Professional Responsibility Outline
Guide with these problems in the textbook
Start with who is your client
To determine if you have duty
If it is= duties will differ ,Or third person
Regulation and Role of a Lawyer
cant violate a comment of a rule, give context in relation to rule
cross reference to rule 1- explains a lot of basic definitions
pre amble and scope
Representatives of Clients-confidence and diligence when acting as rep for clients, maintain confidentiality, etc
Public citizens- seek to improve the law
Strengthen legal education, to help bar regulate itself
Moral beings- guided by personal conscience and regard of professional peers, strive to attain highest level of skill
Models of Lawyers and Relationships with Clients
As an instrument- goes along with what client wants them to do, focus on clients needs, values are focused on clients, decisions driven by client
Director- thinks of themselves as legal expert
Collaborators- allows client to make own decision, concern of client and outcome, who will be impacted, give info to client to ultimately make decision- informed decision (both their values and clients)
Guru- considers himself to be legal expert, with superior morality, pressure client to take action even if not what client wants
Sanctions such as 1. Disbarment, 2. Suspension, 3. Reprimand, 3. Admonition, 4. Probation, 5. Restitution, 6. Assessment of costs, 7. Limitation upon practice, appointment of a receiver, requiring that a lawyer take continuing legal education, or retake bar exam, etc.
4 factors determine aggravating oppression sanction
lawyers mental state
actual or potential injury caused by misconduct
existence of aggravating and mitigating factors
aggravating factors can be past discipline, dishonest or selfish motive, pattern of misconduct or multiple offenses, obstruction of a disciplinary proceeding, refusal to acknowledge responsibility.
Mitigating factors = personal emotional problems, physical or mental disability, absence of prior disciplinary vioatlions, selfish motive, time or effort to rectivty harm, cooperative attitude, inexperience practicing law, good character and reputation, penalties/sanctions for same conduct.
Investigations of Professional Misconduct Allegations
investigated by either the office of disciplinary counsel, or one or 33 certified grievance committees est. by local bar associations
investigations taken when GRIEVANCE is filed (counsel or committee may initiate an investigation w/o grievance if knowledge of possible misconduct)
Relator (disciplinary counsel or grievance committee, filed complaint) v. Respondent (allegedly engaged in misconduct)
Judicial and Professional Regulation of Lawyers
Admission to practice
General ideas behind regulation
Double jeopardy does not exist
Disciplinary process = solely to protect the public
Not civil or criminal, loss of license the highest form of sanction
Rule 8.3: Reporting Professional Misconduct
This rule imposes an obligation on lawyers to report certain types of ethical misconduct of other lawyers and judges.
Designed to preserve the integrity of the profession and assure public confidence in the judicial system.
Profession’s high standards are respected
Duty to report for lawyers made to Bar Counsel, judge is Judicial Conduct Commission
Knowledge= mere suspicion is not enough, but absolute certainty is not needed
Must simply have knowledge of reportable misconduct, some supporting evidence would form a firm belief of conduct and that it occurred (subjective)
KNOWLEDGE- actual knowledge of fact in question, can be inferred
Substantial Question= any conduct that would result in disbarment or suspension, e.g misconduct, theft, conversion, tampering with evidence, etc.
Lawyers do not have to self reportà lawyers have to keep an eye on one another
Ohio- there is an affirmative duty to self report
Duty to report suspended lawyers too, as well as disbarred ones
When? Within reasonable time, to protect the public
To who- bar disciplinary agency
Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct
Prohibits criminal conduct, or conduct prejudicial to the administering of justice
Failing to report discovery you are aware of
Prohibits lawyers from violating rules of conduct, and attempting to do so, or inducing another to violate rule
Example-helping another lawyer fabricate evidence
Unintentionally violating rules= does not matter, are responsible to know them, intent not important, can still be disciplined
Breaches of trust, obstructing of justice
Pattern of repeated offenses even minor= indiff to legal obligation
Rule 8.1 Bar Admission And Disciplinary Matters
Prohibits knowingly making a false statement of fact
E.g If you’re a lawyer who knows their clerk lied on bar app, have to report
Can be disciplined as a lawyer for lies on bar application
Failing to disclose fact to correct known misunderstanding as long as not protected by confidentiality (Rule 1.6) attorney/client privilege
E.g representing bar applicant, no duty to disclose
Knowingly failing to respond to a lawful demand for info from admission or disciplinary agency
KNOWLEDGE- actual knowledge of fact in question, can be inferred
Burden of proof- on applicant- prove you are fit to stand to write bar and be admitted
E.g past conduct shows repetition, bad characteristics
Past conduct violates rule, e.g fraud
If cannot show rehabilitation from crime
Inability to act honestly-civil judgements, academic, neglect of professional/financial obligations, if you have or lack requisite honestly expected of lawyers
Pattern of disregard from the law- even if minor, isolated, can indicate indifference to legal obligation
E.g traffic violations
Becoming a Licensed Lawyer
Age, education or experience, examination, taking of an oath, good moral and character
Citizenship and residency= invalidated by S.C due to constitutional grounds
Rule 8.5 Disciplinary Authority; Choice Of Law
Subject to jurisdiction where they are admitted to the bar
More than one jurisdiction can be disciplined, licensed in two states, e.g Ohio and FL, can be disciplined in both states, rec
ganization, but the lawyer does not necessarily represent any of these individuals
Some circumstances- can represent both an employer and employee, but burden of adequate communication, protection of confidential information, and appropriate conflict waivers.
Lawyer must clarify any doubtful situations, especially those where an individual might reasonably believe the lawyer represents his/her interests, as well as those of the organization.
Clients who morph
Individual clients, marry, divorce, die.
Organizations change personnel, name changes, businesses, bankruptcy
Nonclients can be characterized as this bc of relationship to clients
Third party beneficiaries of client representies, could be owed some of the same duties of competence owed clients
Lawyers who represent client-fiduciaries such as trustees, guardians, corporate directors, partners, need to mindful of fiduciary obligations their clients owe others.
Broad scope owed to third parties, lawyers obliged to assist their client-fiduciaries in fulfilling
Laws governing lawyers imputes obligations of one lawyer in a law firm to all other lawyers
Extends to law firm obligations to law firm employees, including temporary lawyers and student law clerks
Rule 1.18 Duties To Prospective Client- Client-Lawyer Relationship
Prospective Client= A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
-Confidential duty to prospective client even if no attorney-client relationship is established. Rule 1.18(b)
-No adverse representation allowed if prospective client may be significantly harmed by his/her own information disclosed to the lawyer. Rule 1.18(c)
Rule 1.16: Declining or Terminating Representation- Client-Lawyer Relationship
Lawyer’s right to withdraw: Rule 1.16(b)
No material harm to client’s interest;
Client persisting to use lawyer’s service for criminal or fraudulent purpose (lawyer’s reasonable belief);
Client has committed crime or fraud using lawyer’s service;
Fundamental disagreement between lawyer and client;
Client substantially failed to perform obligation (given reasonable warning);
Unreasonable financial burden or unreasonable difficulty to lawyer;
Other good cause.
Exceptions: ordered by tribunal. Rule 1.16(c), Reasonable practical steps to protect client’s interest upon termination.
Attorney/Client Relationship-Control & Communication