Law and Ethics
Hall
Spring 2017
I. Introduction to Legal Profession
Where do “Ethics” Rules come from?
The Constitution – 1st 5th, and 6th Amendments
1st – lawyer advertising and solicitation, right of lawyers to criticize judges, etc.
6th – guarantees the effective assistance of counsel in criminal cases
5th –taking clause in connection with plans that require lawyers to use certain escrow funds
State Bar Associations
Codes of Conduct adopted by the courts
Courts have almost exclusive right to regulate the bar
This profession is almost entirely self-regulated! – separation of powers
THEORY: In addition to representing your client you should serve and protect public too (so you should be separated from the government)
Easier to challenge abuse of authority as attorney because attorneys are NOT beholden to government
Other sources of rules regulating lawyers: Statutes, procedural and evidentiary rules (privilege, for example), the common law (agency, tort, contract law, and fiduciary law), court rules, and state constitutions
Focus on the PROFESSION – lawyers reaffirm their special status in American society – Why?
The practice requires substantial intellectual training and the use of complex judgments,
Since the client cannot adequately evaluate the quality of the service, they must TRUST those they consult,
That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good, and
That the occupation is self-regulating – that is, organized in such a way as to assure the public and the courts that its members are competent, do not violate their client’s trust, and transcend their own self-interest
History of Codes and Rules for Lawyers:
1908-1962 – Cannons of Professional Conduct
1969 – Model CODE (very detailed – adopted by state supreme courts, adopted by every state but California)
1983 – Model RULES
2002-2003 – Amended Model RULES
Georgia – follows 1983 version of the Rules without the amendments
Also look to the Restatement of Rules Governing Lawyers
ABA sometimes writes opinions on ethics
II. Issues Concerning Admission to the Bar:
Control of Quality: Reducing the Likelihood of Professional Failure
The State Bar is a self-regulating organization of the state:
State Bar applies 2 filters to admission:
Bar exam – Competence filter
Fitness to Practice Law/Character Inquiries – Character filter
Character Inquiries:
With the character filter, the applicant has the duty/burden to prove that he is fit.
Character committees inspect 4 aspects of the lives of bar applicants:
Applicant’s mental health
Applicant’s honesty and integrity
Applicant’s personal life, including financial probity
Applicant’s loyalty to the American system of government
Why have a character filter?:
Protect the public – The public relies on the Bar because the free market does not regulate it the way it regulates auto mechanics
To protect the reputation of the bar – See In Matter of Prager – Applicant denied admission to the Bar because over a six year period, he was engaged in and organized and large-scale marijuana smuggling operation
The Character inquiry is essentially a weighing of “what acts?” versus “what other factors exist”:
What acts?
What other factors?
crime
How long ago
Cheating/dishonesty
Context – school, personal gain
Systematic pattern of crimes versus a one-off crime
*How predictive is this crime/act of future misconduct – The other factors ultimately get down to this “predictive” factor
Type of crime: crimes of dishonesty (perjury)
Pattern of crime – Shows a disrespect for the law
Beliefs: Odious beliefs, specifically ones about overthrowing the government or leading a racist sect can be problematic
Willfully breached a K (like not paying their mortgage)
Maybe depends on the circumstances (just lose a job?)
Stealing media online
Sold the media for profit? Just did it a couple times?
The key to this inquiry is how predictive the past misconduct is of future misconduct.
Traditionally Reviewed by the Bar:
Past bad acts
Fitness to practice the law – mental health
Honesty, integrity, and respect for the rule of law
In Re Mustafa – Mustafa had signing authority on the checking account of the Moot Court Board. He wrote several checks to himself, describing it as a loan, intending to pay it back.
Mitigating factors: he was using the money for things like bailing his sister out of jail
Aggravating factors: he tried to cover his tracks (intentionally mislabeling the pay stubs), this happened in law school
Result: DC Cir. said Mustafa did not have good moral character and fitness at this time to practice law. (think: embezzling/mingling client’s funds = grounds for disbarment)
MR 8.1 Bar Admission and Disciplinary Matters
An 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, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Frequently Cited Grounds for Delaying or Denying Admission to the Bar:
Criminal conduct – An acquittal will not prevent the criminal conduct from being weighed in the admission process
Lack of candor in the application process
Dishonesty or lack of integrity in the legal academic setting
Mental health
Financial probity
Applicant’s private life
Ability to speak English
The Bar applies a more strict filter at the front end versus one the lawyer has begun practicing.
Why?
One reason is that if you have been practicing you have a more vested interest
Note that the ABA rejected a rule that would discipline and attorney for making biased/racist statements but these can keep you from being admitted to the Bar.
