Professional Responsibility
Professor Reid
Fall 2017
M, Aug. 14 Class 1 Chapter 1: The Regulation of Lawyers
A. Institutions that regulate lawyers
B. State ethics codes
TEXT:
Ethics, morals, and professionalism
Why study the law governing lawyers?
Professional security so you stay out of trouble
Know the boundaries of the law so your client is not harmed by it
Why study the history and sociology of the legal profession?
Acquire useful background knowledge about the various organizations that make and enforce the rules for lawyers
So you can participate in the improvement of the profession and justice system
Need to be familiar with policy issues
What is the difference between ethics and morals?
Morals refer to the broad question of whether an act is right or wrong.
Ethics is a general concept also called moral philosophy: what is morally good and bad, right or wrong. Applies to system or theory of moral values or principles
Legal ethics: principles of conduct that members of the profession are expected to observe in the practice of law
What difference does it make that lawyers are “professionals?”
Only licensed members can work. Others are forbidden
Also, commitment to serving others
Do an unusually careful job
Profession adopts a defined role and agrees to comply with articulated stands of conduct
Only 17 percent of the public rated lawyers “high or very high” for honesty
1. The Regulation of Lawyers
Institutions that regulate lawyers
The highest state courts
Most law is made by legislatures, courts, and administrative agencies.
In most states, the highest court of the state, not the legislature, is responsible for adopting the rules of conduct that govern lawyers. This is based off of the written model provided by the ABA
Lawyers have an unusual degree of influence when it comes to regulating their own industry
How do state courts regulate lawyers?
Adopts ethic codes and court procedural rules
Sets and implements standards
Supervises agencies
Supervises administrative judicial bodies
The regulation of lawyers by the courts is an exception to the inherent powers doctrine that says that the judicial body has the power to review the law not create the law.
Some courts delegate lawyer regulatory functions to state bar associations
Not all states have only one bar association. So a lawyer admitted to practice in a state may appear in any of that state’s courts but may need separate admission to appear in the federal courts located in that state.
When a state ethics rule and the restatement are inconsistent, shouldn’t a lawyer always follow the state rule?
Its not so simple, but basically yes. Most should follow the state law except when compliance seems inconsistent with the lawyers own ethical judgment
Are lawyers who testify at legislative hearings or meet with legislators on behalf of clients required to comply with additional statutes and regulations?
Yes, in some cases
Do lawyers need separate admission to practice before an administrative agency?
In general, lawyers admitted to practice in any state may appear before an agency of that state, and before any federal agency, without a separate admission to practice before the agency
Many agencies have special ethical or procedural rules that may impose disclosure or other duties that are more stringent than those imposed by other law
State Ethics Code (applies to every lawyer in the state)
What are the functions of the state ethics codes?
Guide lawyers in evaluating what conduct is proper in various situations
Provide a basis for disciplining lawyers
Judges have ethical rules as well
Ethic codes apply to lawyers in specialized practice areas like the ABA standards for criminal justice
The ethics code does not explain most of what a lawyer needs to know about his ethical obligation. A lawyer needs only to read the ethical rules adopted by the highest court of their state.
A case in which a lawyer is charged with ethical violations is a discipline case, and the analysis of the case may be reported in an administrative or a judicial court opinion. An advisory opinion is not a decision in a case
Admission to Practice
Bar admission requirements:
Graduation from college
Graduation from law school
Application
Good moral character
Passing sc
rement whose validity is not, nor could well be, drawn in question here. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission
WEEK 2
M, Aug. 21 Class 4 Chapter 2: Lawyer Liability
A. Professional discipline
Text: pp. 63 – 90
Rules and Comments: 5.1, 5.2, 5.3, 8.3, 8.4, 8.5
8.3 if you know of a substantial question of violation of an attorney/judge, you must report to the BAR, not enough to report to a committee or other entity.
-Say you report a partner, you can be fired and nothing you can do about it. We have a DUTY to report so whistleblower statute doesn’t cover us
– 1.0F defines the word “know”
-substantial question refers to the seriousness of the possible offense and not the amount of evidence
Be prepared to discuss: Riehlmann case
The Office of Disciplinary Counsel charged Riehlmann with violating Rule 8.3(a) and Rule 8.4(c).
Rule 8.3(a) says that you have to report known instances of another attorney's misconduct.
Rule 8.4(c) says that an attorney cannot engage in conduct involving fraud, deceit or misrepresentation.
Rule 8.4(d) says that an attorney cannot engage in conduct prejudicial to the administration of justice.
Riehlmann argued that Rule 8.3(a) merely requires that an attorney possessing unprivileged knowledge of a Rules violation shall report such knowledge to an authority empowered to investigate the facts, and he did eventually report his information to Thompson's attorney, who reported it to the Court.
Rule 8.3(a) doesn't give a specific time limit for reporting.
