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Legal Profession
University of Connecticut School of Law
Sicklick, Jay Evan

 
 
Instructor: Jay Sicklick
 
Course: Legal Profession
 
Semester: Fall 2010
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Legal Profession Outline
 
Class #1 – Introduction, Institutions That Regulate Lawyers
Introduction
A. Ethics, Moral and Professionalism
Difference – morals vs. ethics (authors’ definitions)
            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.
Professionalism – permitted to do otherwise forbidden work, usually licensed, commitment to serving others, high degree of skill and care, internal standards of performance, adopts role and agrees to comply with articulated standards of conduct 
             
B. Central themes:
            1. Conflict of interest
            2. Truthfulness – conflicts between duty to client and other interests
            3. Duties to clients versus duties to justice system – range between ‘client-centered’ and ‘public-                              centered’
            4. Personal and professional interests versus fiduciary obligations – personal interests vs. client’s                             interest
            5. Self-interest as theme in regulation of lawyers – self-interest expressed in law governing                           lawyers
            6. Lawyers as employees – institutional pressures on ethical judgments – ethical obligations vs.                                felt duty to employer 
 
Chapter 1 – The Regulation of Lawyers
A. Institutions that regulate lawyers
            1. Highest state courts
                        Most states, highest court, not legislature, adopts rules of conduct – responsible for                           enforcement but often delegate to disciplinary agency – self-regulating
                        “Inherent powers” – courts claim inherent authority by common law to regulate lawyers                               who come before them – govern behavior in and out of court (applies when NOT given                               authority in state constitution) 
            2. State and local bar associations
                        Private, non-profit but some have governmental functions – bar exams, admission                            candidate review, discipline authority – state bar that accepts delegated functions from                                 high court is called integrated or unitary bar rather than voluntary
                        Many voluntary bars as well
            3. Lawyer disciplinary agencies
                        Investigate & prosecute misconduct violating state ethics code – large body of published                              opinions available – Lexis = “Ethics”, Westlaw = “Legal Ethics and Professional                                           Responsibility”
            4. American Bar Association
                        Private, nonprofit, founded 1878 – state bars are independent from ABA but most of                                   membership of House of Delegates from state bars – over 400,000 members – only                                     limited governmental authority – ABA rules = Model Rules of Professional Conduct – no                 legal force unless adopted by state(s) 
            5. American Law Institute
                        Private – 3,000 judges, lawyers, professors – produce restatements (Restatement (Third)                               of the Law Governing Lawyers) – not law, but best synthesis of information and covers                               wider range of legal authority than Model Rules – not always consistent with Model                          Rules – state rules may not give clear guidance – use restatement
            6. Federal and State trial courts
                        Sets rules of conduct in litigation, hears motions to sanction and disqualify – can sanction                lawyer directly for misconduct before the court & must report such conduct to                                              disciplinary counsel – federal courts adopt own rules – may follow state or provide                          additional
            7. Legislatures
                        Congress and state legislature play major role – adopt constitutions and statutes that                          pertain to all – some laws apply directly to lawyers – most states have laws re UPL
            8. Administrative agencies
                        Don’t need special admission to appear before agency but may be special ethical or                          procedural rules – ex. SEC – must comply with administrative regulations – Justice Dept.                 Office for Immigration Review have own ethical rules 
            9. Prosecutors
                        Lawyers may be charged with crimes – once was reluctance to do so – changed after                                    Watergate and S&L crisis where many lawyers were prosecuted – changed public mind                                about lawyers
            10. Malpractice insurers
                        May require firm  to adopt system to evaluate conflicts of interest, senior partner review                               of all opinion letters, maintain “tickler” systems – considered “risk management” and                                   “loss prevention” measures – reduce likelihood for malpractice liability – may provide                                 advice about ethical or professional problems, conduct audits – may have more influence                            on lawyers  than prospect of disciplinary action  
            11. Law firms and other employers
                        Firms may have additional rules of practice – ethical infrastructure – may have in-house                              ethics counsel or loss prevention counsel or ethics committees – help to establish and                                   maintain positive ethical culture in firm
            12. Clients
                        Institutional clients – major consumers of legal services with great deal of bargaining                                    power – may prohibit “block billing” (8 hour blocks without specific details), limit                           paralegal time, require oversight of attorneys, require outside audits – firms must agree to                    conditions as condition of employment
See chart on page 36 for summary of above
 
B. State ethics codes
Most important source of guidance – ABA adopted first Canons of Ethics in 1908  – based on ethics  code adopted in Alabama which were derived from lectures by George Sharswood published in 1854 – Justice Lewis Powell led initiative to rewrite canons in 1960’s – produced ABA Model Code of Professional Responsibility in 1969 – various revisions after that – Ethics 2000 Commission – 2001 – 2003 – ABA accepted most but not all of commissions recommendations – by 2004, 34 states & DC had adopted Model Rules, 15 states in process of reviewing latest round of amendments – only Alabama has not begun to consider revisions – state codes contain substantial variations from Model
Functions:
            1. Guide lawyers when evaluating conduct
            2. Provide basis for discipline when violations occur – also used by courts to evaluate conduct
Judges? – ABA Model Code of Judicial Conduct – adopted in some form in most states
Other codes? – ABA Standards of Criminal Justice, federal government lawyers, domestic relations – advisory but used as guidance
Court Opinion in Discipline Case – usually written by Bar Committee – lawyers and non-lawyers – my be reported  in court reporter
If lawyer not sure – call Bar ethics committee or Disciplinary office – may write formal inquiry but may take months for response    
    
C. Research on ethics laws
Begin wi

wyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
 
 
Law Firms And Associations
Rule 5.2 Responsibilities Of A Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) 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.
Law Firms And Associations
Rule 5.2 Responsibilities Of A Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) 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.
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Law Firms And Associations
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.