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Professional Responsibility
University of Dayton School of Law
Saphire, Richard B.

I. PROFESSIONAL RESPONSIBILITY, SAPHIRE, SUMMER 2012

II. TOPIC 1. “PROFESSIONALISM” (SM11)

Standards applicable to lawyers, but may not be applicable to everyone else.

Lawyers are of a type of QUALITY

Who is a professional? Person certified as having certain qualities.

Judgments are made about lawyers from onset of law school – throughout course of career someone will be looking over your shoulder judging you.

“repository of trust”

A. Proposed qualities for “good lawyer”:

1. Integrity (thoughtful, deliberate, principled; tough to define, but most people agree should have) (Saphire: discerning what is right and wrong, acting on that discernment regardless of cost, and acting openly upon those discernment’s),

2. Competent,

3. Zealous Representation (aggressive; Model Rules Preamble, Model Code Canon 7),

4. Communicate,

5. Diligence,

6. Judgment (excellent if not impeccable),

7. Compassion (caring, empathy (stand in someone else’s shoes), sympathy, “good friend”),

8. Detachment (objective, independent, professional distance) → empathy,

9. Public Spirited (focused on more than bottom-line; civic minded – how work affects community, not just client and you),

10. Sympathy,

11. Law Abiding (respectful),

12. Altruistic → civility,

13. Honesty (v. deceitful),

14. Consequences (look-ahead to consequences of your actions),

B. Model Rules & Codes

1. Set minimum standards (floors) of ethical conduct regarding concepts of acceptable qualitative behavior

2. Note: Large “E” refers to professional ethics, small “e” refers to “good lawyer” ethics

· EC = ethical considerations (taken from the Model Code)

III. TOPIC 2. THE LAW OF LAWYERING

A. THE LAW OF LAWYERING

a. The law of lawyering is derived from a variety of sources: MR’s, MC’s, statutes, regs, CL, etc.

b. Structure of Laws of Lawyering:

(1) MR’s:

(a) Model Rules – MR’s are MR’s only mandatory provisions

(b) Comments – MR Comments are not binding (“guidance”), but some States have expressly adopted them as binding

(2) MC:

(a) Canons – statements of expected professional conduct

(b) Ethical Considerations (EC) – aspirational guidance; most States treat EC’s like MR comments, but some have expressly adopted as binding (see SM25)

(c) Disciplinary Rules (DR) – mandatory

c. Rules and Codes don’t exhaust the rules applicable to lawyers (i.e. Statutes, laws, CL, etc.).

B. Discipline

a. Although discipline has a punitive effect, that is not its purpose.

b. Purpose of Discipline:

(1) Protect the public,

(2) Protect the integrity of the legal system and insure administration of justice,

(3) Deter further unethical conduct and rehabilitation, and

(4) Educate other lawyers and the public

C. Sanctions:

a. Disbarment: permanent or indefinite exclusion from the bar.

b. Suspension: suspended from practicing law for period of time.

c. Censure: public reprimand (but still practice law).

d. Reprimand, Warnings, and Admonishments

D. Florida Bar v. Machin (SM20)

a. CF: Lawyer attempts to set-up trust fund for victim so victim does not testify

b. Saphire: lawyer was zealous, honest (told everyone what he was doing); compassionate, conformed his behavior, → but his conduct kind of smelled like bribery

c. Actual Holding: lawyer who attempts to buy a victim’s silence → “prejudices the administration of justice”

d. Fallback Ethical Charge: when don’t have anything else, use general misconduct code (“prejudicial to administration of justice”)

e. When an attorney recognizes a course of conduct which may have ethical implications the fact there is no present case-on-point should not be considered authorization to engage in questionable activity.

f. Court is sending strong message to the lawyers of FL → STOP THIS PRACTICE!

g. Just because Ct. can’t pin you down to an ethical rule doesn’t mean you can perform the conduct.

h. Attorney could have applied for an advisory opinion → but they never have the force of law – so, it does not necessarily protect.

i. Saphire: Ct. took a Holistic Approach (see below)

j. Model Code Preamble: “not every situation which the lawyer may encounter can be foreseen”

E. Office of Disciplinary Counsel v. Gardner, 99 Ohio St. 3d 416 (2003).

· When faced with this type of situation in which you believe the court may be acting dishonestly, follow the correct procedure to address the problem:

o Judicial inquiry with the bar

o Appeal process – make palatable appeals

o On appeal – cite the record specifically to insure your inference of bias or impropriety is cited and thus supported.

F. What rules apply to federal court practitioners? – Rules of the jurisdiction in which the court sits; and Federal Rules of Civ. Pro. – Rule 11

G. Approaches to Laws of Lawyering: (Techno v. Holistic: “e” ethics v. “E” ethics)

a. Technocratic: careful, narrow technical analysis of codes.

(1) Characterized by looking for loopholes, reading for minimums needed to satisfy ethical duties, what authority says I can’t do.

(2) Technocratic view can be detrimental to lawyer if Ct. takes Holistic approach to conduct

(3) Looking at codes for the least they are worth

b. Holistic: broader perspective analysis of codes (“smell test”)

(1) Characterized by looking at codes as providing broad professional expectations and norms; not embodying a certain set of rules but general statements to guide and influence ethical behavior.

