University of Illinois
Professor Patrick Keenan
CHAPTER 1: THE REGULATION OF LAWYERS
I. Recurring Questions:
A. What was the lawyer’s specific mistake or misdeed?
1. Where were the turning points?
B. How would you describe the situation to a non-lawyer?
1. What are the equities? Who was injured?
C. Role of lack of professional skill vs. role of bad personal ethics?
1. Often times it’s both. Identifying these is important because professional skill is a legal obligation, lack of it is an independent violation of the law and can cause other violations.
D. What are the various duties affecting the lawyer?
1. Lawyer is being pulled in lots of directions.
II. Institutions that Regulate Lawyers: lawyers are subject to these rules even when not acting as a lawyer; affect professional and personal life.
A. The highest state courts
1. In most states, the highest court, not the legislature, is responsible for adopting the rules of conduct that govern lawyers.
a) Most of the rules are based on the ABA model
b) State supreme courts often delegate primary responsibility for seeing that rules are enforced to disciplinary agencies run by lawyers.
2. Insulating lawyers, to some degree, from regulation by the executive and legislative branches can benefit society because lawyers often challenge governmental actions in the course of representing clients.
3. Role of the highest court in each state:
a) Adopt ethics codes and court procedural rules that govern lawyers
b) Set and implement standards for licensing lawyers, including educational and moral character requirements.
c) Supervise agencies that investigate and prosecute complaints of unethical conduct by lawyers; and
d) Supervise administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.
4. Inherent Powers Doctrine: Courts claim inherent authority to regulate lawyers’ conduct as a matter of common law, reasoning that they need to govern the conduct of those who appear before them.
a) Some state courts have asserted that their regulatory authority over lawyers is exclusive of other branches of government – negative inherent powers doctrine.
b) Some state courts acknowledge that all three branches of government play roles in the regulation of lawyer
B. State and Local Bar Associations
1. Most state bar associations are organized as private nonprofits, but some have governmental functions. Some courts delegate lawyer regulatory functions to them.
a) Where the state bar accepts delegated functions, they are called an integrated or unified bar rather than a voluntary bar – membership is mandatory.
2. State bars often administer bar exams and review candidates for admission.
3. In some states, they administer disciplinary agencies – issue advisory ethics opinions
4. In addition to the state organizations, there are many voluntary bar associations – city and county bar associations, associations for minorities, particular fields, etc.
C. Lawyer Disciplinary Agencies
1. Often called bar counsel’s offices or disciplinary counsels, they bear the responsibility for investigating and prosecuting misconduct that violates the state ethics codes.
a) Possible sanctions: disbarment, suspension, and public or private reprimand.
b) Usually run by the highest state court, the state bar association, or both.
D. American Bar Association
1. Although it is the primary drafter of lawyer ethics codes, the ABA has only limited governmental authority. Model rules have no legal fore unless they are adopted by the relevant governmental authority.
2. How are ethics rules written and adopted?
a) ABA committee drafts a model rule or a set of revisions to the existing rules.
b) Next, the model rule is debated and approved by the ABA as a whole through its House of Delegates.
c) Committees of the state bar association then review these model rules, sometimes at the request of their state’s highest court.
d) The state bar committee or the court may solicit comments from members of the bar and from the public.
e) Ultimately, the highest court adopts, rejects, or amends the rule.
E. American Law Institute
1. The ALI is a private organization of 3,000 judges, lawyers, and law teachers that produce summaries of the law called Restatements.
a) Restatement (Third) of the Law Governing Lawyers: not law but is the best synthesis of information about “lawyer law” and includes information about a broader range of legal authority than the Model Rules or state ethics codes.
F. Federal and State Courts
1. State and federal courts regulate lawyers by: (1) setting rules for the conduct of lawyers in litigation; (2) sanctioning lawyers who violate the rules; (3) ruling in malpractice and other cases; (4) hearing and deciding motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.
