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

PROFESSIONAL RESPONSIBILITY
Kordik, Fall 2008
 
Lawyers, Law, and Ethics
 
I)       Introduction: Rules and Laws that Govern Lawyers’ Conduct
A)    Two categories of law governing lawyers’ conduct:
1)      Law of General Application
2)      Law that specifically regulates lawyers’ conduct
(a)    Case law and ethics opinions interpret
B)    Law of General Application
1)      Agency Law—Restatement (Second) of Agency
(a)    Lawyer acts as an agent of client; must act as fiduciary
(b)   Lawyer has more autonomy and more power
(i)     Might still be held liable for following questionable directives of principle
2)      Tort Law—can be held liable in tort
(a)    Malpractice
(b)   Acting in concert with client—relates to acting as client’s agent
3)      Criminal Law—can be indicted and convicted for actions in representing a client
(a)    Aiding and abetting liability
4)      Constitutional Law—grants guarantees to effective counsel
5)      Other areas of law may provide conduct governing lawyer
C)    Laws Specifically Regulating Lawyers’ Conduct
1)      Rules and Codes of Professional Responsibility
(a)    Model Rules of Professional Conduct
(i)     Format of black-letter rules followed by explanatory comments
(ii)   As of 2004, 47 states adopted a version of the Model Rules
(iii)No special set of rules adopted in federal court
(b)   Model Code of Professional Responsibility
(i)     ABA had this before they’d created the Model Rules in 1983
(ii)   Criticized for embodying outdated assumptions about what lawyers do and how they do it
(c)    Canons of Professional Ethics
(i)     Prior to the codes, the ABA had these somewhat vague statements
2)      Rules of Procedure
(a)    Rules of Civil and Criminal Procedure
3)      Local Court Rules—may provide some supplement to other rules
4)      Law of Contempt of Court
(a)    May be held in civil contempt if you disobey the rules
(b)   May also be held in criminal contempt
5)      Administrative Agencies—specific rules of practice
6)      Rules of Evidence
II)    The Role of a Lawyer
A)    Doing the Right Thing—Adversary Ethics
1)      Spaulding v. Zimmerman: The defense counsel in a settlement case finds the injured plaintiff has a brain aneurism, but the plaintiff’s doctors didn’t find the problem. The defendants do not tell them, and the plaintiffs settle for less than they otherwise would.
(a)    Consider duty owed by defendant Zimmerman (driver of the car that caused the accident) to plaintiff Spaulding (passenger of car)
(b)   Court held that the settlement could be vacated because Spaulding was a minor, even though it was not made in bad faith.
2)      No Duty to Disclose Adverse Facts: Courts will not typically set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
(a)    Cannot make an affirmative misstatement to an opposing party (MR 1.4(a))
B)    Applicable Rules
1)      Scope of Representation and Authority (MR 1.2)
(a)    1.2(a): Lawyer should abide by client’s decisions about objectives of representation and shall consult with client
(i)     Lawyer can take action that is impliedly authorized to carry out representation
(ii)   Client makes decision to settle a matter
(iii)Criminal case: abide by client’s decision (after consultation) as to plea to enter, whether to waive jury trial, and whether client will testify
(b)   1.2(c): can limit scope of representation, so long as reasonable
(c)    If lawyer and client disagree about matters, they should consult and find a mutually acceptable resolution (Comment 2 to MR 1.2)
(i)     Clients typically defer to lawyer’s skill for technical, legal, and tactical matters
(ii)   Lawyers typically defer to clients regarding expenses and concern for third parties
2)      Communication (MR 1.4)
(a)    1.4(a)(1)-(4): Lawyer shall:
(i)     (1) promptly inform client of any decision or circumstance the requires client’s informed consent
(ii)   (2) reasonably consult with client regarding the means by which objectives are to be accomplished
(iii)(3) keep the client reasonably informed about the status of the matter
(iv)(4) promptly comply with reasonable requests for information
(v)   (5) consult with client about any relevant limitation on lawyer’s conduct when lawyer knows that the client expects assistance that aren’t permitted by law
(b)   1.4(b): Lawyer should explain a matter to the extent reasonably necessary such that client can make an informed decision about representation
(i)     Provide a reasonable amount of information necessary for client’s involvement—may depend on circumstances of time, litigation, and situation (Comment 5 to MR 1.4)
(ii)   Lawyer may withhold information when client would likely act imprudently to an immediate communication, but not just for the lawyer’s or a random’s interest. (Comment 7 to MR 1.4)
·         Court order may provide that information is not disclosed to client.
3)      Confidentiality of Information (MR 1.6)
(a)    Pre-2002 Rule provided more strictly that information not be disclosed—fewer exceptions
(b)   Current Rule: Lawyer shall not reveal information relating to the representation of a client, unless:
(i)     There is informed consent (lawyer has adequately explained risks and reasonable alternatives to client)
(ii)   The disclosure is impliedly authorized in order to carry out the representation
·         i.e., lawyer drafting trust agreement can disclose information if it will serve client’s interests; lawyer’s secretary would likely be able to see papers to make copies
(iii)One of 1.6(b) exceptions applies—lawyer reasonably believes necessary that he must reveal info to:
·         (1) prevent reasonably certain death or substantial bodily harm
·         (2) prevent clientfrom committing a crime or fraud reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which the client has used or

ourt typically regulates activity
(a)    May adopt ABA model rules, forum state’s version of model rules, or variation of either
B)    Admission to Practice
1)      Three General Requirements:
(a)    Graduate an ABA-accredited law school
(b)   Pass bar exam and MPRE
(c)    Character and fitness review
2)      Character and Fitness Review
(a)    No False Statements: must not fail disclose a fact necessary or fail to respond to a lawful demand for information
(i)     MR 8.1: Bar Admission and Disciplinary Matters
·         Bar applicant shall not knowingly make a false statement of material fact
·         Shall not 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
·         MR 1.6 Duty of Confidentiality trumps this
(b)   “Good Moral Character”: must pass a review of character and fitness, honesty and integrity
(i)     Look at past criminal record, past conduct:
·         Convictions and acquittals, academic misconduct, acts involving dishonesty, financial responsibilities, misconduct in employment, mental or emotional instability, violation of court orders, alcohol dependency, mental or emotional instability, denial of admission into bar of another state
(ii)   MR 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) conduct that involves 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 gov’t agency or official to achieve results by means that violate Rules
·         (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law
(c)    In Re Hale, page 1037: cannot deny someone admission to the bar because of Communist views, but this case holds that you can deny someone because of severe racial hatred
3)      Being a Reference for Others