Professional Responsibility – Keenan Spring 2012
I. Course Intro:
B. Personal morality
· Prospective Lawyering: transactional work, structuring a deal that is going to take place in the future. Higher obligations here, courts don’t tolerate the pushing the envelope on rules here
· Retrospective Lawyering: Law is clear here – lawyers can push much farther to the edge of permissible conduct than they can in prospective lawyering.
o What can I do to clean up the problem of a murder? What legal tools can I use to make the situation as best as I can for my client?
Think about how you would describe any situation to a non-lawyer Never is the right answer to say that it is a violation of X rule or Y rule. Problem is a DESCRIPTION OF THE FACTS.
Example: the L lied and the L should have told the truth. The L should have done this and this.
Branch of Government
Role of Governance of Lawyers
Makes the law by adopting legislation
Passes some laws that apply to lawyers
Implements the law thru agency action
Adopts and implements some regulations and policies that apply to lawyers
Interprets the law and makes common law
Makes law, implements law, interprets law
Makes law by adopting ethics codes
Implements law thru delegation to agencies and bar associations
Interprets the law thru court decisions
Legal profession is largely self-regulated. Designed and run by lawyers. This is the way that law and regulation and governance usually works.
In most states, the highest court in the state makes the law by adopting ethics code (model code is a version of the law)
· Not the way that the law usually work since legislature makes the law
· Judiciary Implements the law through delegation
· Many institutions that contribute to the regulation of lawyers
o Highest court in each state
o Other state courts
o State bar associations
o Lawyer disciplinary agencies
o American Law Institute
o Federal Courts
o Legislature Administrative Agency
o Prosecutors malpractice insurers
o Law firms and other employers
Highest Court in each state à has the inherent authority to regulate the lawyers in that state (inherent authority – means that it is just has it thru tradition, grants of power from times, past, agency law)
– Possess the power already
– All judges have inherent authority and they can regulate lawyers who practice law in that state and they can create code of ethics
o Adopt code of ethics – how they interact with clients, non-clients, other lawyers, etc.
o Adopt court rules – FRCP, FRE
o License lawyers – set the rules for who can enter the profession and how you kick ppl out of the profession
o Impose disciplinary sanctions on lawyers – enforce the rules thru this
– Justices don’t do this themselves. They delegate the authority to state agencies or bar assns..
– Working as a lawyer (stealing client money)
– Activity in private life
– Activity that occurred before coming a lawyer
– Interactions with clients
– Interactions with non-clients
– Interactions among lawyers
Other state courts – county and circuit courts
– All of those judges have inherent authority to regulate the conduct of lawyers who appear before them
o Can apply the code of ethics and create and apply other rules
o Catch-all rules in the rules of professional conduct
– Inherent authority applies to individual situations and also more generally when they apply local rules
o They regulate things that are important to judges in that jrx
– Anywhere you practice – must read local rules
Bar associations à organizations of lawyers, membership is mandatory in some states and voluntary in other states (where it is mandatory – receive a delegation of authority from the state supreme court; voluntary à state bureaucracy that does these things instead)
o Write the rules, regulate
o Impose sanctions
– Administer bar exams and bar admission programs
– Administer disciplinary agencies (in some states, otherwise a state bureaucracy)
o Receiving and hearing complaints about laywers
o Hold factual hearings, interpret the law
o Appellate process within that (eventually can go to State Supreme Court)
– Issue advisory ethics opinions interpreting ethics rules
o They answer hypo cases that are advisory opinions
o A judge can later find that the state bar is wrong
o Applications of the rules to particular situations
o They are online and can be very helpful like the comments to the model rules
– The judicial branch of the US govt. FC have inherent authority to regulate the conduct of lawyers who appear before them.
The role of the legislature
– Lawyers are still subject to the law that everyone else is
– Lawyers who think that b/c I’m a lawyer, I’m exempt from the general rules à if there is a conflict bn professional conduct of lawyers and the general law, the general law will always trump
A. Powers of Courts and Others to Regulate Lawyers:
(1) The courts of each state have the inherent power to regulate members of the legal profession for their conduct, both in-court and elsewhere
(2) The legal profession is governed by state ethics standards, case law, and court rules.