III. The Attorney-Client Relationship
Formation and Termination:
Is There a Client Here?
How is a atty-client relationship formed:
Key question for whether an attorney-client relationship has been formed is, “Would a reasonable person in the client’s position have understood an attorney client relationship to have formed?”
This question is answered by case law, not the rules.
The benefit of the doubt is given to the client — so long as it is reasonable.
Factors used to assess the reasonableness of the client’s belief:
1) context – totality of the circumstances
2) formality of the setting (exchange of value — did the client buy you a beer?)
3) did atty give legal advice (super important — esp. if you say, “You have a tough case”)
4) did client exchange any confidential information or give you any documents?
It’s not always possible to prevent an attorney client relationship from forming:
Common fact pattern is a casual conversation between an attorney and a layperson about a layperson’s legal problems.
However, confiding about your legal problems to a friend who happens to be a lawyer will not by itself create an attorney-client relationship.
BUT if the client reasonably thinks you are his or her attorney, then you may have created an attorney-client relationship.
How to prevent yourself from getting in situations where you might become someone’s attorney (unintentionally)? à Issue a disclaimer like, “I can’t really give you legal advice, you probably need to consult someone with more expertise.”
Other Rules:
Case law: An attorney-client relationship is formed when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and . . . (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the service.
Money need not change hands for there to be a, A-C relationship – there need not be an agreement
Analytica v. NPD Research– company wanted to give employee stock as a reward for good service and gave financial information to law firm that employee hired for the tax advice on the transaction
Firm was disqualified in later action against NPD because there were deemed to be client in the former transaction
Duties owed to a client:
When talking about what duties are owed to a client, you have to talk about formation and termination as critical moments in the development of the relationship.
If you have become someone’s lawyer, what duties do you owe that client? (4 Main duties)
Competence – The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
You can run into problems w/ this duty if you help a friend with a LL-T problem, not thinking you are their atty. If they do nothing, and the SoL passes, you have violated the duty of competence.
Confidentiality
Communi
uct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Goals and Means of Representation (1.2)
Distribution of Authority:
An attorney has the authority over the means of representation.
What are means? à Things that don’t ultimately affect the resolution of the case.
Types of authority arising out of fiduciary/agent relationship:
Actual Authority – client can give attorney actual authority to settle (authority is express or implied by client) and client will be bound
Inherent Power – some courts have held lawyers have inherent power to settle in certain circumstances (power derived solely from the existence of the agency relationship for the protection of persons harmed by, or dealing with, a servant or agent)
Apparent Authority – authority to settle created b/c the client has said or done something that has led other party to conclude
A client has authority over the ultimate ends/goals of the representation (settle/plea or go to trial? à client’s choice).
Practice Problem: “Mrs. Niceperson,” p. 87 – Gary needs a court order to get an extension (made a mistake). Mrs. N’s assent is not enough. If he doesn’t get court approval, his case will be barred.
Ends/Means Problem:
Rules:
Lawyer must abide by a client’s decisions concerning objectives.
A lawyer shall consult w/ a client on all means.
Almost always, whether a lawyer can give an extension is a means question, but this is a closer call:
Argument for why this is an “ends” case – client’s goal is to win and that is what will happen if the Gary doesn’t get the court-ordered extension
Argument that this is a “means” case – Just because you end up letting the case be litigated, does not mean that Gary wins or your client loses
Conflicting Duties:
Your duty to your client is to be a zealous advocate, but this is complicated b/c you like Gary.
Attorney community is supposed to be collegial – you don’t want your reputation to look bad after this if Gary bad-mouths you.
BUT: You cannot put your own interest in personal reputation over your duty to the client.
Argument that granting an extension would serve your client’s interests: Gives you a reputation of being a reasonable attorney. Tougher though b/c this is outcome-determininative.
Possible Actions:
MR 1.4(a) – Mrs. N says you have to consult with your client about the means of representation. B/c this situation affects the outcome, you def. need to consult (a normal extension like a vacation, you don’t need to consult).
You need to advise client of all implications of the extension. You client will then probably not want you to alert Gary.
Withdrawal: If client says no but you still want to say something you can withdraw: MR 1.16(b)(4) – “Lawyer can w/draw if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”
But this ability to w/draw is subject to 1.16(c) – “A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”
You can always lean on your client with this withdrawal option.
Truthfulness in statements to others:
MR 4.1(a) – “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.” à Telling Gary that she will grant the extension might violate this rule if she does not correct herself.
MR 4.1(b) – “Lawyer shall not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” à Your obligation to disclose material facts is only if your client is committing a crime or fraud. Probably doesn’t apply here.
