University of Connecticut School of Law
Admission to the Bar (Rule 8.1)
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:
a) make a false statement of material fact, MPC 8.1(a); or
b) 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 admissions or disciplinary authority, except that this rule does NOT require disclosure of information otherwise protected by Rule 1.6. MPC 8.1(b).
· Knowledge pursuit to the definition of the rule…8.1, is actual knowledge before having to report someone
The Role of the Lawyer: Neutral partisanship (G. Orwell)
· Neutral Partisanship – The lawyer’s 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 neutrality).
· Neutral partisanship is about advocacy – being a zealous advocate on behalf of your client, and separating your feelings and opinions.
o Client Autonomy – people should be able to fulfill goals. (the end goals of representation)
Lawyer Supervision and Professional Discipline
Lawyer’s professional misconduct – Rule 8.4
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate Rules of Professional Conduct; knowingly assist or induce another to do so or do so through the acts of another
(c) Engage in dishonesty, fraud, deceit or misrepresentation. MPC 8.4(c)
Reporting Professional Misconduct (SNITCH RULE – Rule 8.3)
(a) Under Rule 8.3(a), a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct 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.
Commentary to Rule 8.3
· Knowledge under Rule 1.0(f) is actual knowledge, but it may also be inferred from circumstances.
An isolated incident may indicate a pattern of misconduct which is why you have to report even one instance of violating the Rules
A lot of times victim might NOT even know they are being taken advantage of
Supervising and Subordinate Lawyers (Rule 5)
Two analytical questions:
Has the partner/ supervisor put in measures to assure lawyers conform to the rules?
Under what circumstances will a partners/ supervisor be liable for another lawyer’s conduct?
Responsibilities Of Partners, Managers, And Supervisory Lawyers – Rule 5.1
Under RULE 5.1 (b), a lawyer having direct supervisory authority (often partners) over another lawyer shall make reasonable efforts to assure that the other lawyers adhere to the rules of professional conduct. MPC 5.1(b).
Under RULE 5.1 (c), a supervisory lawyer shall be responsible for another subordinate lawyer’s violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved.
Commentary to Rule 5.1:
Supervisors have to set up internal policies and procedures to ensure that the Rules will be followed.
Partners and managerial lawyers have at least indirect responsibility for all work being done by the firm
Supervisor is REQUIRED to intervene if the problem can be stopped
BUT supervisory lawyer doesn’t have disciplinary liability for subordinates if he had no KNOWLEDGE
There is some tension between RULE 5.1 and 5.2
Responsibilities of A Subordinate Lawyer – Rule 5.2
· Under Rule 5.2(a), subordinate lawyers are NOT relieved of the duty to follow the Rules of Professional Conduct merely because they are supervised or, merely because the conduct they engage in might be supervised by a supervising attorney. MPC 5.2(a).
· At the same time, under Rule 5.2(b), a subordinate lawyer is NOT subject to discipline when she acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. MPC 5.2(b).
Commentary to Rule 5.2:
· Lawyer is NOT relieved of responsibility for a violation because he acted at someone else’s direction
· BUT it may relevant in determining whether the lawyer had the knowledge required to render it a violation of the Rules
o EXAMPLE: Subordinate lawyer who files 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 frivolous character of the document
Ethical Duty of Confidentiality
Duty of Confidentiality – Rule 1.6(a)
(a) A lawyer SHALL NOT reveal any information relating to the representation of a client, UNLESS:
· Client gives informed consent, or
· Disclosure is impliedly authorized in order to carry out the representation, or
· The disclosure is permitted under an exception in 1.6(b).
Commentary on 1.6(a):
A lawyer may pose a hypothetical to a fellow lawyer for the benefit of the client, but the hypo must be discreet enough to preclude any reasonable chance that the other attorney will deduce the identity of the client.
Lawyers in a firm may disclose information to each other, unless the client has instructed against.
Duty of confidentiality survives the attorney-clie
This rule addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after the act occurred, and in which the loss can be prevented, rectified or mitigated.
This rule does Not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense (without lawyer’s assistance)
Before disclosing, lawyer is required to communicate with Client (see Rule 1.4(b)(2)).
Try to get the client’s consent
Unilateral disclosure only permissible after client refused to consent.
Jay Sicklick: (b)(3) essentially looks backward and forward, while (b)(2) is essentially forward looking.
Representation ceased à Apply (b)(3).
Representation may continue à Apply (b)(2).
Other Related Rules
1.2(d) (client crime/ fraud)
Even though lawyer does NOT have to reveal, he CANNOT assist or advise a client to commit a crime or fraud and may withdraw under Rule 1.16
[MPC 1.6, comment 7] May be circumstances where a lawyer must reveal confidential information to avoid violating Rule 1.2.
[MPC 1.6, comment 15] Rule 1.2(d) requires disclosure only where permitted by Rule 1.6.
1.16 (mandatory/ discretionary withdrawal)
4.1 (truthfulness in statements to others)
Rule 8.4: It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c).
Rule 1.16 – Withdrawals
Illegality/ Ethical violation: MUST withdraw if continued representation would require the attorney to violate a law or a disciplinary rule. MPC 1.16(a)(1).
Client persists in crime or fraud: MAY withdrawal if client persists in a course of action that involves the lawyer’s services and that the lawyer reasonably believes is criminal/ fraudulent. MPC 1.16(b)(2).
Client has used attorney’s services to commit past crime/ fraud: MAY withdrawal if client has used the attorney’s services to commit a past crime or fraud. MPC 1.16(b)(3).
o “Noisy withdrawal”: A lawyer may disclose his withdrawal to the opposing party and to 3rd parties, and he may withdraw or disaffirm any opinion, document, affirmation or the like. [MPC 1.6, comment 16]