(2) When course of conduct raises ethical flags, a lawyer ought to proceed very carefully (err on the side of ethics).

(3) Sometimes a lawyer can act ethically as far as the codes, but not as ethically as a whole (and vice versa).

IV. TOPIC 3. Basic Requirements for the Practice of Law: Admission to the Bar (and to Law School): Who Should (or Should Not) Be (or remain) a Lawyer?

A. Model Rules/Code Misconduct

1. Many kinds of illegal conduct adversely affect fitness to practice law

2. Prohibitions and discipline generally tied to relevance to practice of law and will it affect the performance thereof

3. Jamie: does not seem to be a bright line between professional and personal misconduct

4. MR and MC do not expressly require a connection between misconduct and ability to practice law

5. “Important Point”: once decide to practice law, you give up some freedoms that private citizens have

a. “Part of price of being lawyer”

6. MR Preamble: A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs [5].

B. MR 8.4 Misconduct:

1. 8.4 prohibits criminal acts affecting lawyer’s trustworthiness, honesty, or fitness, and conduct which is dishonest, deceitful, and fraudulent, and misrepresentative

2. Comment: Also includes violence, a pattern of minor offenses

a. Other kinds of offenses such as moral turpitude, the lawyer may have to answer personally, but not professionally

b. Example: adultery

C. DR1-102 Misconduct:

1. In addition to prohibiting dishonesty, deceit, fraud, and misrepresentation, the Code adds moral turpitude

D. Who may practice law in a state?

1. General rule: Qualifications must have a rational relationship to an attorney’s fitness to practice law. Example: attorney who was not married and living with someone was struck down.

2. State may restrict the practice of law to those who are members of the bar of that state.

a. Exception – pro hac vice – ability of lawyer in one state to practice in another. Completely in the discretion of the court. Only admitted for that one case.

3. What are the permissible standards for admission to a state’s bar?

a. Educational and testing qualifications are allowed.

b. Citizenship qualifications are not allowed

(1) State cannot restrict the practice of law to United States citizens. (EP)

(2) State cannot require that a person be a citizen of that state. (P/I)

c. All states limit admission to those who have good moral character

(1) Acts of moral turpitude means no good moral character – Lying, Stealing, Cheating, Fraud – person not to be trusted in a fiduciary relationship.

d. A state cannot deny admission based upon a person’s political beliefs

(1) Exceptions – may require a person swear allegiance to the constitution and laws of the U.S.

(2) Bar can deny admission to those who actively affiliate with an organization, knowing of its illegal objectives, with the specific intent to further those illegal objectives.

e. Grounds for denying admission include: refusal to answer bar questions, concealing information, or making false statements.

V. TOPIC 4. Professional Accountability: A “Private” v. “Public” Misconduct Disctinction? (SM53)

SEE NOTES IN SUPPLEMENTAL MATERIALS – NOT MUCH OF A DISTINCTION; BAR JUST NEEDS TO MAKE SOME CONNECTION BETWEEN THE CONDUCT/BEHAVIOR AND THE PRACTICE OF LAW.

VI. TOPIC 5. The Duty to Supervise Subordinates and to Report Misconduct (SM59)

A. LAWYER’S DUTY TO REPORT MISCONDUCT (SM71)

1. Duty includes reporting fellow lawyers and clients

2. Dilemma: failure to report a peer’s or client’s misconduct may result in ethical violation, but reporting the misconduct could alienate relationships, damage employment (retaliation)

3. MR 8.3 Reporting Professional Misconduct: requires (“shall”) a lawyer having knowledge to report another lawyer regarding substantial questions concerning that lawyer’s trustworthiness, honesty or fitness

· Substantial: refers to seriousness of the possible offense, not the quantum of evidence

· Knowledge: substantial knowing → not idle speculation OR unsubstantiated hearsay

· Elements of MR 8.3 Duty to Report:

1. Knowledge;

2. Another lawyer’s violation;

3. Which raises a substantial question of the other lawyer’s trustworthiness, honesty, or fitness (triggers duty)

4. DR 1-103 Disclosure of Information to Authorities: stricter, missing “substantial question”

· Elements: (1) Knowledge; (2) Another lawyer’s violation = Triggers duty to report

5. What does KNOWLEDGE mean?

Rule 1.01. Definitions

Actual Knowledge → Do not have to witness, but have access to facts/information.

