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Professional Responsibility
University of Baltimore School of Law
Rubinson, Robert J.

Professional Responsibility Outline

Rubinson – Fall 2014

Regulation of Lawyers:

· Generally:

o ABA Model of Professional Conduct:

§ Not law and doesn’t automatically set standard for civil liability

§ Out of date

§ Offers three types: Canons, ethical considerations, disciplinary rules

o States:

§ Regulate their own attorneys (usually high court of the state)

§ Adopt their own set of rules (CA) or a version of model rules

o The Rules:

§ Govern:

ú Lawyers and law students

ú NOT: law clerks, paralegals

§ Interpreted by the lawyers reading them

ú Easy to find a way not to report things, legally

ú Reasonable and Knowledge can be read many ways

· Rules:

o Rule 8.3: Reporting Professional Misconduct (“Rat on Your Friends” provision)

§ Wording:

A. A lawyer SHALL inform appropriate authority of misconduct of another lawyer that raises a substantial question of the lawyer’s “honesty, trustworthiness or fitness”

B. Same thing for a lawyer telling on a Judge

C. This does not require disclosure of information protected by 1.6 or learned in a Lawyer Assistance Program

§ Breakdown:

ú Elements:

· Lawyer who knows

· That another lawyer

· Committed a violation of the rules

· Raising a substantial question of honesty/trustworthiness/fitness

· SHALL report

ú Exceptions:

· Rule 1.6: Confidentiality

· When representing another attorney for malpractice

· LAP

o Rule 5.1: Responsibilities of Bosses

§ Wording:

A. A partner or a manager in a firm, SHALL make reasonable efforts to ensure that the firm has reasonable measures giving reasonable assurance that all lawyers in the firm conform to the Rules

B. A supervisor SHALL make reasonable efforts to ensure their subordinates conform to the Rules

C. A lawyer SHALL BE RESPONSIBLE for another’s violation of the Rules IF:

1. He ORDERS, or KNOWINGLY RATIFIES the conduct; OR,

2. He is a partner/manager, OR direct supervisor, AND knows early and fails to act reasonably

§ Breakdown:

A. If you have considerable authority, you SHALL make reasonable efforts to make policies that make reasonably sure the firm follows the Rules

B. A supervisor SHALL make reasonably sure subordinates follow the Rules

C. A lawyer IS responsible for the actions of subordinate, IF:

1. He tells them to do, or ratifies, something violating the Rules; or,

2. Someone with considerable authority knows of the conduct when it could be mitigated/avoided but fails to act

o Rule 5.2: Responsibilities of a Subordinate Lawyer

§ Wording:

A. A lawyer is bound by the Rules even if told to act by another

B. A subordinate does not violate the Rules if told to act on a supervisor’s reasonable resolution of an arguable question of professional duty.

§ Breakdown: Nuremberg-Lite

ú Like a soldier, you are still bound by Rules – even if told to act.

· Must report according to 5.1

ú A little leniency is afforded when ordered to do a questionable action but reasonably believed to be within the Rules

· Not full soldier thought, more A Few Good Men

o Rule 8.4: Misconduct

§

About of the Attorney-Client Relationship:

· Stages of the Relationship: Spectrum of Representation

o Formation: The Beginning

§ Choosing Clients:

ú Avoid complications (COIs, unknown areas of law, other problems)

ú Expertise required:

· Need not know the area of the law – just provide competence (Rule 1.1)

· Allowed to charge reasonable fees for “gaining expertise”

§ Rejecting Clients:

ú Allowed to be picky (reject for no reason)

ú Three caveats:

· Rule 6.1 encourages lawyers to aspire to 50 hrs/year of pro bono

· Rule 6.2 says a court may assign a lawyer to represent an indigent even if the court cannot pay the lawyer and lawyer can only reject with good cause

· May discriminate cases – not clients (on standard discrimination bases)

§ Formation of the Relationship:

