Professional Responsibility Outline

 
Professional Responsibility
Lehr-Lehnardt
Summer 2017
 
Note: Pay attention to conjunctive and disjunctive aspect of rules as well as differences between MR and MO rules.
 
Chapter 1. the regulation of lawyers
 
            A.  Institutions that regulate lawyers
                        1. The highest state courts: (The responsibility of “self-regulation”)
 (Mo. Supreme Court): Most rules based on Model Rules drafted by ABA; Adopts court procedural rules that govern lawyers; Set standards for licensing lawyers; Supervise agencies that investigate and prosecute complaints of unethical conduct by attys; Supervises administrative bodies that impose sanctions on lawyers 
                        2. State and local bar associations: integrated bar: Some states delegate auth. to                                 regulate attys to the state bar assocs; lawyers are required to be bar members to                               obtain license(MO). Voluntary bar: lawyers not required to be members (KS).
                        3. Lawyer disciplinary agencies:
*Bear the responsibility for investigating and prosecuting misconduct that violates state ethics code.
                        4. American Bar Association
*(ABA) – Voluntary bar, primary drafters of lawyers' ethics code, but limited govt authority.
                        5. American Law Institute:
*Private organization of 3,000 judges, lawyers, and law teachers who product Restatements.
                        6. Federal and state courts:
 *Judicial regulation through – Disciplinary rules; Rules of procedure; Rules of evidence; and Inherent     Authority (Contempt power).
                        7. Legislatures:
*Courts generally regulate atty conduct (inherent powers doctrine), but, Congress and state legislatures regulate attys via lawmaking; adopting state constitutions, amendments, statutes –crim, banking, securities that apply to everyone in the state, incl. lawyers.  
                        8. Administrative agencies:
–Many have special ethical or procedural rules. Misconduct can result in civil or criminal penalties. Misconduct before administrative agencies can result in civil or criminal penalties.
EX: (p34) Law firm that assisted a bank in its reporting before the Office of Thrift Supervision (federal banking agency).  Agency alleged report contained misleading info and omitted some material info.  Law firm agreed to pay $41 million in compensation to the admin banking agency.
                        9. Prosecutors:
 –Broad discretion in who to prosecute. E.g, Watergate (1972)
[29] lawyers, incl. 2 U.S. atty generals and president of the White House counsel convicted of crimes.
Saving & Loan crashes – Lawyers were prosecuted for participation in financial frauds;
1990s – prosecutors indicting increased number of lawyers.
                        10. Malpractice insurers:
*Insurance companies sell malpractice insurance policies to lawyers and law firms, but these companies also “regulate” the lawyers they insure.
                        11. Law firms and other employers:
*Many employers have their own rules of practice in addition to ensuring compliance w/ ethical rules
*Law firms and govt. agencies sometimes have stricter confidentiality rules than those imposed by the state ethics code.
 
 
 
                        12. Clients:
*Institutional clients have a quasi-regulatory role in relation to the law firms that they employ
*You cannot sue a lawyer for violation of the Model Rules (civil liability); Violation of the rules cannot be used as a basis for negligence per se in a malpractice suit; Violation of the rules does not mean a trial ct has to automatically disqualify an atty; The rules are used for discipline only.
*Nevertheless, a violation of a Rule may be evidence of breach of the applicable standard of conduct.  
           
            B.  State ethics codes
*Primarily functions to:
(1) guide lawyers in evaluating what conduct is proper in various situations and
(2) to provide a basis for disciplining lawyers who violate the rules
All lawyers must comply with the state ethics code.
           
            C.  Admission to practice
                        1. A short history of bar admission
*How the requirements to become a lawyer have changed
Colonial era – no law schools, just had to apprentice
Mid-19th century – many law schools established
1860 – all but two states had bar exams (informal, oral process)
Late 19th century and early 20th century – law school training was optional but not mandatory to practice law.
20th century and beyond, law became a graduate course of study and overtook apprenticeship as primary means to becoming a lawyer.
                        2. Contemporary bar admission requirements
*undergrad from college; graduate from ABA accredited law school; Apply to bar; pass character and fitness; pass the bar; continuing comply w/ various requirements – continuing education/ethics
*MR 8.1 – Bar Admission & Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or about 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.
                        3. The bar examinations
                        4. The character and fitness inquiry:
Purpose is to assess whether applicant will practice law in an honest and competent manner.
 
Chapter 2. lawyer liability
 
            A.  Professional discipline
                        1. The process of lawyer discipline
Missouri Complaint Process: File (attorneys, judges, or non-attorneys) a complaint with the Office of Chief Disciplinary Counsel in Jefferson City.
Complaint will be screened to determine whether the matter is the proper subject for a disciplinary investigation.
Once a complaint file is opened, the complaint will be investigated by the Office of Chief Disciplinary Counsel or by a Regional Disciplinary Committee. The investigation: entirely in writing, telephone calls, personal interviews
Based on the investigation
No violation: Close the complaint file
Minor violation: Issue a written admonition (becoming part of the lawyer's record)
Serious violation: File a legal document, called an Information, which sets out the charges being made against a lawyer
Missouri Hearing Process: Disciplinary Hearing Panel will hear evidence like in a regular court proceeding
Evidence against lawyer presented by the Chief Disciplinary Counsel.  Likely that the complainant may be asked to testify under oath.
 Lawyer charged may also present evidence in support of herself
Disciplinary Hearing Panel will decide whether a violation of the Rules of Professional Conduct has occurred and recommend any of the following actions:
Dismissal of the case if it finds no violation has occurred;
Written admonition (becoming part of the lawyer's record);
Diversion or Reprimand;
Suspension or disbarment.
Possible for either side: Appeal to the Supreme Court of Missouri
Review by the Missouri Supreme Court: Supreme Court of Missouri will review the recommendation of the Disciplinary Hearing Panel.
This may include the preparation of written briefs and oral arguments.
The Court then will impose appropriate discipline on the lawyer.
The Supreme Court also has the authority to review any recommendation of the Disciplinary Hearing Panel, even without appeal.
No dis