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

Professional Responsibility
Spring 2007
Text: Regulation of Lawyers, 7th Ed., Gillers
 
 
I.      The Law as a Profession.. 2
a.       Sources for Rules Governing Attorneys. 2
b.      Ethics Rules 3
c.         Professionalism    3
d.      Why the Concern About Professionalism? 4
e.       Possible Consequences of Emphasis on Professionalism… 4
II.        Creating the Attorney-Client Relationship. 4
a.         Threshold Question: Is There an Attorney-Client Relationship?. 4
b.      Agency and Fiduciary Duty 5
c.         Competence 6
d.      Privilege. 6
e.         Confidence 6
f.       Privilege and Confidence When Client is an Organizational Entity 8
g.       Duty to Inform and Advise 9
h.      Clients with Diminished Capacity or Impaired Judgment10
i.         Termination of the Attorney-Client Relationship. 11
j.       The No-Contact Rule. 11
k.         Improper Receipt of Confidences. 13
III.            Financing Legal Services. 14
a.         Attorneys’ Fees 14
b.      Division of Fees 16
c.       Pro Bono 17
IV.            Conflicts 17
a.       Conflicts Generally. 17
b.      Conflicts Between Lawyers and Clients 18
c.         Concurrent Conflicts. 19
d.      The Advocate-Witness Rule. 21
e.         Successive Conflicts. 22
f.       Imputed Disqualification and Migratory Lawyers. 23
 
I.                   The Law as a Profession
a.                  Sources for Rules Governing Attorneys
i.                    The Constitution
1.                  First Amendment shows up in issues like: lawyer advertising, solicitation, lay participation in law, rights of lawyers to speak publicly about judges or pending cases
2.                  Fifth Amendment shows up in issues like: state plans requiring lawyers to put client money in interest-bearing accounts where the interest is paid to the state to fund legal services for low-income populations
3.                  Sixth Amendment shows up in issues like: effective assistance of counsel in criminal matters, defense lawyers’ conflicts, ethical duties of lawyers whose clients lie or plan to lie under oath, policy concerns about quality of legal services
4.                  Fourteenth Amendment due process concerns show up in issues like: the conduct of judges and operation of lawyer discipline bodies
5.                  Privileges & Immunities Clause shows up in issues like: invalidating laws that impede the ability of lawyers resident in one state to practice in another
ii.                  State bar associations
1.                  In some states, membership is mandatory; in those states, the state bar is part of the mechanisms governing lawyers and the bar may propose, interpret, or enforce ethical rules.
2.                  In most states, lawyers with ethical dilemmas can write or call their local bar associations for advice about prospective conduct. If the lawyer complies with the advisory opinion, the lawyer has demonstrated a good-faith effort to behave ethically, but since such opinions aren’t binding on disciplinary bodies or the courts, the lawyer may be subject to discipline if the conduct ended up being unethical.
iii.                State constitutions and statutes (including procedural and evidentiary rules) and court rules
1.                  Conduct codes adopted by states are the most important source of rules governing lawyers.
2.                  State high courts usually rely on powers granted by the state constitutions to pro

re guidelines only
iii.                ABA Model Rules of Professional Conduct (“Rules”)
1.                  Promulgated in 1983 but amended several times, as recently as 2003
2.                  Written because Code was ambiguous and incomplete
3.                  Instead of the Code’s “canon” format, takes a “Restatement” format, with black-letter rules followed by comments to explain and illustrate the rules.
4.                  As of 2005, 45 states and DC have adopted the Rules in one form or another. No jurisdiction passed them verbatim, which means ethics rules differ in every state
iv.                 Sarbanes-Oxley Act
1.                  Passed by Congress in 2002
2.                  Required SEC to adopt rules governing the lawyers that appear/practice before SEC. Doesn’t affect lawyers not dealing with SEC.
v.                   Restatement of the Law Governing Lawyers
1.                  Promulgated in 1999
2.                  Persuasive authority only
c.                  Professionalism
i.                    Code Canon 7: “A lawyer should represent a client zealously within the bounds of the law.”
Rules Preamble [2]: “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”