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Professional Responsibility
University of Baltimore School of Law
Kelly, James J.

Professional Responsibility
Final Outline
·         Introduction to professional responsibility and regulation of lawyers
o        What is the legal profession and professional responsibility?
§         Inherent powers doctrine – judicial governs lawyers; otherwise, it would violate separation of powers
§         Malpractice = tort; Grievance = ethical violation
§         Regulatory bodies:
·         State highest court
o        Adopts ethical codes, implements licensing, supervise regulatory lawyer agencies, impose sanctions
o        Power derived from state constitutions 
·         State and local bar associations
o        Private nonprofit organizations with governmental functions assuming regulatory roles
o        Administers the bar, reviews bar applicants, undertakes reform activities
·         Disciplinary agencies
o        “Bar counsel’s offices” or “disciplinary counsels”
o        Investigating and prosecuting misconduct
·         American Bar Association
o        Private nonprofit membership organization
o        Drafts the Model Rules and Model Code
·         Law firms – requires disclosure
·         Malpractice insurers – more influential than grievances
·         Clients – quasi-regulatory roles
o        Self-regulating profession
§         5.1 – Supervisory lawyers
·         Direct supervisory authority
·         Reasonable efforts to ensure that firm is conforming to Code responsibilities
§         5.2 – Subordinate lawyers
·         Subordinate lawyers held to responsibility of professional code
·         No violation if lawyer follows supervisory lawyer’s reasonable resolution of an arguable question of duty
§         5.3 – Nonlawyer assistants
·         Measures assuring conduct compatible with professional obligations of lawyer
·         Authority ensuring person conduct is compatible with professional obligations of the lawyer
§         8.3 – Reporting professional misconduct
·         Knowledge or reckless disregard
o        Knowledge: reasonable lawyer in the circumstances would have a firm opinion that conduct in question more likely occurred than not
·         Raises substantial question (reporter is the finder of fact)
o        Honesty, trustworthiness, fitness as a lawyer
o        Substantial: material matter of clear weight and importance
·         Shall inform appropriate authority
§         8.4 – Misconduct
·         violating or assist in violating RPC
·         commit criminal act
·         engage in conduct re dishonesty, fraud, deceit or misrepresentation
·         engage in conduct prejudicial to administration of justice
·         Elements of an attorney-client relationship
o        Exists if client reasonable believes that an attorney-client relationship exists
§         No need for retainer agreement, billing, formality, meeting with client
§         Togstad v. Miller
·         Attorney said client didn’t have a medical malpractice and statute of limitations expired without attorney informing her of limitation.
·         Attorney-client relationship existed bc it was reasonably foreseeable to attorney that client would rely on advice
·         If attorney does not want case: refer to another attorney, inform about statute of limitations
§         Ambiguity always construed against the lawyer
o        Scope, competence, communication and fiduciary duty
§         1.1 – Competence
·         Competent representation
·         Legal knowledge, skill, thoroughness and preparation
·         Factual and legal investigation
·         Compensation lack of specialty with preparation and consultation with other lawyer 
§         1.2 – Scope
·         Abide by client’s decision on objective of representation, implied authorization, settlement and plea
·         Appointment does not constitute endorsement of client’s political view
·         Limited to reasonableness under the circumstance and informed consent
·         No engaging or assisting in illegal conduct except to discuss legal consequences
§         1.3 – Diligence
·         Reasonable diligence and promptness
·         Even if there is an on-going relationship, lawyer should clarify relationship at outset (in writing)
·         No procrastination
·         Carry on to conclusion of all matters undertaken for client
§         1.4 – Communication
·         Shall inform client of any informed consent decis

bodily harm
§         Suffered imminently or
§         Substantial threat of harm at later date
§         Spaulding v. Zimmerman: ∆’s disclosure aneurism could have prevented π’s serious bodily harm or death
o        Prevent client commission of crime or fraud
§         Already committed crime
§         Resulting in financial injury
§         Has used or is using legal services
o        Prevent, mitigate or rectify
§         Foiled commission of crime
§         Financial injury
§         Has used legal services
o        To secure legal advice about lawyer’s compliance with RPC
o        Establish an affirmative defense against lawyer
§         No more than necessary to vindicate lawyer
o        Comply with court order
§         Dead Bodies Case: Ethically bound not to disclose location of dead body despite court order but bounded to disclose location of escaped criminal because he was going to kill attorney
o        1.13 – Organizations
§         Enron:   accounting firm destroyed documents to cover up overtstatement of earnings
§         Requires internal and external reporting and may withdraw
o        Attorney client privilege
§         Rule of evidence
§         Applies to litigation
§         No compulsed disclosure, even when client dies
·         Swidler & Berlin v. U.S.: π sought attorney’s notes regarding meeting with decedent Forster who committed suicide resulting from involvement in White House scandal. Upheld privilege because posthumous disclosure may be as feared as disclosure during client’s lifetime
§         Elements
·         Client
o        Holds the privilege
o        His identity is not privileged
·         Communicating
o        Underlying facts not protected
o        With privileged persons