Professional Responsibility: Prof. Rubinson Summer 2014
1. Introduction
a. Terms
i. 1.0(i) – Reasonable Belief
1. Definition
a. A reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred
ii. 1.0(f) – Know or knowledge
1. Definition
a. Denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances
b. Who regulates Judges?
i. Appearance of Impropriety
1. Definition
a. If there is a sense the judge is playing a role that is illegitimate or biased, there is an issue
c. Who regulates lawyers?
i. Inherent Powers Doctrine
1. Definition
a. Courts in many states have an inherent power to regulate lawyers
ii. ABA Rules of Professional Conduct
1. Generally
a. Not binding, simply recommendations (similar to MPC or Restatement)
b. First adopted in some form in 1908, evolved into current form in 1969
2. Purpose
a. To guide lawyers in evaluating what conduct is proper in various situations
b. To provide a basis for disciplining lawyers who violate the rules
d. Rules
i. 8.3 – Reporting Professional Misconduct (The Rat on Your Friends Rule)
1. A lawyer who
a. Knows that another lawyer has committed a
b. Violation of the RPC that
c. Raises a substantial question as to that lawyer’s honest, trustworthiness, or fitness as a lawyer in other respects
d. Shall (required) inform the appropriate professional authority
2. Exceptions
a. Not required to report information that is protected by confidentiality rules
b. Not required to report information learned while participating in a lawyer’s assistance program (EX: drug rehabilitation, AA)
c. Rule does not appear to require self-reporting
d. [4] A lawyer who is accused of wrongdoing (aka the object of a grievance proceeding) will not be subject to reporting by their retained counsel
ii. 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers
1. A partner in a law firm… shall make reasonable efforts to ensure that… all lawyers in the firm conform to the RPC
2. More responsibility for supervising partners
iii. 5.2 – Responsibilities of a Subordinate Lawyer
1. …Not withstanding that the lawyer acted at the direction of another person (they will still be responsible)
2. …does not violate the RPC if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty
iv. 5.3 – Responsibilities regarding non-lawyer asistants
1. Partners of a firm must make reasonable efforts that firm has efforts to ensure non-lawyer’s conduct is compatible
2. A lawyer is responsible… same rules as a partner ordering an associate
2. Attorney-Client Privilege
a. Generally
i. Common law evidence rule that is narrow in scope
ii. Overridden in certain circumstances
b. The Basics (The 5 C’s)
i. Client
case, but “He would discuss it with his partner.” T did not seek additional legal advice until a year later, after SoL had lapsed. The court found there to be a relationship as M had given advice upon which T relied to her detriment.
2. Rule
a. There is an Attorney-Client relationship if a client reasonably believes there is one
f. Problems
i. Civil Liability
1. Legal Malpractice
a. Definition
i. A claim brought against a lawyer for professional misconduct that is alleged to have caused harm to another person (possible to have no legal malpractice, but still undertake grievance proceedings)
b. Elements
i. The lawyer owed a duty to the plaintiff
ii. The lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances,” and
iii. That the breach of duty caused harm to the plaintiff
c. Examples
i. Negligence
ii. Breach of Contract
iii. Breach of Fiduciary Duty
ii. Grievance Proceedings
1. Definition
a. Takes complaints regarding behavior of barred attorneys
2. Possible Punishments
a. Private Reprimand
b. Public Reprimand
c. Suspension
d. Disbarment
