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Legal Profession
University of Denver School of Law
Sterling, Joyce S.

Sterling Legal Profession Fall 2013

Basis for Professionalism and Process of Professionalization
I) State Code of Ethics
A) Functions
i) Guiding lawyers in evaluating what conduct is proper
ii) Provide a basis for disciplining lawyers whom violate the code
B) Advisory opinions and case law supplement and explain the code
C) Drafted by the ABA
II) Admission to the Bar
A) The bar will examine
i) Undergrad, law school, character & fitness, bar passage & application
B) Misconduct while in Law school
i) In re Mustafa
(1) Application denied b/c applicant had pilfered $ from his student organization
(2) While he repaid the sum, and reported the discretion to his LS b/c of the short time period btwn the ‘crime’ and his application it was denied
(a) The offense was too recent for the applicant’s personal value system to have drastically altered
(b) The offense was similar to mismanagement of a client trust account

CH 2- Lawyer Liability
I) Basics
A) Three basis for claims against lawyers
i) Civil, Criminal, and disciplinary
B) Reporting duty
i) Under 8.3 lawyers have an affirmative duty to report the misconduct of other lawyers
II) Professional Discipline
A) Procedure
i) Complaint filedà Bar counsel investigatesà determine complaints viabilityàcharges filedà hearing committee sanctionsàjudicial review
B) Grounds
i) A lawyer can be disciplined for actions outside of their legal practice (Watergate)
ii) A lawyer can be disciplined for the actions of an employee
iii) Criminal conduct, even absent conviction, can be grounds for discipline
iv) Can be discipline for actions taken outside of the state where you hold your bar admission
C) MRPC 8.3 & The Reporting Requirement
i) MRPC 8.3 “Reporting Professional Misconduct”
(1) (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(2) (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(3) (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
ii) Notes
(1) Not required to report
(a) Information protected by the confidentiality rules (i.e.- 1.6)
(b) Information learned while participating in the lawyers assistance program
iii) Himmel Rule (ILL)
(1) Himmel is disbarred for failing to report another’s misconduct under MRPC 8.3
(a) Law is supposed to be a self regulating industry so the reporting req. is paramount
iv) TEST for reporting
(1) Would a reasonable lawyer in the circumstances have a firm opinion that the conduct in question more likely than not occurred
D) MRPC 5.1 & Misconduct by Colleagues and Superiors
i) MRPC 5.1 “Responsibilities of Managers, Partners, and Supervisor Lawyers
(1) (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(2) (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(3) (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(a) (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(b) (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
E) MRPC 5.2 Responsibilities of a subordinate Lawyer
i) MRPC 5.2
(1) (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(2) (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
ii) Notes
(1) Following the instructions of the superior
(a) A junior lawyer can follow the actions/instructions of a superior IFF it seems to be a reasonable solution to the issue
o If the action is clearly unreasonable the lawyer may be subject to discipline under 5.2
F) Retaliatory Firing
i) Weider (NY)
(1) Lawyers who follow the requirements of MRPC 8.3 and report unethical conduct cannot be fired in retaliation
(2) NY gives a wrongful discharge COA based upon whistleblowing
(a) All lawyers are officers of the court
ii) Jacobson (IL)
(1) The Illinois SC denied to enforce a Weider style Rule
(a) The duty to report protects the public not lawyers
iii) Kelly
(1) The Weider wrongful discharge claim extended to include law students working at firms
(a) It would be counterintuitive to apply the protection to associates and not non-bar students
III) Civil Liability for Lawyers
A) Legal Malpractice
i) Tort Malpractice elements
(1) Duty, breach, cause, damages
(2) TEST- Mistake that would not have been made by a ordinary competent and diligent lawyer under the same or similar circumstances
B) Breach of Fiduciary Duties
i) Covered by CL for fiduciaries
ii) Fiduciary duties owed to clients
(1) Safeguard clients confidences and property
(2) Avoid impermissible conflicting interests
(3) Adequately inform the client
(4) Follow client instructions
(5) Not employing adverse powers
iii) Burden of proof
(1) But for the lawyers misconduct the π would have obtained a favorable judgment or π suffered harm
C) Malpractice Insurance
i) Not required
ii) ½ of states req. disclosure of lack/coverage to clients/bar
D) Other Civil Liability
i) Breach of K
ii) Liability for violation of regulatory statutes
iii) Disqualification for conflicts of interest
IV) Client Protection Funds
A) Client protection funds are state sponsored programs designed to reimburse clients whose lawyers have stolen $ from them
B) AKA “Lawyers fund for clients protection”
i) Intentional theft would not be reimbursed thru malpractice insurance
ii) Collective responsibility
C) ABA adopted model rules for lawyers funds for client protection (1981)
D) The fund cash comes from an annual fee collected from each lawyer
i) ~10% from restitution
ii) 362 million has been paid out ever

CH 3-The Duty to Protect Client Confidences
I) MRPC 1.6 Confidentiality of Information
A) (a) A lawyer shall not reveal information r

t disclosure IFF “there is a reasonable prospect that doing so will adversely effect a material interest of the client or if the client has instructed the lawyer to keep confidences
B) “Adverse effects”- frustration of client purpose in rep., material misfortune, disadvantage, or other prejudice to the client, financial or physical harm; or personal embarrassment
C) Restatement is a LOWER standard than MRPC
D) “Reasonable prospect of harm”- whether a lawyer of reasonable caution, considering only the client’s objectives, would regard use/disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or other interests of the client
IV) Exceptions to the Duty to protect Client Confidences
A) MRPC 1.6(b)
i) (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) (1) to prevent reasonably certain death or substantial bodily harm;
(2) (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) (4) to secure legal advice about the lawyer's compliance with these Rules;
(5) (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; 
(6) (6) to comply with other law or a court order; or
(7) (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 
B) Exceptions where disclosure may be allowed or must be allowed
i) Informed consent, implied authorization
ii) May reveal to the extent reasonably necessary
iii) May Reveal To prevent reasonably certain death or SBI
iv) To prevent crime, fraud, that is reasonably certain to result in substantial injury to the financial/property interests to another
v) May Reveal To prevent, mitigate, or rectify substantial injury to the financial interests or property of another that resulted from the client’s commission of a crime or fraud in furtherance of the clients services