Professor Robert Rubinson
I. PROFESSIONAL RESPONSIBILITY AND THE REGULATION OF LAWYERS
Rule 8.3 Reporting Professional Misconduct “Rat Rule”
a. lawyer who knows another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority;
b. above also applies to judges;
c. Exceptions: no obligation to report/disclose info otherwise protected by Rule 1.6 or
information gained during participation in an approved lawyers assistance program.
Note: case law exists saying lawyer cannot threaten 8.3 reporting or use as leverage.
Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
a. partners, managers, and supervisory lawyers shall make reasonable efforts to ensure that the firm has measures in effect giving reasonable assurance that all lawyers confirm to the rules;
b. shall make reasonable efforts to ensure that other lawyers conform to Rules;
c. senior lawyer is responsible for another lawyer’s violation if:
i. she ordered the conduct or with knowledge of the specific conduct, ratifies it or
ii. she is a partner or has comparable managerial authority in law firm, direct supervisory authority over other lawyer and knows of the conduct at a time when its consequences can still be avoided or mitigated, but fails to take reasonable remedial action.
Rule 5.2 Responsibilities of Subordinate Lawyers
a. subordinate/baby lawyer is bound by Rules unless she acted at the direction of another person;
b. no violation of the Rules if lawyer was acting in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Rules 5.1, 5.2, 5.3 Responsibilities of Senior, Baby, and Non-lawyers
Rule 1.1 Competence
Lawyer shall provide competent representation to a client, which requires knowledge, skill, thoroughness and preparation reasonably necessary for representation.
Notes: lawyer need not have special training or prior experience to handle legal problem she is unfamiliar with; competent representation can also be provided by association with a lawyer of established competence in the field in question; 1.1 is violated if lawyer knows her stuff, but does not prepare; must maintain requisite knowledge and skill/ keep abreast of changes in law/engage in continuing legal education.
II. ATTORNEY-CLIENT RELATIONSHIP
Scope of Representation
Attorney-Client relationship exists/begins if/when client reasonably believes it does; Ambiguities in circumstances of AC relationship interpreted against lawyer; be clear when you are ending it/beginning it and be clear about scope of representation (divorce or tort?).
Rule 1.2 Scope of Representation
a. shall abide by client’s decisions concerning objectives of representation; may take such action on behalf of client as is implied
ity of Information
Rule 1.6 Confidentiality of Information
Shall not reveal info relating to representation of client unless:
(a) Exceptions: (1) client gives informed consent or (2) disclosure is impliedly authorized to carry out representation;
(c) shall make reasonable efforts to prevent inadvertant or unauthorized disclosure of/access to info relating to representation of client;
(b) Exceptions: may reveal info relating to representation of a client to extent lawyer believes is reasonably necessary to:
1) prevent reasonably certain death or substantial bodily harm;
· Think Garrow – victims were already dead, so no need for (b)() disclosure
· Does not matter if lawyer was involved in crime
2) prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of that which the client used lawyer’s services for;
· Only applies before or during consumation of crime
3) prevent, mitigate, rectify substantial injury to financial interests or property of another reasonably certain to rusult or which has resulted from client’s crime or fraud and in furtherance of that which the client used lawyer’s services for;
· Only applies after crime or fraud concluded