2. Federal courts adopt their own standards for bar admission, and some adopt their own ethical rules. Many adopt the same ethical rules that are in force in the state in which they are located.
1. Legislatures adopt constitutions and statutes that apply to everyone doing business in the state, including lawyers (i.e. criminal law, banking law, securities law, etc.).
H. Administrative Agencies
1. 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.
a) Many agencies have special ethical or procedural rules
I. Prosecutors: prosecutors bring criminal charges against lawyers (among others) for crimes committed in or out of practice.
J. Malpractice insurers:
1. Companies that provide malpractice insurance to lawyers set conditions for obtaining insurance. These rules form a body of “private law” that governs lawyers who contract with these companies.
K. Law firms and other Employers: many employers have their own internal rules and standards of practice. Law firms and government agencies sometimes have stricter confidentiality rules than those imposed by the state ethics codes.
1. While many individual clients have very little ability to “regulate” their lawyers, large corporations and government agencies are major consumers of legal services (and have a great deal of bargaining power with the firms).
III. State Ethics Codes
A. Functions of state ethics codes:
1. Guide lawyers in evaluating what conduct is proper in various situations.
a) Every lawyer admitted to practice in a state must comply with that state’s ethics code.
2. Provide a basis for disciplining lawyers who violate the rules.
B. The ABA also drafts the Model Code of Judicial Conduct, which sets out ethical rules for judges. It has been adopted in some form in most states.
C. Various bar organizations have recommended standards of conduct for lawyers in particular practice areas. The most influential are the ABA Standards for Criminal Justice.
D. The ethics codes do NOT explain most of what a lawyer needs to know about his ethical obligations. They provide general guidelines only.
1. Lawyer should also look to disciplinary case law and advisory ethics opinions. Should also look to “lawyer law” (e.g. legal malpractice, competent representation, etc.)
E. Advisory Opinions: written by a bar committee, sometimes in response to an inquiry from a lawyer. These opinions interpret the ethics codes and provide guidance to lawyers as to the meaning of the rules.
IV. Admission to Practice
A. Contemporary Bar Admission Requirements
1. In most states, the rules for admission to the bar are established by the state’s highest court. The licensing process is organized by state. Basic requirements:
a) Graduation from an accredited undergraduate college.
b) Graduation form a law school that meets the state’s educational standards
c) Submission of an application for admission to the bar
d) Applicant is of good moral character and fit for the practice of law
e) A passing score on the bar examination administered by the state.
2. Every state administers a bar exam to its applicants for admission though some states allow candidates to “waive in” to the bar if they pay a fee, have practiced for a specified number of years in another state, and satisfy character and fitness requirements.
3. Rule 8.1: An applicant for admission to the bar… 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.
B. The Bar Examination
1. Generally consist of: a set of essay questions, the Multistate Bar Examination (MBE), and the Multistate Professional Responsibility Examination (MPRE).
2. Critics charge that the bar favors those who can afford the bar review course, tests nothing that has not already been tested in law school, and discriminates against minorities and disabled persons.
C. The Character and Fitness Inquiry
1. Mental health: Most states have narrowed their questions to ask about mental illnesses that require hospitalization or that involve psychotic disorders.
a) Some states have created systems through which applicants with a history of emotional trouble or substance abuse can be admitted to the bar conditionally for a probationary period, during which the applicant would have to comply with specified conditions.
2. In re Mustafa
a) During his 3L year, Mustafa served as co-chief justices of the law school's moot court program, and shared access to and control over the program's checking account. Over a five-month period, Mustafa wrote thirteen checks totaling $4,331, approximately $3,510 of which he converted to his personal use.
b) Court of Appeals denied his admission to the D.C. bar partly due to the relatively short period of time that has elapsed since the date of his misconduct.
CHAPTER 2: LAWYER LIABILITY
The potential claims against lawyers can be divided into disciplinary claims, civil claims, and criminal claims. Things we want to ask:
What’s the source of law for the rules we are talking about?
