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

PROFESSIONAL RESPONSIBILITY RUBINSON SPRING 2015

¨ INTRODUCTION AND THE REGULATION OF LAWYERS

o What is the legal profession and professional responsibility?

o Self regulating profession

§ Inherent Power Doctrine—lawyers, and not the legislature, regulate conduct

· Freedom from oversight

o Serves the profession at the expense of the public

· Possible conflict of interests

· The highest state court regulates lawyers in that state

§ 5.1—Responsibilities of Partners, Managers, and Supervisors

· Partner or lawyer with managerial authority SHALL make reasonable efforts to ensure that the firm gives reasonable assurance that all lawyers conform to Rules of Prof Conduct

o Partner or manager must make REASONABLE efforts to make sure firm conforms

· Lawyer with direct supervisory authority over another lawyer SHALL make the same reasonable efforts re: that lawyer

· Lawyer is responsible for another lawyer’s misconduct IF:

o They order, or with knowledge, ratify the conduct OR

o They are PARTNER or MANAGER and KNOW of the conduct in time to mitigate but fail to take reasonable remedial action

§ 5.2—Responsibilities of subordinate lawyer

· Bound by rules regardless of whether they are acting at another’s behest or not

· DOES NOT VIOLATE rules if they act with supervisory lawyer’s REASONABLE RESOLUTION of an ARGUABLE question of professional duty

o There is an element of scienter here

o If the subordinate KNOWS that a resolution is not reasonable, they may not make an argument against their violation

§ 5.3—Resp regarding non-lawyer assistants

· Partner and lawyer with managerial auth SHALL make reasonable efforts to make sure they comply with model rules

· Direct supervisor SHALL make reasonable efforts on the same front

· Responsible for the conduct if they violate rules IF

o Lawyer orders of knowingly ratifies a violation

o Lawyer who is partner or manager knows of the conduct and fails to take reasonable action to mitigate

§ 8.3—reporting professional misconduct

· Lawyer who KNOWS of violation of code of conduct that creates a SUBSTANTIAL QUESTION of that lawyer’s honesty, trustworthiness, or fitness as a lawyer SHALL inform the authorities

· Also if they KNOW that a judge has done so

· DOES NOT require disclosure of 1.6 info

§ 8.4—Misconduct to

· Violate or attempt to violate rules, or knowingly induce another to do so

· Commit a criminal act that reflects adversely on lawyer’s trustworthiness

· Engage in conduct involving dishonesty, fraud, or deceit

· Engage in conduct that is prejudicial to justice

· State or imply an ability to improperly influence an official

· Knowingly assist an official to violate the rules of judicial conduct

¨ ELEMENTS OF AN ATTORNEY-CLIENT RELATIONSHIP

o Scope, competence, communication and fiduciary duty

§ Attorney-Client relationship

· Refusal reasons

o Lack of interest

o Lack of experience

o Lack of desire

o Anything else

· IF a lawyer does not want to take a case he must make that clear to the client and inform them as to the limitations of their relationship

· Existence—if the client reasonably believes that there is an attorney-client relationship, then THERE IS

· What is NOT NEEDED

o Retainer agreement

o Bill or exchange of funds

o Formal contract

o No need to meet the client

§ 1.1—Competence

· A lawyer SHALL provide competent representation to a client as reasonably necessary

o Legal knowledge

§ Factors

· Relative complexity and specialization of the matter

· Lawyer’s general experience

· Lawyer’s training in the field

· Preparation by the lawyer

· Feasible to refer the matter, or consult with, another competent lawyer

o Skill

§ Legal reasoning and writing are required

§ Need not have special training prior to taking case

§ EMERGENCY advice is ok but SHOULD BE LIMITED to that reasonably necessary

o Thoroughness

§ Includes fact investigation

§ Inquire into legal elements and possible procedures

o Preparation

§ Need to keep up to date with CLEs and training

§ 1.2—Scope of representation and allocation of authority

· Lawyer SHALL abide by a client’s decisions regarding the objectives of the representation

o CONSULT client as to the means with which they are pursued

§ LAWYER defers to objectives and dollars

§ CLIENT defers to sp

S BE CONSTRUED AGAINST THE LAWYER

o The ethical duty of confidentiality

§ GOALS OF SECRECY

· Effective lawyering

· Promotes administration of justice

· Trust in regards to client relationships

§ How to answer 1.6 question

· Is it protected?

o Relating to representation

· If protected, does an exception apply?

§ 1.6—Confidentiality of Information

· Lawyer SHALL NOT reveal information RELATING to the representation of a client UNLESS

o Client gives informed consent

o Impliedly authorized to disclose to carry our rep

o Disclosure allowed by the rest of this rule

· Lawyer MAY reveal info relating to rep to the extent they reasonably believe necessary

o To prevent reasonably certain DEATH or SBI

o To prevent client from committing CRIME or FRAUD that is reasonably certain to result in SUBSTANTIAL injury to financial interests of another AND client used services in furtherance of this

o To PREVENT, MITIGATE, or RECTIFY substantial injury to the financial interest or property of another that has or will result from CRIME or FRAUD which the client has used the lawyer’s services for

o To secure legal advice

o To establish a claim or defense on the lawyer’s behalf agains the client

o To comply with law or court order

· COMMENTS

o 3—This is broader than the attorney-client privilege

§ applies not only to communications in confidence but also to all information relating to the representation

o 4—cannot even give hypothetical about the client if a reasonable hearer could guess who you are talking about

o 6—for the physical harm part there generally needs to be an immnent threat or present and substantial threat of harm

o 9—disclosure to other legal professionals in order to seek advice is impliedly authorized