Professional Responsibility Outline

 
PROFESSIONAL RESPONSIBILITY
KING
FALL 2014
 
 
Professionalism & Practice of Law
1)      Public Service:
a)      Accepting appointments:
i)        MR 6.2: Accepting Appointments- PAGE 123
(1)   Lawyer shall not seek to avoid appointment by a tribunal except for good cause, like:
(a)    Representing the client is likely to result in violation of PR rules or other law
(b)   Representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c)    The client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client
(2)   Comments:
(a)    Lawyers freedom to select clients is qualified: all lawyers have a responsibility to provide pro bono service
(b)   An appointed lawyer has the same obligations & limitations to the client as retained counsel: loyalty, confidentiality, cannot violate rules
(3)   Ordered to represent someone
2)      Maintaining Integrity of Profession:[members of a group pursuing a “learned art”] a)      ***MR 8.4: Misconduct- PAGE 139
i)        Professional misconduct for a lawyer to:
(1)   Violate or attempt to violate PR rules, knowingly assist or induce another to do so, or do so through acts of another
(2)   Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects
(3)   Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
(4)   Engage in conduct that is prejudicial to the administration of justice
(5)   State or imply an ability to influence improperly a gov’t agency or official or to achieve results by means that violate the PR rules or other law
(6)   Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law
ii)      Comments:
(1)   Lawyer is not prohibited from advising a client concerning action the client is legally entitled to take
(2)   Distinction was drawn in terms of offenses involving “moral turpitude”
(3)   Bias or prejudice violates administration of justice
(4)   Lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists
b)      Failure to act could be as immoral as acting
c)      **One of the most important attributes of lawyers: awareness [gear up intuition] d)      MR 8.5: Disciplinary Authority; Choice of Law- PAGE 140
i)        Disciplinary Authority: lawyer admitted to practice in this jdx is subject to the disciplinary authority of this jdx, regardless of where the lawyers conduct occurs.
(1)   Lawyer not admitted in this jdx is also subject to disciplinary authority of this jdx if lawyer provides/offers any legal services in this jdx
(2)   Can be subject to disciplinary authority of both this jdx and another jdx for same conduct
ii)      Choice of Law: Applied as follows:
(1)   Conduct in connection with a matter pending before a tribunal, the rules of the jdx in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2)   For any other conduct, the rules of the jdx in which the lawyer’s conduct occurred or if the predominate effect of the conduct is in a different jdx à the rules of that jdx will be applied
(a)    A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jdx in which the lawyer reasonably believes the predominate effect of the lawyer’s conduct will occur
iii)    Comments:
(1)   Lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations
(2)   Rule attempts to: provide only one set of rules, determine which set of rules apply, and protect from discipline lawyers who act reasonably in the face of uncertainty
iv)    Reciprocal doctrine: FL can discipline an attorney for something that the lawyer does in GA [one state could discipline more harshly than another] [up to choice of law in state] v)      States can sanction conduct that relates to the attorney’s character – such as crimes of fraud or dishonesty – even if not being prosecuted
e)      Legal Education & Bar Admission: [look at bar admission rules] i)        MR 8.1: Bar Admission and Disciplinary Matters- PAGE 136
(1)   Applicant for admission to the bar, or a lawyer in connection with a bar admission application, or in connection with a disciplinary matter, shall not:
(a)    Knowingly make a false statement of material fact; or
(b)   Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter – does not require disclosure of info protected by MR 1.6
ii)      Comments:
(1)   Duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyer’s own admission or discipline as well as of others
iii)    Character & fitness certification: [no bright-line test] (1)   USSC has held that “a state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law” [BoP on applicant to prove good character] (2)   If applicant fails to convince committee of good moral character à duty not to recommend that person to the supreme court [if committed a crime à extraordinary showing of rehab & present good moral character – positive action –  must be shown] iv)    Two ways for admission as an attorney without passing the bar exam:
(1)   Pro hac vice admission: purpose of handling a lawsuit in another state – must associate with a local counsel
(2)   Reciprocal admission: admission in one state leads to being duly admitted in another state without an exam [still subject to character & fitness] 3)      Unauthorized Practice of Law: [cannot practice if not actively admitted; cannot assist a person to engage in activities that would constitute unauthorized practice][bar represents public & ability to regulate] 4)      Sanctions for Rule Violations: [most to least severe] [determined by each state][clear & convincing] a)      Disbarment – takes away lawyer status
b)      Suspension – takes away lawyer’s a