I. DEFINITIONS 1.0
(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has the 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 person.
(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.
II. INTRODUCTION TO THE COURSE
a. Legal Authority
Rules are law – states adopt, modify, and amend the rules before they become the legal binding principles of attorney conduct.
Rules have two purposes:
(1) Disciplinary and
i. Rules of Professional Conduct
ii. Restatement of the Law Governing Lawyers
1. Pure guidance
iii. Case Law interpreting lawyer conduct/rules
b. Ten Principles of Professional Ethics
Know what you’re doing; read the commentary
Exhibit some effort in responding to communications, prosecuting a case, moving case forward
Rule 3.3 (outside world) and Rule 4.1 (credible to the people for whom you practice)
Reveal info if required under law, fight to protect client to be admired as a credible lawyer; be honest
Rule 8.3, etc.
If you are deceitful, dishonest, fraudulent
Rules 1.6 and 1.7
Duty of confidentiality and duty not to get in a conflicted position, a fiduciary duty, underlies whole notion of conflict of interest and is critical in confidentiality
How much advocacy is required to be competent? “Zealous” is no longer required by the Model Rules.
Commitment to Public Service
Not required by all states but some.
Advise and Counsel Candidly
Advice to clients is required.
Ethics vs. morality
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.
Moral: Whether the act is right or wrong
c. Admission to the Bar
i. Rule 8.1
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.
ii. Issue with Rule 8.1
Knowledge: What constitutes knowledge under the rules?
– Def.: 1.0(f) “Knowingly,” known,” or “knows:”
o 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 can’t say you didn’t know when all the circumstances show otherwise.
iii. Problem 1-2 (Marijuana)
– You are a law student preparing to apply for admission to the bar. You just read the application. It asks if you have used illegal drugs in the last three years. If so, you are asked to provide details. During law school, you have smoked marijuana several times, most recently three weeks ago. You heard that if you tell the bar examiners, they will reject you. What should you do?
– Rule 8.1 governs
– Admit using; deny using; plead the 5th
iv. Problem 1-3 (Doctored Resume)
– Erica from Estonia applied some “creative” information in her resume and photo shopped her transcript. Her rationale was that she had high loans and needed a job and another student
y concerning the qualifications or integrity of a judge, adjudicatory officer, or of a candidate for election or appointment to a judicial or legal office.
– Rule 8.3 Reporting Professional Misconduct
o (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.
o (b) A lawyer who knows that a judge has committed a violation of the applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
o (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
o Note: A lawyer is not required to report:
§ Information protected by confidentiality rules;
§ Information learned while participating in a lawyer’s assistance program.
– Rule 8.4 Misconduct
o It is a professional misconduct for a lawyer to:
§ (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
§ (b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
§ (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
§ (d) Engage in conduct that is prejudicial to the administration justice;
§ (e) State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
§ (f) Knowingly assist a judge or judicial officer in conduct or other law.
iii. Grievance Process
– CT Practice Book Secs. 2-29 – 2-64
o Review by Statewide Bar Counsel
o Goes to Statewide Grievance Committee or Panel
o Appeal to Court