PROFESSIONAL RESPONSIBILITY
PERSCHBACHER
SPRING 2016
CHAPTER 1- How Are Lawyers Regulated?
Atty’s duty to client
ABA R. 1.14(b)- when atty reasonably believes his client has a diminished capacity, is at risk of substantial physical, financial, or other harm, unless action is taken, but atty can’t act in the client’s interest, atty can take reasonably necessary action, such as consulting with people that have the ability to take action to protect the client, and in appropriate cases, seek the appmt of a guardian, ad litem, conservator, etc.
ABA R. 1.16(a)- atty shouldn’t represent a client, or if already started representing, should withdraw from representation if representing will result in violation of these rules or other law .
Atty’s Duty to Others/ Opposing Counsel
ABA R. 4.4(b)- atty who receives documents he knows was sent inadvertently, atty must promptly notify the sender.
Rico v. Mitsubishi (CA)- when atty receives materials that obviously appear to be subject to atty-client privilege, appear to be confidential and otherwise privileged, and it’s reasonably apparent that the materials were provided inadvertently, the atty should refrain from examining the materials and immediately notify the sender he has the privileged material.
Policy reasons- preserved atty’s efforts to thoroughly prepare his client’s case. Atty have obligations to client and to respect fellow attys, the judiciary, and administration of justice.
3 Core Values of Legal Profession: (1) Honesty; (2) Loyalty; (3) Confidentiality
CHAPTER 2- Sources and Application of Legal Ethics Rules
Organization of Bar
ABA R. 8.1 Maintaining the Integrity of the Profession- applicant or atty can’t (1) knowingly make false statement of material fact; or (2) not disclose a necessary fact or correct a known misapprehension, or knowingly fail to respond to demand for information from authority (exceptions- material protected under atty-client privilege), in a bar application or disciplinary matter.
Admissions to Bar Requirements
Residency Requirements- generally, residency restrictions not upheld without “substantial” reasons for discriminating against nonresidents and State can show the discrimination bears a close relation to those reasons – Piper
Barnard v. Thorstenn- Virgin Islands case, wanted to impose residency requirement and gave 5 reasons. Court struck down reasons as not adequately substantial under Piper rule.
Character Requirements- up to you to be truthful in moral character application
(CA): P didn’t pay D in car accident case. CA Bar found out and didn’t admit- said didn’t meet good moral character rqmt.
“Good Moral Character”- haven’t done anything that has historically been considered “moral turpitude”. Qualities: honesty, fairness, candor, trustworthiness, observance of fiduciary responsibilities, observance of laws, respect for others and for the judicial process. Applicant has burden of proof. Need to show rehabilitation.
Yes, rehabilitation shown through letters from judges, attys, pastor. Significant weight to fellow bar members because they have sense of responsibility to legal profession. Less weight to conduct that’s unrelated to law practice.
In re Glass: Guy who fabricated material for articles.
when State finds moral turpitude, burden on applicant to show rehabilitation. Rehabilitation involves period of exemplary conduct after misdeeds. Exemplary conduct normally involves community service. That person’s unlikely to continue to do acts of moral turpitude. The worse the misconduct, the stronger applicant’s showing of rehabilitation.
Glass didn’t meet burden- no showing of commitment to honesty, didn’t do anything beyond what’s expected of an atty in his course of “rehabilitation” (ex. Pro bono work, therapy, etc.).
Admissions to CA Bar
Requirements: (1) 18 yrs old; (2) good moral character; (3) graduated from accredited law school or unaccredited law school & pass 1st yr law student exam; (4) pass MPRE; (5) pass General Bar Exam (or atty’s bar exam if applicant already admitted in another state).
Admissions to Other State Bars & Federal Courts
Temporary- pro hac vice- “for this turn only”; atty licensed in 1 state to represent client in another state.
Limited admissions for in-house counsel, military members, pro bono services, law faculty to practice while not admitted to that state’s bar
ABA R. 5.5: attys admitted and in good standing in another state’s bar can provide limited or temporary legal services in another state.
CA- allows this for (1) legal services attys; (2) in-house counsel; (3) attys practicing temporarily in CA as part of litigation.
adopted by some states, allows atty that have practiced in a state for x yrs to gain full admission by just filling out petition.
Federal Courts: have to separately gain admittance to bar of that court; sometimes will also require atty to gain admittance in state where court located.