B. Regulation after Admission – Lawyer Discipline:
a. You are subject to discipline for wrongful conduct committed while you are acting in capacity as L
b. May be disciplined for your misconduct outside capacity as an L à illegal misconduct, or conduct “involving dishonesty, fraud deceit, or misrepresentation.”
c. You are subject to discipline for violating MRPC, and assisting or indicting another to violate a Rule.
d. Discipline may be imposed for crimes that reflect “adversely on the L’s honesty, trustworthiness, or fitness as a L.”
e. Discipline for conduct “that is prejudicial to the administration of justice,” as when you make remarks that are racist, sexist, or politically incorrect
(2) Disciplinary Authority
a. If you are admitted to A, you are subject to discipline there, even if your conduct occurs outside of A.
b. If you are not admitted to A, you are nevertheless subject to discipline in A if you provide or offer legal services there.
(3) Choice of Law:
a. If you are admitted to practice in A, but you are temporarily admitted in court B and your alleged misconduct occurs there, discipline in A would be governed by the Rules of B.
b. If your alleged misconduct occurs outside a court, the applicable Rules are those of the state where the conduct occurred unless the predominant effect of the particular conduct is elsewhere.
ROLE & REGULATION OF LAWYERS – what do lawyers do; where do they look for guidance on what they do
II. Morality of Lawyers role
A. Lawyer as Friend : L and Client are focused on each other. They know a lot of obscure things about each other. Oriented toward each other. Looking to what is good for the other person.
B. Lawyer as Bad Man – Bad man with respect to the law. If there is a loophole and some way to get around the rules the lawyer will take that path. Lawyer has no integrity to the law. Lawyer is just focused on the client.
1. Indifferent to everything around him – no fidelity to the law and no sense that I should make a decision that is best for the law or best for society.
Are there times in the representation of the client that the L changes roles form the friend to the bad man?
· Prospective/retrospective difference?
o If a D, you want a bad man à loyalty solely to the good of the client
o If not guilty, then want them to explore the big picture. Multiple objectives à you want the lawyer as friend
· If just retrospective relief, you know what the objective is – lawyer as bad man
· If just prospective relief, then you want lawyer as friend
If trying to maintain a relationship, then the hunting badger is not what you want b/c you spend all of your capital on the one deal. With lawyer as friend, then you will live to have another relationship in the future – you will leave little capital on the table for the other lawyer so you can a relationship in the future.
III. Law, Ethics and the Adversary System
A. Spaulding v. Zimmerman
1. Facts: Spaulding (minor) was a passenger in Δ’s car when he got into an accident. Π is examined by Δ’s doctor; they find he has a life threatening heart condition that may have been caused by the accident. Neither doctor nor lawyer tells Π. Π’s lawyer did not request discovery of doctor’s report. Case was settled, and because Π was a minor, settlement receives court approval. Two years later, Π finds aneurism and has surgery. He also discovers it was caused by the accident.
2. – TC vacated the settlement saying Δ’s lawyers were required to disclose aneurism to the court – failure to do so amounted to a fraudulent concealment
3. Lawyers do not have to volunteer facts to their adversaries
4. Important factors:
a. The fact that Spaulding could have died.
i. FRCP 26 – using to implement the idea of fairness, protection
1) Parties had to disclose, w/o waiting for a request, documents and witnesses relevant to any disputed facts in the case.
ii. Mistake, inadvertence, surprise, or excusable neglect. Newly discovered evid that with reasonable diligence, could have been discovered.