6. MR 5.1 Responsibilities of a Partner or Supervisory Lawyer:

a. Partner shall make reasonable efforts to ensure firm has effective measures that firm’s lawyers conform to MR’s (a)

b. Supv. shall make reasonable efforts to ensure subordinate conforms to MR’s (b)

c. A lawyer is responsible for another lawyer’s violation if (c):

(1) A lawyer orders, or with knowledge ratifies the conduct (general principle of responsibility)

(2) A partner or supervisor knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action

7. DR 1-104 Responsibilities of a Supervisory Lawyer:

a. Firm shall make reasonable efforts to ensure firm’s lawyers conform to DR’s (a)

b. Supervisors shall make reasonable efforts to ensure subordinate conforms to DR’s (b)

c. A lawyer is responsible for another lawyer’s, or for a nonlawyers, violation if: (c)

(1) A lawyer orders, or with knowledge ratifies the conduct (general principle of responsibility)

(2) A partner or supervisor knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action

8. MR 5.2 Responsibilities of a Subordinate Lawyer:

a. A subordinate is not relieved of violations because he acted on the direction of a supervisor.

b. A subordinate does not violate the MR’s if he acts IAW the supe

employment by a close friend, relative, former client.

c. A lawyer may publicly speak or write on legal topics so long as the lawyer does not undertake to give individual advice

VIII. TOPIC 7. DECIDING WHETHER TO ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP (SM99)

· RULE 1.18 – PROSPECTIVE CLIENT RULE

A. Issues Most Important in Deciding Whether to Establish an Attorney-Client Relationship

1. BAR ADMITTANCE – LICENSURE

a. Be admitted to the Bar and licensed to practice in the jurisdiction. (relates to UPL)

(1) Graduate from law school

(2) Pass Bar exam (except in certain states)

b. Licensing: generally statutorily spelled-out → If “integrated bar”: must belong to state bar to practice law in that State .

(1) Saphire: don’t know any place where must belong to local bar;

(2) Belonging to ABA totally discretionary → bar associations are mostly used for networking.

c. To represent in a State: Admitted to highest bar in that State

(1) Reciprocity: can be waived in, without sitting for the bar exam of the state.

d. To represent in Federal Ct. in a State: Admitted to highest bar in the State Fed. Ct. sits, admitted to Fed. bar (if applicable)

(1) OHIO: no longer have to take federal exam – just go to a seminar.

(2) Apply for pro hac vice (for this case only/“for this turn”) – separate proceeding for each level.

(a) pronounced pro hack veechay.

(b) out-of-state lawyer may represent a client in court for a specific trial .

(c) Limitation: limited to appearing in court for pending case, not apply to out-of-court advice.

2. COMPETENCE

a. Can’t agree to represent unless you can provide competent services – see Comments of Rule 1.1

b. Have or can reasonably obtain requisite legal knowledge – obtain or secure.

c. Can you bill the client for the time used to gain knowledge? – If transparent – YES

d. WORKLOAD: goes to competence – if your workload is too much, you MUST stop taking clients.

3. CONFLICT OF INTEREST – COMPETING INTEREST

a. Rule 8.4 – general misconduct

b. Unethical UNLESS you obtain client’s consent

c. Just go down rules as a checklist – anything prohibited → you can’t represent, UNLESS it is waiveable by client consent.

4. NO FRIVOLOUS CLAIMS

B. Issues Which Might Foreclose a Lawyer from Representing a Client

1. Not licensed

2. “Warning”: “a lawyer shall not practice law in a jurisdiction where to do so would be a violation in that jurisdiction.” DR 3-101(1)(b).

a. See MR 5.5, Unauthorized Practice of Law (same language)

3. Not competent – MR 1.1 (not competent to do so on certain issue)

4. Client’s activity is fraudulent or criminal – MR 1.2 (not represent client in criminal or fraudulent activity)

5. Workload – MR 1.3 (cannot represent diligently because of present workload)

6. Conflict of Interest – MR 1.7 – 1.9 (conflicts of interest)

C. What are the OPTIONS:

1. Don’t represent

2. Take chances

3. Restrict your representation to conduct below which would trigger UPL

a. see MR 1.2(c) – lawyer may limit the objectives of representation if client consents,

b. Saphire: “dicey” option, and , if restrict representation, hurting client

4. Pro Hac Vice

5. Retain local counsel

IX. TOPIC 8. More on Establishing an Attorney-Client Relationship (SM114)

A. Does Lawyer Have Obligation to Represent Any Person Who Can Pay?

1. This section assumes no unethical, conflicts of interests, UPL issues, etc. which would foreclose representation.

a. Issue: Is lawyer completely free to decline client, or merely ethically constrained/req’d) to take on client regardless of lawyer’s personal desire not to?

b. Saphire: “Don’t decline lightly.”

c. If you believe you cannot competently/ethically constrained in representing the client read Rules 6.1 -6.2.

d. Sometimes to be a lawyer you must do things you don’t want to do for the benefit of the profession.

e. Rule 6.2. Assigned Counsel – if assigned may turn down if repugnant.

f. Last Lawyer in Town Law – may be the only attorney in town who can represent; if you know they cannot get other representation, you may be obligated to accept.

2. Stropnicky v. Nathanson (SM129)

a. Facts: lawyer who represents only female clients refuses to represent male solely because of his gender

b. Holding: regulated professionals (lawyer) may not discriminate against protected class (sex)

c. Saphire’s take: arbitrarily refusing clients may contribute to negative impression of lawyers as a whole; lawyers have state-granted monopoly and have taken an oath, so may be constrained.

d. Saphire: “You owe it to the client to at least listen, and then make the determination.”