Professional Responsibility, Ellen Kordik, Fall 2012, University of Illinois
Lawyers, Law, and Ethics
1. Ethics, morals, and professionalism
2. The law governing lawyers
· MR Preamble & Scope (pages 3-7)
· General Rule: Other law trumps rules of PR; look at State Laws, local laws, Case law, ethics opinions, etc
· Sources of Law Governing Lawyers
1. Law of General Application
i. Agency Law: attys have fiduciary duties to client & can be sued for breach of fiduciary duty
§ principal = client // agent = atty
§ Atty is fiduciary to client
§ Atty can act independently than the Client’s wishes, BUT the Atty’s autonomy increases his responsibility for actions he does on behalf of Client
ii. Tort Law: A lawyer can be held liable in tort in many ways.
§ Negligenceð Attorney Malpractice
§ Acting in Concert with Client → Atty can be liable to 3rd party for actions undertaken by client
§ Atty retained by Client for benefit to 3rd Party → Ex: atty hired to write will for benefit of 3rd party
iii. Criminal Law
§ aiding & abetting – conspiring w/ client to commit crime, client commits crime based on atty's advice
§ conversion of client's property; theft
§ Obstruction of justice; concealing or destroying evidence; suborning perjury
iv. Constitutional Law
§ 6th guarantee of effective representation
§ 5th, 6th obligations of prosecutor – special obligations to turn over exculpatory evidence to defense and refrain from prejudicial statements
§ 1st limits atty advertisements; protected speech unless false or misleading (still reg'd by ethics code)
§ 1st Amend restrictions on lawyer speech (criticism of judges)
v. Other Law – family law; security lawyers and SEC laws, etc
2. Laws Specifically Regulating the Conduct of Lawyers
· ABAð is a group of lawyers; but ABA rules do not have the force of law (states adopt them as a model)
· Model Rules of Professional Conduct (2011) + 2012 Amendments
§ comments to the rules – explain how the rules should be applied, BUT they are not binding law.
§ Majority of States have their Codes based on 1983 version-including Illinois; No States are identical
· Other: Rules of procedure, Local court rules, Contempt of Court, Administrative agencies rules of practice
· Rules of evidence
§ Atty-Client Privilege → evidentiary privilege – protects atty/client communication
§ Work Product doctrine → Protects disclosure when work has been prepared in anticipation of litigation
· Ethics Opinions – issued by ABA & state bar associations
§ Formal = hypothetical questions that are presented to Bar by Attorneys; bar then publishes the opinion
§ Informal = Atty phones in a question; an answer that is not publicly distributed
§ Courts do not consider Ethical Opinions as binding; are only persuasive
· BUT if you relied on one → mitigating factor in deciding whether to issue sanctions or punishment
· Model Code of Judicial Conduct
· Restatement of the Law (Third): The Law Governing Lawyers
3. Professional rules v. moral values/Doing the right thing?
· Spaulding v. Zimmerman: D's counsel in a car accident case finds the injured P has a brain aneurism, but P’s doctors didn’t find the problem. Ds do not tell them, and P settles for less than they otherwise would.
o settlement vacated b/c Spaulding was a minor, even though it was not made in bad faith.
o No Duty to Disclose Adverse Facts: Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, Courts will not typically set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
o you are not allowed to directly or indirectly violate the rules (so you can't just ask your secretary to tell the kid)
o atty probably has duty to inform client about P's condition
· MR 1.4(b) Atty shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
o Scope MR 1.2 & comment 2 – defer to the client about settlement & expenses and concern for third parties
o Communication (MR 1.4)
i. A lawyer shall:
§ promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
· “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
§ reasonably consult with the client about the means by which the client's objectives are to be accomplished;
§ keep the client reasonably informed about the status of the matter;
4. promptly comply with reasonable requests for information; and
5. consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
ii. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
comment 5 – the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued…
comment 7 – In some circumstances, atty may be justified in delaying info, BUT atty may NOT withhold info to serve atty’s own interest/convenience or serve the interest of another person (i.e. insurance company)
o Confidentiality (MR 1.6) – atty shall not reveal information relating to the representation UNLESS client gives informed consent
· If client objects to disclosure to P, atty can still tell under 1.6(b)(1) exception as long as harm to P is “reasonably certain death or substantial bodily harm”
· MR 1.6, Comment 6: harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
· the DR has an independent duty to disclose – so maybe getting them to disclose would not be a violation
o Advisor (MR 2.1) – a lawyer may refer to moral, economic, social & political factors, that may be relevant to the client's situation.
· comment 2 – Purely technical legal advice can sometimes be inadequate → moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
o Candor Toward the Tribunal (MR 3.3) – atty shall not knowingly make a false statement of fact or law to a tribunal
o Fairness to Opposing Party and Counsel (MR 3.4) – atty shall not unlawfully obstruct another party’s access to evidence or unlawfully a
duct – Rule 8.4, Comment 2 – attys should only be professionally answerable for offenses that indicate a lack of characteristics relevant to the law practice
· violence, dishonesty, breach of trust, or serious interference with the administration of justice
· a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation → In Re Mustafa
In Re Hale: can't deny admission for political views, but can deny someone for severe racial hatred
ILL 8.4(a)(5): atty shall not engage in conduct that is prejudicial to the administration of justice
6. Professional discipline/Was Bill Clinton’s disciplinary sanction appropriate?
· Supplement: MR Preamble ¶ 5; Scope ¶ 19; MR 1.0(d), 8.1, 8.3, 8.4, 8.5
· Restatement § 5(1) and (2)
· Clinton v Jones: 5year suspension and 25k fine for lying under oath.
· Did Clinton violate a rule? → Rule 8.4 Misconduct
o 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;
o commit a criminal act that reflects adversely on the atty's honesty, trustworthiness or fitness as an atty in other respects;
· fraud, breach of trust, pattern of offenses, willfully avoiding of filing taxes, & even not paying parking tickets.
c. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
d. engage in conduct that is prejudicial to the administration of justice;
· MR 8.5(a) Disciplinary Authority – A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.
· MR 8.5(b) Discipline – Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the disciplinary rules that will apply are those of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise.
(2) For any other conduct (non pending litigation), the rules that will apply are those of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.
· A court imposing sanctions must answer the following questions:
1. What ethical duty did the lawyer violate?
2. What was the lawyer’s mental state? (Intent, knowledge, negligence)
3. What was the extent of the actual or potential injury caused by the lawyer’s misconduct? Obstruct administration of justice
4. Are there any aggravating or mitigating circumstances?
the primary purpose of disciplinary actions should NOT be to punish, but to