Chapter 1 – The Regulation of Lawyers
MR 1.0, 5.1, 5.2, 5.3, 8.1, 8.3
Institutions that regulate lawyers
The highest state courts
In most states, the highest court of the state is responsible for adopting the rules of conduct that govern lawyers.
In most states, the highest court usually performs the following roles:
· Adopts ethics codes and court procedural rules that govern lawyers;
· Sets and implements standards for licensing of lawyers;
· Supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers;
· Supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.
The “inherent powers” doctrine – Courts claim that they have the inherent authority to regulate the conducts of lawyers as a matter of common law because the courts need the authority to govern the conduct of those that appear before them.
State and local bar associations
Unified (Integrated) Bar – state bar that accepts delegated functions from the state’s highest court – membership is mandatory as opposed to a voluntary bar.
Lawyer disciplinary agencies – investigates and prosecutes misconduct that violates the state ethics code
The American Bar Association – Model Rules of Professional Conduct (no legal force)
The American Law Institute – Rest. (3rd) Law Governing Lawyers
Federal and State trial courts
· Sets rules for the conduct of lawyers in litigation
· Sanctions lawyers who violate those rules
· Hears and decides motions to disqualify lawyers who may have conflicts of interest that preclude their representation of a particular client
Adopts constitutions and statutes, including criminal laws, banking laws, securities laws, etc. that apply to everyone doing business in the state, including lawyers.
Administrative Agencies – may impose additional ethical or procedural rules on lawyers appearing before them.
Prosecutors – enormous discretion as to whether to file charges against a particular Δ (lawyer)
Malpractice insurers – sets conditions for obtaining insurance
Law firms and other employers
Admission to practice
Requirements for admission
· graduation from an accredited undergraduate college;
· graduation from a law school that meets the state’s educational standards (usually ABA accredited);
· submission of an application for admission to the bar;
· obtaining a passing score on the bar examination administered by the state, usually including a state-specific section, the Multistate Bar Examination, and the Multistate Professional Responsibility Exam;
· a finding that the application is of good moral character and is fit for the practice of law.
The bar examination
The character and fitness inquiry
· Character questionnaire
· Mental Health
A lawyer may be disciplined for any conduct that is dishonest or prejudicial to the administration of justice or that reflects lack of fitness to practice.
Reporting misconduct by other lawyers
Rule 8.3: A lawyer who “knows” of a violation by any other lawyer (an adversary, a public official, or a lawyer in own firm) must report it to the bar disciplinary agency.
Only violations that raise a “substantial question” of the lawyer’s “honesty, trustworthiness, or fitness” must be reported.
A report need not be made if it would reveal information required to be kept in confidence under Rule 1.6.
A lawyer assisting a lawyer who is in a treatment program is not required to report.
Rule 5.1: Responsibilities of partner or supervising lawyers for ensuring compliance with the ethical rules by subordinate lawyers.
Rule 5.2: Explains when a subordinate lawyer is responsible for her own conduct.
Rule 5.3: Responsibilities of lawyers who supervise nonlawyer employees for ensuring that the employees comply with the rules of professional conduct.
Kelly v. Hunton & Williams – N.Y. 1999 (pp. 99)
While Kelly was an at-will employee, he argued that his termination fits under the narrow exception to that rule.
The court held that he had a valid claim against his firm for breach of contract based on the firm’s discharging him for his insistence that the firm comply with the Code of Professional Responsibility by reporting to the Disciplinary Committee the professional misconduct of another associate.
H&W argues that since the Π was not yet admitted to any bar, he was not subject to the disciplinary rules, and the narrow exception does not apply. The court holds that it would be anomalous to permit associates that are not yet official attorneys to ignore unethical behavior that admitted associates are required to report.
Chapter 2 – The Duty to Protect Client Confidences
MR: 1.2, 1.6, 1.8, 1.13, 3.3, 4.1
The Basic Principle of Confidentiality
1. Protection of “information relating to the representation of a client”
Rule 1.6(a): Confidentiality Of Information
Information that must be protected as confidential
All information relating to the matter on which the lawyer is representing the client is confidential, except information that is generally known
Personal information relating to the client that the client would not want disclosed
Information learned from the client, and information learned from interviews, documents, photographs, observation, or other sources
Information acquired before the representation begins (such as during a preliminary consultation) and after the representation terminates
Notes or memoranda that the lawyer creates relating to the matter
The primary purpose of the confidentiality rule is to facilitate open communication between lawyers and clients.
A lawyer may reveal confidences if the lawyer keeps the client’s identity sufficiently hidden, so long as no harm could result from telling the story. Rule 1.6 is widely understood this way.
2. Protection of information if there is a reasonable prospect of harm to a client’s interests
The Restatement only prohibits revelation of such information if “there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information.” Thus the Restatement imposes a lower standard of secrecy than the ethical rules.
3. The bottom line
The line between permissible and impermissible disclosure should probably be drawn at the point of anonymity.
Exceptions to the Duty to Protect Confidences
1. Revelation of past criminal conduct – Must be kept confidential.
yer’s services to commit a fraudulent or criminal act. Continuing to represent such a client could create the appearance that the lawyer continues to be complicit with the action.
Rule 1.6 says that disclosure is discretionary.
4. Revealing confidences to obtain advice about legal ethics
Rule 1.6(b)(4) permits a lawyer to reveal confidences to the extent necessary for the lawyer to obtain advice about complying with the rules of professional conduct.
5. Using a client’s confidential information to protect the lawyer’s interests
Rule 1.6(b)(5) allows lawyers to reveal confidential information to the extent necessary to protect their own interests. It also permits a lawyer to reveal a client’s confidences so that the lawyer can collect a fee.
This exception only applies so far as “necessary to establish a claim or defense, . . . or to respond to allegations [against the lawyer].” You cannot extort money owed from a client via blackmail.
The lawyer is allowed to respond to an assertion that he is engaged in wrongdoing by revealing information necessary to defend himself. He need not wait for a lawsuit to be filed.
A lawyer should reveal no more confidential information than is necessary to vindicate the lawyer. The lawyer should minimize the number of people disclosed to and/or seek a protective order. The client should be informed before using confidential information in self-defense.
6. Revealing confidences to comply with other law or a court order
Summary of Exceptions to the Rule Against Disclosing Client Confidences:
· Client waives confidentiality – disclosure permitted if client gives informed consent
· Disclosure needed to represent the client – disclosure permitted where it is “impliedly authorized” to carry out the representation
· Past physical harms to people – disclosure prohibited
· Threatened physical harms to people – disclosure permitted (but not required) under Rule 1.6(b)(1)
· Threatened or continuing client fraud or other economic crime – disclosure to prevent the crime or fraud permitted under Rule 1.6(b)(2)
· Past client fraud or other economic crime – disclosure permitted under Rule 1.6(b)(3)
· Lawyer needs to obtain ethics advice from another lawyer – permitted by Rule 1.6(b)(4)
· Lawyers needs to prove work done to collect a fee or to defend against misconduct charge – permitted by Rule 1.6(b)(5)
· Court orders disclosure – permitted by Rule 1.6(b)(6)
Use or Disclosure of Confidential Information for Personal Gain or to benefit Another Client
Rule 1.8(b): A lawyer cannot use confidential information for personal gain or to the benefit of another client unless the use does not disadvantage the 1st client or the 1st client gives informed consent.