ú An agreement on a price is not a required aspect of the A/C relationship

§ Happens when:

ú (R§ 14) C manifests intent to have the lawyer represent her, and;

· Lawyer manifests consent; OR,

· Lawyer fails to manifest consent but could reasonably know that the C is, in fact, reliant upon the services

ú Togstad – the client reasonably believed there was representation although the lawyer did nothing but hold an initial meeting

o Scope: The Middle

§ Fiduciary and agency relationship

§ Duties: Shall

ú Competence: (Rule 1.1)

· Knowledge, skill, thoroughness, and preparation

ú Scope and Authority: (Rule 1.2)

· Listen and act on behalf of the client

· Limit the scope if you choose (but, in writing)

· Cannot encourage/assist in illegal acts (hypos are okay)

ú Diligence and Promptness: (Rule 1.3)

· Reasonable level of both

ú Communication: (Rule 1.4)

· Promptly inform client of any decision/circumstance

· Reasonably consult client

· Keep client reasonably informed

· Promptly comply with reasonable requests

· Discuss any relevant information

· Explain to establish informed consent

o Termination: The End

§ Declining or Terminating Representation

ú SHALL withdraw if:

· Representation will result in breaking the Rules/law

· Lawyer is physically and/or mentally incapable

· Lawyer is discharged

ú MAY withdraw if:

· Can be done without adverse effects

· Client persists with criminal/fraudulent action

· Client used lawyer to commit a crime/fraud

· Insists on taking action lawyer finds repugnant

· Client fails to meet an obligation (payment)

· Lawyer can’t afford it

· Client is unreasonably difficult

· Other good cause

ú MUST comply with applicable law regarding termination/withdrawal

ú SHALL take steps to

terminating representation.

D. Upon termination, the lawyer SHALL take reasonable steps to protect the C’s interest, such as: giving reasonable notice, allowing time to find another lawyer, surrendering documents, and refunding unearned payment. The lawyer MAY retain papers relating to the C to the extent permitted by law.

§ Breakdown:

ú

Secrecy: Confidentiality and the Attorney-Client Privilege

· Generally:

o Enforceability:

§ Confidentiality is an ethical rule – only enforceable by the bar

§ Privilege is a evidentiary rule – only applicable when information is sought

ú Unenforceable if C is coming for help to perpetrate a crime

§ Thus, the two are analyzed differently and separately

o Coverage:

§ Clients can be individual, natural persons

§ Clients can also be legal fictions – organizations

§ These, too, are analyzed differently, though not entirely separately

o Scope:

§ Confidentiality is very broad encompassing anything relating to C’s representation

§ Privilege is very limited and finely delineated

o Limiting Obligation?:

§ With confidentiality, only informed consent or an exception may allow more room

§ With privilege, a C may waive privilege (sometimes attorney, on accident)

· Application:

o Confidentiality with Individual Clients: Rule 1.6

§ Application of Rule 1.6.:

ú A lawyer is required to keep all information relevant to the representation of the Client private

· Can use hypos to discuss, discuss with members of firm/practice

§ Eight exceptions to Rule 1.6:

ú Rule 1.6(B) Exceptions: MAY

1. Maim or murder

2. Financial Harm

3. Prevent, Mitigate, or Rectify (Financial Fraud) (POST HOC)

4. Secure Legal Advice

5. Self-defense Exception

o Ability of a lawyer to disclose otherwise confidential info to protect herself, seek fees, defend against litigation

ú Rule 1.13(C) Exception: MAY

· External disclosure

· Only after it has gone up the ladder and there was a failure to act

· Pertains to Rule 1.6(B)(2) & (3) violations

ú Rule 3.3 Exception: SHALL/MAY

· Duty to disclose to a tribunal:

o Shall, if he has knowledge that false testimony has been given

o May, if he has reasonable belief that false testimony has been given

· Rule 3.3(C) explicitly states that Rule 3.3 trumps Rule 1.6