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Professional Responsibility
University of Illinois School of Law
Kordik, Ellen R.

Professional Responsibility

Professor Kordik

University of Illinois

Spring 2010

I. Law, Lawyers and Ethics
1. Introduction—the rules and laws that govern lawyer’s conduct
§ Is possible to be barred by personal decisions Atty takes in their personal lives
§ Ethics—
o The terms suggests that the course is only about philosophical rules
o The term suggests that the course is not about real law—but it is; it is about enforceable law that can result in sever consequences
o We are talking about real law here
§ What kind of law governs our behavior as lawyers
o Lawyers have to conform their conduct to ethical code and other laws—criminal, tort, civil procedure, etc
§ This other law dictates a response different than ethical rules—which one governs in that situation?
§ Rule: Other law trumps the Ethical Rules
o The Atty should represent the client zealously within the bounds of the law
§ Court decisions provide the only authoritative interpretations of the ethical rules

What are the Sources of conduct of law of professional responsibility:
§ A. Law of General Application
o 1. Agency Lawð Restatement (second) of Agency; basic idea is the lawyer when acting on behalf of client is acting as an agent of the Principal (Client)
§ Atty is Agent; Client is Principal
§ Atty is treated as a fiduciary of the Client
§ Fiduciary = a person who acts primarily for another’s benefit on matters of the undertaking
· Atty should put the principal’s interests first
§ The typical Agent is under the Control of the Principal; But the Lawyer has more autonomy than the typical Agent
§ Atty can act independently than the Client’s wishes
§ But at the same time—the Atty’s autonomy increases his responsibility for actions he does on behalf of Client
§ Lawyer may be liable for acting on behalf of Principal in situations where normal Agent would not be liable
§ Ex: Atty may be appointed as trustee of trust; or director of a Corp; or a guardian in a judicial proceeding;
· These are all special fiduciary rules
· If Atty takes on this role—then they are additionally charged with the legal obligations of those particular rules—and subject the body of law that govern that fiduciary duty
o 2. Tort Law
§ Atty can be liable for Client during representation
§ If Atty does not handle a person’s property—can be liable for Tort of Conversion
§ Tort of Negligenceð Attorney Malpractice
· Where Atty can be held liable to the Client
§ Acting in concern with Clientð
· Atty can be held liable to a third party for actions undertaking by the Client; or actions the Client did
· Atty-Client can be seen as persons acting in Concert; and a person acting in concert with a tortfeasor can be held liable to a 3rd person if the atty gives substantial aid to the tortfeasor
§ Atty retained by Client for benefit 3rd party—like when Atty is hired to write the will of the Client
o 3. Criminal Law
§ Atty can be charged with aiding and abetting
§ If Client, based on what Atty says, is charged with a Crime; or when Atty conspires with Client
§ Conspiring with client to violate law
§ Fraud, including federal mail fraud
§ Commercial theft
§ Conversion
§ Laws designed to uphold the integrity of the legal system
· Obstruction of Justice
· Concealing or destroying evidence
· Suborning perjury
o 4. Constitutional Law
§ 6th Amend guarantee of effective counsel
· If criminal defense atty does not meet this—then Constitutional violation
§ 5th, 6th Amend obligations of prosecutor
§ 1st Amend limits on lawyer advertising
· imposes limits on regulation of the profession
· SC has held that Atty-advertising is protected speech under 1st Amend—except when false or misleading
· Cannot prohibit advertising of Atty services
o But—Ethics Code can still regulate Atty advertising
§ 1st Amend restrictions on lawyer speech
· does limit ability to comment on Judges, criticize
o 5. Other Law relevant to practice area
§ Family Law Atty should be familiar with kidnap statutes as applied in child custody statutes
§ Security lawyers need to conform conduct to SEC
§ B. Laws Specifically Regulating the Conduct of Lawyers
o 1. Rules or Codes of professional responsibility
§ Model Rules of Professional Conduct
§ Model Code of Professional Responsibility
§ Model Code of Judicial Conduct
§ ABAð is a group of lawyers; but ABA rules do not have the force of law
· Are called the Model Rules b/c are just a model for State adoption
· ABA has been successful in getting states to adopt model rules
o ABA history:
§ 1908—ABA Canons of Professional Ethics
§ 1969—ABA Model Code of Professional Responsibility
· Most states adopted some form of Model Code
· Has 3 types of revisions; 9 Cannons-within each Cannon are disciplinary Rules which are the mandatory rules that state a minimum conduct that Atty should follow; and then Ethical Considerations that are not mandatory and only aspirational
· Only few states have codes that are still modeled after 1969 Code
§ 1983—ABA Model Rules of Profes

e
o (3) confidentiality
o (4) prohibited assistance
o (5) honest integrity
o (6) communication with Client
§ Facts:
o Son was in a car accident-had aorta aneurysm
o Πs doctor did not find the aneurysm; Δs doctor did but did not tell Πs prior to the settlement agreement
§ Issue: whether the lower court abused their discretion in vacating the judgment b/c the Δs atty did not tell Π about the aneurysm
§ From a lawyer’s standpointà the atty is trying to gain a competitive advantage in the Courtroom
o But from a layman’s standpointà want to completely sympathize with the Π; do not see the atty’s standpoint
§ Why do we, as law students, see the atty’s point
o b/c the Π’s atty had the responsibility to find this out himself-that Π had aorta aneurysm
§ The fact that we see this case differently as lawyersè has law school affected our moral judgment?
o Are we not outraged by things that may have outraged us before?
§ Some refer to this as Role Ethics –ethical rules apply depending on the particular role we play as an Atty
§ Should the Δ have told the Π about the Son’s condition
o Yes; is an ethical obligation to do so
o Who should have told the Π è the Δs doctor; The Δ himself
o Why did the Δ’s doctor not tell the Π? B/c he was retained by the Δ; May have assumed that other doctor would have found this out and told Π
§ Was being paid as an examining physician
§ What about the Δ? Did he have a duty to tell?
o Δ knew Π—why didn’t Δ tell about the aneurysm
o Δ may not have even known about the aneuysm—appears that Δs atty never told Δ about Πs’ condition
§ Δs atty was afraid he would tell Π b/c Π knew Δ well and that woudl damage their case
§ The insurance company is the one that retained the Δ’s atty and who Δ’s atty was working for—that is why did not tell Δ about Π’s condition
§ Also—the insurance company will most likely use the Δs atty again so Δs atty wants to get a good settlement
Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, courts will not set aside a