5. The wrong things Spaulding side did…
a. Lawyers à didn’t use the discovery tools available to get the DR’s exam report. All they do was had to ask for report.
b. Spaulding Dr à didn’t discover the aneurysm
c. Spaulding should have chosen better attorneys à he chose them based on that he knw them and felt comfortable with them.
d. Reasons that they made these mistakes à pretty new young laywer. Someone who has not done this a lot of times before. New discovery rules in MN. Lawyer had based his conduct based on assumptions, which he shouldn’t have done. He should have gotten good experts and know everything that the other side is supposed to know.
e. Father should have followed up with the Drs. He should have also managed the atty and known things that
rcumstances of the particular case, seem likely to promote justice
i. Lawyers sometimes assume what their client wants, but they should dialogue more
5. Decisions of Lawyers (Freedman)
a. To take on client in the first place
b. To continue even after client wants to do something bad
6. Hypothetical about statute of limitations – Does the client have a right to have the statute of limitations apply?
a. Simon suggests that he doesn’t if the lawyer knows he’s guilty
b. Prof Simon has a problem with this, he agrees with Freedman that you just shouldn’t take the case to begin with
F. Discussion questions 1/23:
§ The L getting in trouble for going beyond a specific threshold. Having other potential claims that the court/other client did not know about.
§ Assume that if you do not disclose the information to anyone, what kinds of trouble could you get in?
· Have to worry about their regulator and the consequences of being less truthful
· Could lose settlement, lose for the client and no fees
· Can harm your reputation (which can be more concrete)
· Could be fraud if you withheld the info to get your client more money à the regulatory agencies can bring this (FDA); criminal sanctions.
G. The Ethics Codes and Disciplinary Process
1. BAR ASSOCIATION – the chief embodiment of the concept that lawyers are a self-regulated profession.
2. 1908 – ABA Canons of Professional Ethics
3. 1970 – ABA Code of Professional Responsibility (Model Code) – confusing organization
a. ABA is a private organization – codes must be adopted before they are “law”
4. Model Rules of Professional Conduct
a. Black letter
b. Comments that illustrate rules
5. Basic purpose for discipline:
a. Protect the public
b. Need to protect the integrity of the legal system
c. Deter further unethical conduct, and where appropriate, rehabilitate the lawyer.
d. Educate others Ls and the public, thereby deterring unethical behavior among all members of the profession.
6. Consequence for a violation of an Ethics Rule – Disciplinary process
a. Client, another lawyer or judge files complaint à inquiry received
b. State Bar decides whether or not to investigate — intake office reviews (if there is jrx, complain filed opened à reviews for Rule violations, then to more investigation; lastly a hearing held)
i. Complaining party has no recourse if bar decides against it
1) Unless the lawyer’s conduct was also a legal violation
ii. SEC has their own ethics rules
iii. Federal court uses ethics rules of the state where the court resides
iv. Discovery – varies from state to state – many states allow what is similar to FRCP
v. Jury – no right to jury trial
vi. Bar bears the burden of proving the allegations
vii. Right to be heard at the hearing stage
viii. Comm’ee will either dismiss or impose sanctions
c. Review of appeal board – if imposed sanctions, the L may appeal to an internal bar appeal board
d. State court of last resort à if appeal bar upholds à L may appeal state’s court of last resort (supreme court).
i. No going into the factual record from hearing
ii. L bears the burden.
iii. Lawyer is entitled to due process
i. Private reprimand – letter of sanction
ii. Public sanctions
f. Lawyers now have a right to a federal due process hearing
7. Disciplinary sanctions:
a. Disciplined lawyers are predominantly solo practioners à 50% compared to 29% of the total lawyer population:
iii. Criminal record
iv. Substance abusers
b. Disbarred à vast majority of states readmitted on petition after period of years.
8. Can also cause legal problems (but the two problems are distinct)
i. Violation of an ethics rule dramatically increases the risk of malpractice liability
ii. Some rules are designed so that the lawyer’s conduct is unethical because it is illegal (ex. obstruction of justice)
9. Kinds of complaints and the distribution à classification of Charges Docketed; neglect and failure to communicate with client are the most common.
a. Neglect à fail to meet deadlines, do not return client calls