Professional Responsibility/Legal Ethics Outline

 
MALONE — PROFESSIONAL RESPONSIBILITY
 
OVERVIEW:
* What is “ethics” in the sense of professional responsibility?
            o          Broad: “do the right thing” in the context of the cultural/religious society you find yourself in,
            o          Narrow: we know what the “right thing” is because of RULES; someone with authority adopts rules telling you how to act in certain circumstances.
            o          These rules set the bottom line below which you get disciplined.
 
THE GRAVAMEN OF PROFESSIONAL RESPONSIBILITY RULES IS PROTECTION OF THE PUBLIC.
 
Problem 2 (character and fitness in admission to the bar):
 
You have been in practice for a few years in the city where you went to law school. Smith, a third year law student, has come to you for help. “I have been accused of cheating on the final exam in my advanced tax class,” he tells you. “I had not had time to study, and I wanted to get a good grade. The exam proctor will testify that he thought he saw me cheat, but I have denied everything. I’m afraid of what this could do to my chances of being admitted to the bar. Please help me.”
 
In addition, Smith has told you that he changed his name when he was a senior in college. His name was then Patrick Seville. Under that name, he was convicted of a misdemeanor for possession of marijuana. He asks: “Do I have to report something like that? Will the bar ever catch me?”
 
You are an old friend of the law school dean. The dean has offered not to force Smith to trial on the charge of cheating if Smith agrees to accept a failing grade in the course. He can make up the course in summer school and graduate in time to take the bar with the rest of his class. The dean has agreed not to disclose the incident to the character and fitness committee of the bar. Smith is happy to have gotten off so lightly.
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* Does cheating on an exam involve lack of moral character? 
            o          we look to various things to consider if he has good moral character, such as honesty, fairness, candor, etc., and especially evidence of rehabiliation. So, if the exam cheating happened a few years ago, and there has been no other dishonest acts since then . . . .
A.        Character & Fitness in Admission to the Bar
 
“Good Moral Character” -> includes those qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, of laws of the state and nation & respect for the rights of others and for judicial process. Rule X. sec. 1.
                       
Cal B & P §6064.1 -> “No person who advocates the overthrow of the gov’t of the U.S. or of this St by force, violence or other uncon means, shall be certified to the SCt for admissions and a license to practice law”
 
                        Criteria of CA Bar:
                                    1. the # of offenses; single or multiple
                                    2. seriousness of offense & degree of moral turpitude
                                    3. time of commission; recent or remote
                                    4. age at time of act
                                    5. all mitigating circum
                                    6. ev of rehabilitation
                                    7. opinions of others
                                    8. activities, jobs, & civic service
                                    9. other pertinent info
                       
            o          Paramount consideration is that it is the Committee’s obligation to determine the qualifications of an applicant at the the time of the application for admission.
 
            o          The Committee will look to see whether the behavior has demonstrated      moral rehabilitation sufficient to show that the applicant is of good moral character. To that effect, it will be key when the offense(s) took place –whether they are recent or happened long ago.
            o          – generally probation, parole or unfulfilled sentence is evidence that rehabilitation is not complete
            o          The applicant has the burden of showing good moral character.
            o          But once the atty is admitted, the burden shifts, and is then on the State Bar to prove by clear and convincing evidence that the atty has violated a rule. Plus, the state Supreme Court may change the bar’s choice of discipline, i.e., may lower OR raise the degree of punishment (e.g.,Bar orders a private reprimand; Court may change and mandate a public reprimand).
 
 
 
            Does it make a difference if the sentence was plea-bargained down?
                        o          No. it is till the same circumstances; not necessarily what law has been violated, but to look at the actual circumstances/facts.
 
            Is moral character just lack of moral turpitude behavior?
 
            Is cheating serious enough or is covering up worse?
                        – failure to disclose or misrepresentation much more serious than original offense
                        – SCt can overrule Bar Examiner’s finding as to moral character
                        – burden on applicant to show good moral character
                        – burden on bar then to show cause why not good mc          
 
Hallinan – SCt overrule Bar’s evaluation “adolescent misbehavior” not sufficient to disqualify applicant
 
                        Q: Would the previous conduct subject the applicant to
                             disciplinary action if he/she was an atty?
 
Does atty have an obligation to report Smith’s violation to the authorities?
No. Under MR1.6 no obligation to report and if do then violate Confidentiality   
           
M.R. 1.6 -> duty to keep client confidences
                        – subordinates duty to reveal info to bar examiners
                        – If never formally represented client, can atty reveal
                        info under subpoena? NO. still confidential info
                        – letters of reference for non-client w/ cheating
                        history either (1) don’t write letter or (2) get consent to disclose info
 
                        Obligation of Law School -> not necessary to reveal
                        everything; should disclose serious matters
 
-Is this inquiry relevant to how he will practice law? it serves as a predictor:
-it lets people know that he had good moral character at some point;
-it is a guarantee of minimal competence (since he passed the bar).
 
*what about his desire to deny everything?
Rule 8.1 says that he can make no misrepresentation; the handout from class 1 lists what’s considered in deciding if the incident is relevant.
*the point to remember is that a failure to reveal things that happened in the past brings the transgression up to date!! the worst thing to do is to continue lying (since becomes a present lie!
 
*what about the misdemeanor conviction? does that show lack of good moral character? everything needs to be considered overall, but it may not be the kind of thing which reflects on good moral character; if it had happened several times recently it starts to show disrespect