Professional Responsibility
Levine
Spring 2011
I. BACKGROUND
A. Rules
Sources of Rules:
· Canons of Professional Ethics (1908)
· Code of Professional Responsibility (1970)
o Same problems as canons- too general
· Rules of Professional Conduct (1983 et. seq.)
· All are merely “models” promulgated by the ABA
· State high court adoption (except NY, CA, OH)
· State and local bar association roles
o Voluntary bar associations
o “Integrated bar associations
· Ethics opinions
· Constitution
o 6th Amendment Right to Counsel
o 5th Amendment Privileges and immunities clause
o 1st Amendment
o 6th Amendment Due Process
o 5th Amendment
o Equal Protection
· State and Federal Laws
o NY Judiciary Law
o CA Business and Professions Code
o 28 USC 455
o Attorney-Client Privilege (CPLR 4503; CA Evidence 954; FRE 501)
o SOX
o Anti-trust laws
· Courts v. legislatures
o Inherent powers doctrine
o Negative inherent powers doctrine
o Qualifications for admission
o What is law practice and who can do it?
o Discipline and disbarment
o Courts are guarded but tolerant of legislative efforts
· Federal v. state power
· Federal v. state courts
· Common law
o Fiduciary duty
§ Servitude to client is #1
§ Major source of ethical requirements
· Areas of court made law
o Fiduciary duty
o Agency: powers; duties
o Law of lawyer-client relationships
§ Civil liability; fee arrangements
o Aiding and abetting
§ Civil
§ Criminal
Secondary Authorities:
· Restatement of Law Governing Lawyers
· ABA/BNA Manual on Professional Conduct
· Hazard & Hodes, The Law of Lawyering
· Bar association ethics opinions
· On Lexis, Westlaw (limited) and Bar websites
· www.ABANET.org/CPR
B. Sanctions
Sanctions for Violation:
· Professional discipline
o Suspension
o Disbarment
o Public censure
· Liability to client for malpractice or breach of fiduciary duty
· Liability to 3rd persons
· Loss of fee
o Can apply even if client isn’t otherwise harmed, but lawyer didn’t fulfill an obligation
· Loss of client(s)
· Disqualification from representation
· Adverse publicity and embarrassment
· Discovery sanctions (e.g. Morgan Stanley and Kirkland)
C. Identifying the Client
· Who is a client?
· Why it’s important
· Formation by contract
o Express
o Implied
§ Creation through an agent
· Court appointment
o No (theoretical differentiation in duty just bc the client isn’t paying
· “virtual clients”
D. Duty to Clients
Competence:
· Distinguished from Neglect (most common complaint)
o Neglect- ignores work to be done
o Incompetence- does the work but does it poorly
· Standards for Competence (p. 27)
o Care, skill, diligence and knowledge
o Reasonably prudent lawyer in jurisdiction
· Means for Enforcing Competence
o Malpractice
o The market
o 6th Amendment Effectiveness
o Discipline (rare)
Confidentiality:
· Not the Same Thing as Privilege
o Privilege is a prohibition against forced use or revelation
o Confidentiality is a prohibition against voluntary use or revelation
o Agency/Ethical Duty v. Evidence Doctrine
o With loyalty, one of the twin pillars of professional duty
o Foundation for conflict rules
· Duty arises from lawyer’s role as agent
· Values served: Practical and Normative
· Scope
o Almost all information is confidential
o Information gained about client through or after representation
· Confidentiality duty survives the relationship
· Rules:
o 1.6(a)- “relating to” (broad); client has to give informed consent
o 1.8(b)- only bans use that is to C’s disadvantage
· If lawyer gains, but no harm to C, information is not confidential
o 1.9(c)- above rules apply to former and potential clients as well as current clients
· The Battle is over the Exceptions:
o 1.6(b)(1)- necessary to prevent death or bodily harm (since 2002, danger does not have to be imminent)
o 1.6(b)(2-3)- prevent/mitigate financial harm
o 1.6(b)(4-6)- to secure ethical advice, establish L’s claim/defense against C; or to comply with court orders
Rule 1.6(a)
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order
represent him
L had duty to employer, could not have represented him
Perez was reasonable to think they did
· The fact that a 3rd party was present did not absolve them
Perez can tell his business, but lawyer can’t
· Disadvantage to Perez was mental/emotional/reputational
Hypo: My Client is HIV Positive (p. 23)
· Is the information confidential?
o Yes. Rule 1.6- it “relates to” the representation bc client thought it might get him bail, so he told L
· Who is the client?
o Is Anna also a client? She’s paying the fee and posting bail
o Legal representation is of boyfriend, so he’s the client even though the girlfriend is paying.
· Payment alone does not establish an attorney-client relationship.
o Rule 1.8(f), 5.4(c)
· Lawyer represented her on probate matter
· Does any exception apply?
o 1.6(b)(1)0 bodily harm is reasonably certain.
· Should the lawyer reveal if he may?
o Girlfriend will get more $ in a suit against lawyer if she contracts HIV than boyfriend would get in a suit for breach of duty. Lawyer should tell!
· Does he have any other options?
Hypo: All’s Not Well (p. 23)
· Ben gets real estate report that doesn’t mention existing well problem. Sellers (clients) won’t let Ben tell potential buyers.
· Information is confidential bc it’s directly relevant. Ben’s method of finding out the info doesn’t matter.
· Exceptions:
o 1.6(b)(3)- mitigate substantial harm
§ Protection exists bc a 3rd party will get hurt
§ Client using lawyer as a tool to further fraud
§ Will revelation actually mitigate the loss?
§ Is it actually fraud?
o NOT 1.6(b)(2) bc fraud has already been committed
· What should lawyer do?
o Ben should first try to get client to be open about it.
o If not, Ben should tell!
