Canon, Code (NY), Model Rules, Model Rules 2000, Restatement 3rd,
All these are models, propagated by ABA, they are not rules until jurisdiction adopted them. Every state (federal ct) has its own version of laws governing lawyers.
CT: choose most of Model Rules 2000,
Cannons of statutory construction
Definition: know, informed consent
Comment as legislative history
Rules are influenced by moral principles
Ethics v. Morality
When say ethical, it means it comports with the rules in that jurisdiction.
Morality: general sense of morale.
MPRE: Multistate Professional Responsibility Examination. 50 multiple choice questions.
Most jurisdictions (47 states, CT not included) in US requires it as a condition granting license.
Chapter III. Professional Independence and Professional Codes
A. The Historical Backdrop P.103
Lawyers regulated by
American Bar Association: has no power to regulate your practice the law. House of delegation: model rules
State Bar Association: has its disciplinary committee. To decide whether a lawyer has violated state rules.
State Bar Association v. Lawyer X.
Penalty: disbarment, suspension, reprimand, fine.
Who knows? clients, lawyers, judge, member of public, employee
Who is likely report?
Lawyers also subject to
Judges (but only to extent lawyer is before the judge)
Common Law: K, Tort (malpractice, fraud, breach of fiduciary duty)
Agency Regulations: security regulations,
B. Self-regulation: Justifications and Critiques P.111
ABA “report of the committee on the code of professional ethics.” 1906 (p.112)
Unauthorized practice of law: It’s a crime.
Job protection for lawyers
Choice of law
State center: admitted in CT, practicing in MA, (pro hac vice, for this matter) got a call from CA
Chapter XV. Discipline and Malpractice
A. Introduction P.937
ABA standard 1.1
Purpose of lawyer discipline: to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated by their conduct that they are unable or are likely to be unable to properly discharge their professional duties.
Published by ABA
Published by state bar association
Can write a letter to State bar association to clarify how the rule applied in specific circumstance, later bar association may publish these opinions.
B. Regulatory Structures and Standards P.938
Rule 8.3 Duty to report
1) knows, (should have known, 1(g)); 2) a violation of the Rules 3) raises a substantial question.
Exception: 8.3 (c) Confidentiality of information. 1.6
Problem 1 p.938
In Re Himmel 533 N.E.2d 790 (IL 1988) p.939
Facts: lawyer 2 was suspended one year for failure to report his unprivileged knowledge of conversion of settlement funds by client’s prior lawyer (lawyer 1). “Knowledge” under the Rules is defined as “actual knowledge of the fact in question.” Rule 1.0 (g)
Rule: code jurisdiction. (model rule was not available at that time)
1. Nonreport is upon client’s request;
Ct: No. A lawyer is duty bound to uphold the rules in the code.
2. It’s privileged information.
Ct: NO. It’s unprivileged. Because info voluntarily disclosed by the client in the presence of
creates an exception to the at will nature of partnerships; that is, whether it gives rise to a duty not to expel a partner who reports suspected overbilling by another partner.
A partner believed another partner overbilled clients, and internally reported it to the firm’s managers, who investigated and discussed it with the client (who stated it was satisfied with the bills as reasonable). It is unclear from the opinion whether the matter was ever reported to disciplinary authorities. The managers told the reporting partner that the investigation did not support her allegations. She was also told she should begin seeking other employment, with various representations allegedly being made to her about interim continuation of her partner benefits. Ultimately, the benefits were discontinued, she sued the firm for breach of fiduciary duty and of partnership agreement, and the firm expelled her from the partnership. The court observed that a law firm can expel a partner to protect relationships both within the firm and with clients, The Texas court concluded that the firm did not owe the expelled partner a duty not to expel her for reporting suspected over-billing by another partner, but that the firm had breached its partnership agreement in the manner it had expelled the partner.
Dissent: we have to protect those people who report unethical problems.