Professional Responsibility
King
Fall 2014
PR Outline
Legal Ethics: principles of conduct that members of the profession are expected to observe in the practice of law
· You must ask yourself whether the conduct in question violates the ethics codes; violates other laws; what is the right thing to do?
Central Themes
· Conflicts of interest
· Truthfulness
· Lawyers’ duties to clients vs. lawyers’ duties to the justice system
· Lawyers’ personal/professional interests vs. lawyers’ fiduciary
· Self-interest
1 THE REGULATION OF LAWYERS
· The highest court in each state is responsible for enforcing its rules by disciplining lawyers who violate them
· State ethics codes: guide lawyers in evaluating what conduct is proper in various situations and provides a basis for disciplining lawyers who violate the rules
-Misconduct During Law School
In re Mustafa 631 A.2d 45 (D.C. 1993)
· Used $3,510 of Moot court money for personal use, even though law school committee assured that Mustafa be accepted by the bar, the bar denied admission for failure to establish good moral character, short period had elapsed since the misconduct to be rehabilitated (how would he handle client money)
MR Preamble; scope note
MR 8.1
o Knowingly make a false statement of material fact; or
o Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority …”
· Rule 8.1 Comment—-pleading the 5th—comment to the rule expressly invites you to do so
8.4
14 LAW PRACTICE IN THE UNITED STATES
2 Lawyer Liability
· Potential claims against lawyers: disciplinary, civil, and criminal
· Violation of state ethics rules could lead to disbarment, suspension, reprimand, or another sanction
· Private sanctions (lightest form of discipline) are imposed almost twice as often as another other sanction (Prof Leslie Levin, 85)
· Misconduct that is disciplined: misappropriating client funds, comingling law firm and client funds, missing court filing deadlines, failing to respond to clients, mail fraud/tax evasion
· Between 50-75% of major disciplinary cases involve substance abuse problems
-Reporting Misconduct of other lawyer
· Duty to report misconduct and degree of legal protection available to subordinate lawyers who refuse to commit misconduct/complain of it
· Every state now operates a “lawyer assistance program,” or LAP, to help lawyers and judges with addiction problems confidentially (Cynthia Cooper, Under the Influence)
8.3
· A lawyer who “knows” of a violation by any other lawyer, must report it to the bar disciplinary agency
· Only have to report violations raising a “substantial question” of the lawyer’s honesty, trustworthiness, or fitness
· Knowledge must be more than a mere suspicion
· A report is not needed if it was reveal info required to be in confidence under rule 1.6 (but lawyer should encourage client to waive confidentiality and permit reporting if it would not prejudice the client comment 2
Lawyers’ responsibility for ethical misconduct by superiors and colleagues
(if you KNEW and didn’t do anything about it)
Problem 2-2, pg 110 (dead colleague discloses suppressed evidence, man now on death row)
· Report to the bar
· Rule may have violated for not telling is rule 3.8d Special responsibilities of a prosecutor
· Rule 8.3: Reporting Professional Misconduct (comment 3- not supposed to report every single violation of the rules—depends on the seriousness of offense
· Pursuant 8.3—report to bar
· Innocence project
· Contact defendants lawyer
5.1
· Responsibility of a partner or supervising lawyer for ensuring compliance with ethical rules by subordinate lawyers
· A lawyer cannot avoid responsibility for violation by ordering another lawyer to do the prohibited act (5.1c1)
· If any partner or “comparable managerial authority” knows of the improper conduct and does not reduce or prevent it commits a violation (5.1c2)
5.2 (Legal protections for subordinate lawyers)
· When a subordinate lawyer is responsible for her own conduct and what circumstances she may follow orders without fear of discipline
· A lawyer is not excused from responsibility just because she was “following orders” unless she can prove she didn’t know the action was improper (5.2a comment 1)
· If supervisor reasonably thinks conduct is proper, subordinate doesn’t violate, unless grossly incorrect (5.2b)
· Associate needs to assess whether supervisor’s instructions is a “reasonable resolution of an arguable question of professional duty” by researching or seeking advice
5.3
· Responsibilities of lawyers who supervise non-lawyer employees for ensuring that the employees comply with the rules of professional conflict; lawyer can be disciplined based on conduct of a non-lawyer employee
· Law students not subject to rules except 8.1
Problem 2-3 pg. 115 (lawyer giving associate cases without guidance, associate feels incompetent)
· Options: accept directions of superviser, argue, discuss with another supervisor, do research to clarify the problem, ask to be relieved from the work, resign or be fired
· Report the violation,
· 5.2 and 8.3, 8.5
· Responsibilities of a subordinate lawyer-5.2: a lawyer is bound by the rules of prof conduct notwithstanding that the lawyer acted at the direction of another person
o A subordinate lawyer does not violate the rules of prof con if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty
· Options: 1. Represent the clients 2. Resign 3. Report
· Rule 1.1: competence: a lawyer shall provide competent representation to a client: legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
· Associate co
soften the stark terms of the rule? Or does it appear to support a strict reading of the rule
What strike out to protect client’s identity
1. Lawyer is working on a police brutality case
2. Client suing police for excessive force
3. Police broke client’s wrist
4. Incident occurred Last fall
5. Charges for resisting arrest dropped in court
6. Bar
7. Bar’s name Alley
8. Officer’s name Mallory
9. Occurred Oct 10
10. Ex-wife
11. Arthur
12. Joey
13. Last name, Patterson
Exceptions to rule 1.6 in part (b)
Protection of Information if there is a reasonable prospect of harm to a client’s interest
· Only protect information is there is a reasonable protect of harm to clients interests
· Harm includes: frustration of client’s objectives, material misfortune, disadvantage, financial or physical harm, personal embarrassment
Exceptions to the duty to protect Confidences
· 1.6(b)- may reveal info if lawyer tries to persuade a client to take action that will “obviate a need for disclosure”, revelation should be narrow and limited
· 1.6b1: to prevent reasonably certain death or bodily harm
· 1.6b2-prevent the client from committing a crim or fraud
· 1.6b3-adresses situation in which the lawyer doesn’t learn of client’s crime or fraud until after it has occurred
· 1.6b4-to secure legal advice relating to compliance with the rules
· 1.6b5-may reveal to collect a fee or respond to an allegation
· 1.6b6-comply with other law or a court order
-Revelation of past criminal conduct (protect)
Problem 3-3: The Missing Persons, Scene 1 pg. 174
· Representing Robert Garrow, charged with murder of 12 year old; two other missing teenagers, says he killed them and tells you the location of the bodies
Give anonymous tip—still have to prove that it’s linked to Garrow so still being loyal to your client
Site observation
Do nothing
Rule 1.6: (b) a lawyer may reveal info relating to the rep of a client to (1) prevent reasonably certain death or substantial bodily harm
Question 3 pg.179: a state health law requires reportig the discovery of bodies-does 1.6(b)(6) permit disclosure of the location of the bodies because such disclosure is necessary “to comply with other law or a court order”
Scene 2: he tells you where the bodies are and you find them; dead girl’s dad comes asking if she is alive or dead; what do you do?
