The law of governing lawyers, essential to understanding our client’s situations.
RULE: Other laws trump the ethics rule.
RULES AND LAWS THAT GOVERN LAWYERS’ CONDUCT
Sources of the law of professional responsibility:
A. Law of General Application
1. Agency Lawà Foundation upon which law of PR is based
The client is the principle and the lawyer is the agent.
2. Tort Lawà A lawyer can be held liable in tort in many ways.
-Malpractice (improper control over the client’s property-conversion), or is negligent in representation (professional negligence or malpractice).
-The lawyer can be also liable to a third party for the lawyer’s conduct (persons acting in concert).
Restatement of Torts: a person acting in concert with a third person can be held liable if the lawyer gives assistance to the client (tort feasor).
2 The lawyer also can be held liable to a third party for conduct the party took.
3. Criminal Lawà A lawyer can be convicted for actions taken on behalf of a client (conspiring or being accomplice) even if the client committed the crime.
· Aiding and abetting client’s criminal acts
· Conspiring with client to violate law
· Fraud, including federal mail fraud
· Commercial theft
· Laws designed to uphold the integrity of the legal system
-Obstruction of Justice
-Concealing or destroying evidence
4. Constitutional Lawà
1 6th Amend guarantee of effective counsel
2 5th, 6th Amend obligations on prosecutors
3 1st Amend limits on lawyer advertising
4 1st Amend restrictions on lawyer speech (right of lawyers to criticize judges, etc)
5. Other law relevant to the lawyer’s particular area of practice
B. Laws that are specifically designed to regulate the conduct of lawyers
1. Rules of Professional Responsibility
1 Model Rules of Professional Conduct
2 Model Code of Professional Responsibility
3 Model Code of Judicial Conduct
1 Canonsà Broad statements
2 Disciplinary Rulesà Under each canon, they are mandatory, minimum standard for lawyers.
3 Ethical Considerationsà Aspirations rather than mandatory, sometimes the ECs are applied as if they were mandatory.
1983 ABA Model Rules of Professional Conduct
2002 “Ethics 2000” Model Rules (EXAM)
-Decided to keep the basic structure of 1983 model code but amended and revised. ABA adopted most of the recommendations. Most states today are not based on the new rules (too recent).
2003 Amendments to MR 1.6 and 1.13 (EXAM)
2. Rules of procedure
3. Local court rules
4. Law of contempt of court
5. Administrative agencies rules of practice
6. Rules of evidence
7. Ethics Opinions
1 Formal ethics opinion
2 Informal ethics opinion
8. Restatement of Law Governing Lawyers àRecent attempt by ALI to summarize all of the law governing lawyers
Spaulding v Zimmerman (1962)
Holding: Settlement vacated ONLY because P was a minor.
Conflict of interest lawyers find themselves in: When lawyers are being paid by an insurer as the client.
MR 5.4 (c) Lawyers should not be influenced by the person who pays them, or recommends them to direct or
regulate the lawyer’s professional judgment in rendering such legal services.
Comment 11 to Model Rule 1.8
Rule 1.7–conflict exists if representation of one or more client will be severely limited by a third party (insurance co) or lawyers personal interest (interest in keeping insurance co’s repeat business. Comment 13
MR 1.4 Communication
MR 1.2(a) The lawyers should have told Zimmerman about the P’s condition so that the D could have
Do we have any responsibility to tell our client to do the right thing, and what the right thing is?
MR 2.1 Lawyer as advisorà in representing a client, a lawyer shall give professional judgment and
render candid advice, also about moral, economic, social, and political factors.
There needs to be open communication between the lawyer and the client, this would only happen if
the client has confidence that the lawyer won’t disclose them.
New rule MR 1.6 lawyers could disclose to opposing side
(b)(1) has the “criminal act” crossed out so lawyer can disclose if just imminent
death or bodily injury is enough for the lawyer to be able to talk; (b)(4) can disclose with other law or a court
order (which would trump these MR of professional responsibility).
REGULATION OF THE LEGAL PROFESSION
Admission to the Practice of Law
Lawyers (self-regulating profession). In most states, the Sup Ct has the
responsibility of overseeing all the lawyers in that state:
1 Adopt the Ethical Code for the Profession
2 Regulates Admission to the Bar and Licensing of Lawyers
3 Enforce Ethical Codes
Federal Courtsà Regulate separately, so state admission doesn’t mean federal admission.
What rule does the bar play in the regulating of the profession? The bar doesn’t have any formal role in regulating the legal profession unless the state supreme court delegates to the bar association the power to regulate.
s, and fitness to practice (fraud, breach of trust, pattern of offenses, willfully avoiding of filing taxes, even not paying parking tickets).
MR 8.4(c) applies because he admitted making knowingly giving evasive and misleading information
MR 8.4(d) Conduct prejudicial to the administration of justice (lying, delaying court proceedings, set poor example for other litigators)
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) 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.
Why impose a sanction? Primary purpose is to protect the public (1.1), but how if he wasn’t practicing?
1 Deter other attorneys
2 Purpose is not to punish lawyers
3 To protect future clients as well.
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?
Duties owed from a lawyer to his clients:
1 Duty of loyalty
-preserve the property of the client
-maintain client confidences
-avoid conflicts of interest
2 Duty of diligence
3 Duty of competence