state law applies, the privilege shall be determined by state law
c. Ethical Rules and Codes
i. ABA Model Rules of Professional Conduct, Rule 1.6: A lawyer cannot reveal information about a client unless the client consents or the lawyer reasonably believes that absent disclosure death or serious bodily injury will result to some individual, or that will result in substantial injury to financial or property interests, etc.
d. Common Law
i. Strickland v. Washington (1984): A convicted D making a claim of ineffective assistance of counsel must identify the acts that are alleged to not have been the result of reasonable professional judgment
1. Counsel is strongly presumed to have rendered effective assistance of counsel
ii. People v. Meredith (1981): Keep secrets of your client but the circumstances must be considered
1. Ex. Burned wallet case
3. Sanctions for rule violations
a. Each state determines the sanctions that will be imposed for violations of its rules
b. The ABA has provided “model” sanctions also (ABA Standards for Imposing Lawyer Sanctions)
i. Over half of the states have adopted them in whole or in part
c. Another set of widely adopted ABA rules are the Model Rules for Lawyer Disciplinary Enforcement
i. Contain some recommendations about sanctions, although primarily deal with procedure
d. The disciplinary body will first determine the type of lawyer misconduct, the lawyers mental state, and the extent of the injury
e. Then the