Rubinson Professional Responsibility Fall 2011
I. Legal Profession
A. Institutions that regulate lawyers
· The highest court of state issue professional conduct; not legislation
· Lawyers are an independent self-regulating profession
· Now there is a restatement of law governing lawyers; like other restatements it is not law, but it is very persuasive.
· Federal courts have also issued laws, and there are laws passed by administrative agencies.
· Inherent Power Doctrine: when it is not in the constitution courts can regulate lawyers because they say it is implied
State Ethics Code
· ABA Model Rules of Professional Conduct
**Passed by individual states are what have the force of law
**Usually highest court that passes these binding rules.
B. Reporting misconduct by other lawyers
Rule 8.3(a): Reporting Rules of Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that rises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority
*** This rule requires knowledge. If you know that there is substantial misconduct, you MUST report it to the appropriate authority. Must report unless doesn’t raise substantial question of the lawyer’s honesty, trustworthiness or fitness.
8.3(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
***Approved lawyer assistance program: Every jurisdiction has help-lines. If there is a lawyer who is suffering from alcoholism or some sort of mental impairment, you can call for help. The idea here is to encourage people to seek help, which vindicates the clients’ interests in the end. This is an example of a rule that has a number of moving parts.
Fail to report:
· Jurisdictions vary. You can have a private or public reprimand, a suspension, or you can be disbarred.
Rule 5.1: Responsibilities of Partners, Managers, and supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Rule 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.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
II. Relationships between lawyers and clients
· Being an attorney is a fiduciary relationshipà characterized by good faith
· To establish the relationship, it is advised to make a retainer as CLOSE to the scope as possible (state dockets, parties. . . etc)
The attorney client relationship consists of three parts:
· Establishing the relationship
· The scope of the relationship
· The termination of the relationship
Togstad v. Vesely, Otto, Miller & Keefe
· Court found an A/C relationship between A and Cs because Mrs. Togstad reasonably believed that she was being represented. An A/C relationship was found to believe between Mr. Togstad even though he never even met with Mr. Miller.
· RULE: If a client reasonably believes that the client is represented by an attorney, the client is represented by an attorney; the test is one of reasonable belief on behalf of the client.
How do you avoid ending up like Mr. Miller?
· Put it in writing; if you have a letter in writing rejecting the client’s case, it would be unreasonable for the client to believe that you are representing
when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct 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.
Rule 1.16 Declining Or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.