What’s the process by which lawyers are disciplined?
What are the ultimate consequences that the lawyer faces in each system?
Rules can be applied across systems with different penalties.
Who are the likely complainants? What’s the evidence about the lawyer likely to look like?
Purposes or policy questions.
I. Professional Discipline
a. ABA – Purposes of Discipline
i. Protect the public.
ii. Protect the integrity of the legal system: we see practical manifestations with this in the way lawyers interact with other participants in the legal system (do they do so respectfully, disclose the appropriate information, do they ignore misconduct or try to stop it, etc.).
iii. Deter & rehabilitate lawyers: specific deterrence (individual lawyers); lawyers who s
lawyer’s duty to disclose); attorney client privilege was broken because other parties were at the meeting.
iii. Rule 5.1: establishes the responsibility of a partner or supervising lawyer for ensuring compliance with the rules by subordinate lawyers; they will be held responsible if the lawyer orders/ratifies the conduct or fails to take remedial action
iv. Rule 5.2: states when a subordinate lawyer is responsible for her own conduct; she may follow orders w/out fear of discipline when supervisor reasonably believes the conduct is proper (if supervisor is wrong, he could be disciplined).
1. How to know if supervisor’s decision is reasonable? (1) do some research; (2) ask somebody with more experience.
v. Rule 5.3: same language as 5.1 but applies to non-lawyer employees.
vi. Most states only discipline individual lawyers for violation of ethical rules, however, NY and NJ allow imposition of discipline on the firm for certain things.
vii. Law students are not subject to professional discipline but the character and fitness committee might inquire into it if they did so while participating in clinics, etc.
viii. In the Wieder case, NY’s highest court held that a lawyer cannot be fired in retaliation after reporting dishonest colleagues.
1. Lawyers fired for insisting on compliance with ethical rules are allowed to sue for wrongful discharge in some states but not others.
ix. Kelly v. Hunton & Williams
1. H&W allegedly forced Kelly's resignation and implicitly threatened to withhold a favorable job reference, in order to impede and discourage him from reporting a partner’s billing fraud to the Disciplinary Committee.
2. Plaintiff alleged that his termination fit within the exception to the employee-at-will rule in Wieder; the court agrees and extends the Wieder cause of action to unadmitted law graduates working as associates.
II. Civil liability of lawyers
a. Legal malpractice
i. Refers to a claim brought against a lawyer for professional misconduct that is alleged to have caused harm to another person.
1. May involve a tort claim for negligence or intentional misconduct, an asserted breach of contract between lawyer and client, or an allegation that the lawyer violated her fiduciary responsibility to the client. Umbrella term.
ii. For a tort claim involving negligence or intentional misconduct, a client must assert:
1. Lawyer owed a fiduciary duty to the plaintiff,
2. lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances,” and
3. that the breach of duty caused harm to the plaintiff.
iii. Existence of a duty: attorney-client relationship; contractual relationship between lawyer and client; obligations to prospective or former clients (based on the context and facts of their interactions); third parties who were never clients but were the intended beneficiaries of the lawyer’s work as a lawyer; lawyer can owe a fiduciary duty when in a position of trust.
iv. Breach of the duty: easy to state and hard to prove. Lawyer didn’t do what a reasonable competent lawyer would have done in similar circumstances. Lawyer fails to exercise knowledge, skill, prudence, and/or diligence.
1. How do you prove what a reasonable lawyer would have done? Experts.
2. Rules of Professional Conduct supply many of the substantive standards for level of care. Did the lawyer comply with the rules?
v. Causation: the law has evolved a lot in the last 15 years. But for the lawyer’s error, the outcome would have been different.
1. This essentially requires two trials in a malpractice claim. Show that there’s a duty and that the lawyer failed (by pointing to specific actions/inactions) to honor that duty. Then, show that if they had done those things, the client would have won.
a. If they wouldn’t have won anyways, there’s no harm. Lawyer can still be disciplined by the bar.