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

A. INTRO.
B. Reputation of Lawyers (what may explain “bad” impression?):
1. trouble-association: when people see a lawyer, its usually because they are in trouble,
2. win-lose situation (attribute “loss” to lawyer),
3. few bad eggs: ruin it for the rest,
4. lack of professional courtesies: not returning phone calls, not explaining/listening (lay complaints), etc.

I. TOPIC 1. THE “GOOD LAWYER” (SM23)

A. Saphire proposed qualities for “good lawyer”:
1. Integrity (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 (Model Rules Preamble, Model Code Canon 7),
4. Judgment (excellent if not impeccable),
5. Compassion (caring, empathy (stand in someone else’s shoes), sympathy, “good friend”),
6. Detachment (objective, independent),
7. Public Spirited (civic minded – how work affects community, not just client and you),
8. Altruistic,
9. Honesty (versus deceitful),
10. Consequences (look-ahead to consequences of your actions),
11. Respect (for the law and the profession) …
a. tough to be compassionate and detached at same time
b. these traits are important for success in the profession and professional reputation
12. How resolve ethical dilemmas will depend on your view of good or ideal lawyer
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

II. TOPIC 2. ADMISSION TO THE BAR

A. Hypothetical: Lesbian gets fired from Georgia AG Staff Atty. job (SM56)
1. Rationale: in Georgia same-sex sex is illegal, and the AG has a duty to enforce and uphold all laws
B. 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. Me: 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 … and in the lawyer’s personal affairs [4].
C. MR 8.4 Misconduct (Supp398):
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
D. DR1-102 Misconduct (Supp778):
1. In addition to prohibiting dishonesty, deceit, fraud, and misrepresentation, the Code adds moral turpitude
E. 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 of 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. Refusal to answer bar questions, concealing information, or making false statements are grounds for denying admission to the bar.

III. TOPIC 3. BRIEF NOTE ABOUT THE LAW OF LAWYERING (SM71)

A. THE LAW OF LAWYERING (SM71)
a. The law of lawyering is derived from a variety of sources: MR’s, MC’s, statutes, regs, CL, etc. …
b. We will focus on the ethical codes adopted by legislatures and Cts
c. Structure of Laws of Lawyering:
(1) MR’s:
(a) Model Rules – MR’s are MR’s only mandatory provisions
(b) Comments – Comments are guidance
(i) MR Comments are not binding (“guidance”), but some States have expressly adopted them as binding
d. MC:
(1) Canons – statements of expected professional conduct
(2) Ethical Considerations (EC) – aspirational guidance
(a) in most States treat EC’s like the comments (guidance), but some States expressly adopted as binding
(3) Disciplinary Rules (DR) – mandatory
e. Rules and Codes don’t exhaust the rules applicable to lawyers. see Statutes, laws, CL, etc.
2. Discipline (CB752) (did not discuss, but keep)
a. a

hearsay
(3) Saphire: if opposing Machin, would have had ethical requirement to report Machin’s bribery because meets 8.3’s definition
5. DR 1-103 Disclosure of Information to Authorities: requires (“shall”) a lawyer having knowledge to report another lawyer regarding substantial questions concerning that lawyer’s trustworthiness, honesty or fitness
(1) There is no difference between MR 8.3 and NY’s DR 1-103 regarding reporting misconduct, but is a difference in “Classic” Model Codes (Supp394) “A lawyer possessing unprivileged knowledge of a violation shall report to … authorities …”
6. Note: did not discuss following, but expressly told to read in Topic 3B
7. 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 supv. knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action
8. 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 supv. knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action
9. MR 5.2 Responsibilities of a Subordinate Lawyer:
a. A subordinate is not relieved of violations because he acted on the direction of a supv.
b. A subordinate does not violate the MR’s if he acts IAW the supervisors reasonable resolution of a Q of professional duty
10. MR 5.3 Responsibilities Regarding Nonlawyer Assistants:
partners and supervisors shall make reasonable efforts to ensure the firm has effective measures