Jay Sicklick
Fall 2011
Legal Profession
Definitions 1.0
(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
(l) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.
· (h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
· (i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
Introduction to the Course
Ten principles of professional ethics:
Rule 1.1 Competence: know what your doing; read the commentary
Rule 1.3 Diligence: exhibit some effort in responding to communications, prosecuting a case, moving case forward
Rule all, 3.3 4.1 Credibility: reveal info if required under law, fight to protect client to be admired as a credible lawyer; be honest
Rule 8.3 etc Integrity: if you are dishonest, deceitful, fraudulent
Rule 1.6, 1.7 etc Loyalty: duty of confidentiality and duty not be get in a conflicted position, a fiduciary duty, underlies whole notion of conflict of interest and is critical in confidentially
Rule 1.6 Confidentiality
Rule 3.1 – 3.9 Advocacy: how much advocacy is required to be competent? Do you have to be zealous?
Rule 6.1 Commitment to public service:
Advise and counsel candidly Rule 2.1
Balance: ethics v. morality
Moral – Whether act is right or wrong
Ethics – Principles of conduct that members of the profession are expected to observe in the practice of law. These principles are an outgrowth of the development of the legal profession itself.
Central themes:
Conflict of interest
Truthfulness – conflicts between duty to client and other interests
Duties to clients versus duties to justice system – range between ‘client-centered’ and ‘public-centered’
Personal and professional interests versus fiduciary obligations – personal interests vs. client’s interest
Self-interest as theme in regulation of lawyers – self-interest expressed in law governing lawyers
Lawyers as employees – institutional pressures on ethical judgments – ethical obligations vs. felt duty to employer
The Regulation of Lawyers:
Rule 8.1 Bar Admission and Disciplinary Matters
The rule:
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
knowingly make a false statement of material fact; or
fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admission or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
Issue w/ Rule 8.1:
knowledge: what constitutes knowledge under the rules?
Def: 1.0(f) “Knowingly,” “known,” or “knows”:
denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances
Restatement:
Concept of know or should have known à restatement is more permissive in going after lawyers à cant say I didn’t know when all the circumstances show otherwise
the Role of a Lawyer
Establishing a relationship
Clients
Role:
Shooting an elephant article:
about Keeping up the notion of a role. Analogy – sometimes as a lawyer you have to shoot the elephant- client is demanding that you do something that is within the constraints of the law and is appropriate and you don’t want to look like a fool
Neutral partisanship
Definition à
The lawyers action to achieve the fruition of the client’s ends (partisanship) through the divorcing of one’s own morality from that of the client (the principle of authority)
Justifications of NP:
Fulfilling client autonomy – the end goal of representation
Moral interests of the lawyer – or amoral interest
Interests of the system . . . the ability to advance the client’s cause (partisanship) and not be held responsible for the client’s position (neutrality)
David Luban: Neutral partisanship sees lawyers as hired guns, whose duty of loyalty to their clients means they must, if necessary, do everything the law permits to advance their clients’ interests – regardless of whether those interests are worthy or base, and regardless of how much collateral damage the lawyer inflicts on third parties.
Issues w/NP: how far can you go under the guise of NP when representing a client? When your moral obligation overrides your ethical obligation?
Acting toward an end (advocacy)
Competence (R. 1.1)
The Lawyer – Client Relationship:
Rules that are important here
1.1 Competence
1.2 C-L Dynamic
1.3 Diligence
1.4 Communications
1.5 Fees
1.6 Confidentiality
1.7-1.10 – Conflicts
Rule 1.1 Competence
Rule: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Competence varies based on situation;
Identity that competence is governed by general standard
Look at commentary – tells you what it takes to achieve competence and discuss
Could you gain competence by having mentor or getting necessary skills & knowledge
Commentary to 1.1
o Legal Knowledge and Skill
§ [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include:
· the relative complexity and specialized nature of the matter,
· the lawyer’s general experience,
· the lawyer’s training and experience in the field in question,
· the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
§ In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
§ [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
§ [3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.
o Thoroughness and Preparation
§ [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.
§ [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
o Maintaining Competence
§ [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Professional Liability & Attorney Discipline
A. Duty to report misconduct
Most states – lawyers obligated to report misconduct – Rule 8.3:
Not adopted by all states – California, Georgia, Washington – disclosure not required
Questions:
Must every lawyer (where required) report serious ethical violations by other lawyers?
Yes. Not required to report every violation – only those that raise “substantial question as to lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” – duty triggered by “knowledge” of another’s misconduct – standard for assessing knowledge – more than mere suspicion – “reasonable lawyer in circumstances would have firm opinion that conduct in question more than likely occurred
Blow whistle on boss if he does something unethical?
Yes – if it meets above test – must report any misconduct regardless of relationship – only exceptions are two mentioned above – confidentiality exception does not require client approval before reporting misconduct of another lawyer – doesn’t allow client to veto reporting of such misconduct – simply shields lawyers from reporting confidential client information – if lawyer learns of misconduct during adversary proceeding, may defer reporting until proceeding has concluded if necessary to protect clients interests
Lawyer who fails to report may be subject to discipline though there are few public reports of discipline for not reporting – possibility has motivated many to come forward with reports – has led to disclosure of some serious cases of misconduct that might have been overlooked
Himmel Case
· RE: Disclosure of other attorney misconduct far greater in Ill than any other state – 1988 Ill. Supreme Court
a violation of this rule.
o [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
o [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
B. Lawyers’ responsibility for ethical misconduct by colleagues and superiors
Addressed by Rules 5.1, 5.2, 5.3
Questions:
Are lawyers only partially responsible for violations by colleagues?
Yes. Does not discipline all lawyers in firm, or even all partners, if associate violates rule – supervising lawyers are responsible if they direct act or know of proposed act and don’t prevent it Other managers also responsible if they know of proposed actions
Subordinates may be held accountable for acts if supervisors instruction was not based on “reasonable resolution of an arguable question of professional duty”
How can a lawyer know whether another lawyer’s decision is reasonable?
Associate should – do research, seek advice from more experienced attorney – study case law and commentary – look for authority that supports or refutes – seek guidance from mentor, firm’s ethics advisor, former professor, lawyer outside firm without disclosing client confidences
Rule 5.2 Responsibilities of a Subordinate Lawyer
· Re: Explains when subordinate is responsible for her own conduct and under what circumstances she may follow orders without fear of discipline
· The rule:
o A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
o **A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.**
· Commentary:
o [1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character.
o [2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor’s reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
· Re: Language nearly identical to 5.1, explains responsibilities of lawyers who supervise non-lawyer employees to ensure their compliance with rules – explains when lawyer may be subject to discipline based on conduct of non-lawyer employee
2-1 The Little Hearing Problem:
Facts: Brand New Lawyer; Immigration law office; Instructed to handle an immigration hearing second day on the job; Handed file and treatise on train; Appears at hearing – completely unprepared; Return to Office – 2 more files thrown at her
What Should the Lawyer Do?