SCOTUS admittance: requires atty to have 3 yrs experience practicing before state courts
Sheller v. Superior Court (CA): TX pro hac vice atty misrepresentation on flyer sent to potential class action members.
court sanctions on pro hac vice attys limited to sanction available for normal CA attys. Thus court only allowed to revoke D’s pro hac vice status (akin to revoking CA atty’s license), couldn’t impose attys fees or formally reprimand D.
Attys Associations
Encouraged by ABA preamble
Nationwide Organizations
American Bar Ass’ns
State Bar Ass’ns
Local Bar Ass’ns
Sources of Guidance on Legal Ethics
State rules, statutes, rules of courts
ABA Model Rules- Professional Responsibility, Professional Conduct, Judicial Conduct
CA Rules
Advisory Opinions of Ethics Committees
Ethics Hotline
Atty Discipline
Mildest to Most serious
Reprimand (CA- referred to as private and public reproval)
ABA R. 8.1 Bar Admissions and Disciplinary Matters: Atty can’t knowingly make a false statement of act or fail to disclose a necessary fact, or correct a known misapprehension, or knowingly fail to respond to authority’s demand for information (except when atty-client privilege applies), in connection with a bar application or disciplinary matter.
ABA R. 8.2 Judicial and Legal Officers: (1) atty can’t knowingly or with reckless disregard, make a false statement about the integrity or qualifications of judge or other court or legal officer.
ABA. R. 8.3 Reporting Professional Misconduct: (1) Atty: atty who knows atty who has done something to violate the Rules or something that raises a substantial question about their honesty, trustworthiness, or fitness as atty has to tell appropriate professional authority; (2) Judge: atty that knows a judge did something that violates Rules on Judicial Conduct or that raises a substantial question about judge’s fitness for office has to inform the appropriate authority; (3) Exceptions- atty-client privilege or action committed while participating in an approved attys assistance program.
ABA R. 8.4 Misconduct: Misconduct is:
Violating, attempting violate, helping or inducing another to violate, violating through another person, these Rules;
Commit a criminal act that reflects negatively on the atty’s honesty, trustworthiness, or fitness as an
en on atty; or
Client or cause is so repugnant to atty, it’s likely to impair the atty-client relationship or the atty’s ability to represent the client.
Comment 2: good cause- if atty can’t handle matter competently or if representation would result in conflict of interest.
CRPC 2-400: atty can’t discriminate on race, national origin, sex, sexual orientation, religion, or disability when accepting or terminating atty-client relationship.
B&P 6068(h): atty can’t reject defenseless or oppressed for personal reasons.
Duty to reject some cases
ABA R. 1.16(a): atty shouldn’t represent a client or should withdraw from representation if:
Representation will result in violation of PR rules or law (ex. R. 3.1- can’t bring frivolous claims);
Atty’s physical or mental condition materially impairs his ability to represent client (also in CA); or
Atty is discharged.
FRCP R. 11: when filing a case, atty has to certify with signature, that to the best of his knowledge, information, and belief, formed after a reasonable inquiry, that the case isn’t for improper purpose, not frivolous, allegations and factual contentions are likely to have evidentiary support.
Sanctions can be imposed by motion or on court’s initiative.
CRPC 3-700 Mandatory Withdrawal: atty should withdraw if:
he knows/ should know claim is frivolous, just for the purpose of harassing or maliciously injuring another;
representing would result in violation of state bar rules
atty’s physical or mental condition impairs his ability to represent client.
Frivolous Clams:
ABA R. 3.1 Frivolous Claims: means case, where under the facts, there is no basis in existing law nor can it be supported by a good faith argument for extending, modifying, or reversing modifying law.
CRPC 3-200(A): atty can’t represent if she knows/ should know the purpose of the representation is to bring an action without probable cause, or for the purpose of harassing or injuring someone.
B&P 6068(c): it’s atty’s duty to only counsel or maintain actions or defenses that appear to him, legal or just.
Sanctions for Frivolous Claims:
Atty can be subject to professional discipline AND be sued by opposing party for malicious prosecutions. Atty can also be sanctioned by court and pay other party’s excess costs, expenses, attys fees.
FRCP R. 11: requires atty to certify w/ signature, when filing case, that claim isn’t frivolous (see text above). Court can impose sanctions if such cases arise.
Cal Code Civ Pro. 128.5, 128.7: court can order party or party’s atty to pay other parties reasonable expenses, including attys fees, incurred as the result of bad faith or frivolous actions or tactics that were solely intended to cause unnecessary delay.
