Professional Responsibility Outline

Chapter 1: Professionalism
A)     Elements of a profession
1)      Its practice requires substantial intellectual training and the use of complex judgments
2)      Clients must trust those they consult since they can’t adequately evaluate the quality of the professional’s work
3)      Self-interest is sublimated to the client’s interest and the public good; and
4)      It is self-regulating
5)      Importance of matters in the client’s lives (Prof. Perea’s element)
B)      Attorney Advertising
1)      Is the law a profession or a business?
a)      Best way to look at it: Profession w/business aspects (not working for free!)
b)      Bates v. State Bar of Arizona
(i)      Lawyers are allowed to advertise
(ii)    Lawyer advertising, if not false, deceptive, or misleading, is protected by the 1st Amendment
(iii)   Arguments for attorney advertising
¨       Absence of advertising may reflect the profession’s failure to reach out and serve the community
¨       People still need to make a living and must be entrepreneurial in order to accomplish that. 
¨       You can still zealously represent clients and maintain your obligation to the Court.
¨       Can help the public to choose good legal counsel; make sure people contact attorneys for advice, advise them how to find good attorneys, alleviate fear of prices.
¨       Advertising is not necessarily commercial – sponsoring charities, etc.
c)       Shapero v. Kentucky Bar Association
(i)      Advertising is commercially protected speech and is not subject to regulation by the government because it does not directly advance a government interest
(ii)    Took power of regulation away from the states; now a federal gov’t issue
(iii)   O’Connor Dissent – Arguments against attorney advertising
¨       If lawyers advertise in the same way other businesses do it suggests the law is more similar to a business and less of a profession. Suggests less ethical responsibilities and, more or less, diminishes the overall reputation of the profession.
¨       If allowed to advertise, lawyers will act out of financial self-interest
¨       There is substantial interest in preventing the potentially misleading effects of targeted speech and direct mail advertising. Commercialization of the profession is a slippery slope.
C)      Duty to Perform Pro Bono Work
1)      Public service as an aspect of lawyer professionalism
2)      Get experience, demonstrates care about the issue, serves unmet legal needs
3)      M.R. 6.1 – urges lawyers to aspire to render at least 50 hour per year of pro bono services, with the substantial majority of those hours devoted to providing legal services “without fee or expectation of fee” to “persons of limited means.” Also urges lawyers to voluntary contribute financial support to organizations that provide legal services to persons of limited financial means. 
a)      This rule is only aspirational and is not intended to be enforced through the disciplinary process.
4)      M.R. 6.2 – MANDATORY. Forbids a lawyer from seeking to avoid being appointed by a court to represent a client, except for good cause. 
a)      Good cause – incompetence, representation would cause a conflict of interest or would cause unreasonable financial hardship
5)      Schwarz v. Kogan (p. 12)
a)      Florida rule 4-6.1 urges members of Fla Bar to render 20 hours of pro bono legal service to the poor or contribute $350 annually to legal aid organization. Aspirational only, but has a mandatory reporting requirement – this case upheld the reporting requirement as a rational way to encourage pro bono service
D)     Fighting Bias and Prejudice
1)      M.R. 8.4, comment 3 – knowingly manifesting bias or prejudice in the course of representing a client constitutes a violation of the rule, if such actions are prejudicial to the administration of justice.
2)      Arguments for fighting bias and prejudice
a)      The law profession has to stand for justice and justice stands for equal treatment
b)      The idea of promoting equal justice is a concept originating in common law
c)       How would the legal profession be perceived if it accepted discrimination?
d)      Allowing prejudice shows disrespect for the law. 
e)      This is a part of professionalism because you can’t have a law-enforcing position and yet violate the law
3)      Sources of Regulations
a)      Model Rules
b)      Restatement of law governing lawyers
c)       Common law interpretation of laws
(i)      Tort law (malpractice)
(ii)    Constitutional standards (ineffective assistance of counsel)
d)      Rules of civil procedure (FRCP 11 – duty to reasonably investigate truth of any matters)
4)      Sanctions
a)      Disbarment – takes away the lawyer’s status as a lawyer (usually 5 yrs, not permanent)
b)      Suspension – take away lawyer’s ability to practice law
c)       Public reprimand – declaration that lawyer’s conduct was improper
d)      Private reprimand – lawyer is informed of misconduct, public is not
e)      Probation – can practice but only under specified conditions (e.g. supervision, audits, CLE’s, passing bar or ethics exam). Can be stand-alone or in conjunction w/other sanctions
E)      Reciprocal discipline
1)      A court’s ruling in a disciplinary matter is entitled to full faith and credit in other jdx’s.
2)      M.R. 8.5(a) –
F)      Disciplinary powers
1)      Generally – courts have, legislatures have none
2)      State courts – ultimate authority for disciplining lawyers à highest court of each state.
a)      Procedure – adopt a Disciplinary Board, Hearing Committees, & Disciplinary counsel 
b)      Some state legislatures may do so unless inconsistent w/judicial regulation
3)      Federal court – each district defines rules and sanctions (usually use state’s rules in which they sit)
G)     Ethics opinions
1)      Designated groups w/in the bar issue both formal and informal opinions interpreting ethics rules under hypothetical facts
2)      Advisory only, do not adjudicate actual disputes or serve as binding precedent
H)     Other laws
1)      M.R. 8.4 – “professional misconduct” – criminal act that reflects adversely on the lawyers’ hones