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

A. Rules that Govern Attys in PR:
General Rule: Other law trumps rules of PR; have to look at State Laws, local laws, Case law, ethics opinions, etc
(1) Agency Law:
§ When atty is acting on behalf of client-atty is acting as agent of the Principal (client)
§ Atty is fiduciary to client
§ Atty should put principal’s interests first
o   However atty, has more autonomy than the typical agent; so atty can act independently of client’s wishes (but this brings increased responsibility)
(2) Tort Law:
(a)    Tort of Negligence—Atty Malpractice
(b)   Acting in Concert with Client
o   Atty can be liable to 3rd party for actions undertaken by client
o   Can be seen as acting in Concert; if atty gives substantial aid to tortfeasor then can also be liable
(c)    Atty retained by Client for benefit to 3rd Party
o   Ex: atty hired to write will for benefit of 3rd party
(3) Criminal Law:
§ Aiding and Abetting
o   If client, based on advice from atty-commits a crime
o   Conspiring with client to violate law
§ Obstruction of justice; concealing or destroying evidence; suborning perjury
(4) Constitutional Law:
§ 6th Amend guarantee of effective counsel
§ 5th, 6th amend obligations of prosecutor
§ 1st amend limit on atty advertisements; is protected speech except when false or misleading
o   ethics code can still regulate this also
(6) Other Law:
§ family law; security lawyers and SEC laws, etc
ABA History:
§ 1908: ABA Cannons of Professional Ethics
§ 1969: ABA Model Code
o   only few states are still modeled after this
§ 1983: More than 45 States replaced this         
§ 2002: ethics 2000 revisions to ABA model rules;
§ 2003: further revisions; after Enron Scandals revised 2002 rules—Official rules are 2002 version with 2003 amendments
§ 1983: is different than Model Rules of 1969
o   Are Black letter rules followed by comments
o   Comments are intended to be guides for interpretation of rules
o   Majority of States have their Codes based on 1983 version-including Illinois; No States are identical
B. Role of a Lawyer
Spaulding v. Zimmerman
§ Facts: son was in car accident; Πs Doc did not find aneurysm; Δs doctor did but did not tell Πs prior to the settlement agreement with Π; Δ represents insurance company also; Δs atty also did not tell client (Δ) about Π’s condition-set aside settlement agreement b/c only Δs knew about aneurysm
o   Conclusion under pre-2002 version of 1.6—Δs atty could not have told Πs atty unless Δ consented b/c was covered by atty-client confidentiality; Under new rules—should have told Π’s atty b/c new exception
§ Under old rules (pre-2002)-1.6(b)(1) only applied to criminal acts; so could not disclose under that unless had consent or implied authorization; (b)(2) applies for atty to establish a claim or defense; it would not have applied; could not have disclosed unless client consented; justification is that Π has own attys and doctors to find out about this
o   Conflict of interests arise when atty represents insurance companies—MR 1.8governs conflicts of interest
§ See MR 54(c); 1.7
·         Attys are permitted from continuing such rep unless atty can conclude that there will be no interference with atty’s rep with the client
o   Conclusion under new rules: atty has duty to inform client about this so that client can contribute to effective representation; If client objects—atty can still tell under 1.6(b)(1) exception as long as harm to Π is “reasonably certain of death or substantial bodily harm” (this exception did not exist under old rules and atty could not have told Π without Δs consent under old rules)
§ Comment 6: recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent certain death or substantial bodily harm
Atty probably should have told Δ about Πs condition:
         MR 1.4: Atty has duty to communication with the client
o   (b) Atty shall keep the client reasonably informed as necessary for the client effectively to participate in representation
o   In some circumstances, atty may be justified in delaying info-but atty may not withhold info to serve atty’s own interest or serve the interest of another person (i.e. insurance company) (Comment 7)
§ Thus-atty may withhold psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client
§ Client telephone calls should be promptly returned or acknowledged
     MR 1.2: Atty shall abide by client’s decision to settle
o   Atty should usually defer to client-when there is a 3rd person that may be affected (i.e. Π)
     If atty told Δ—what advice should Δ give?
o   MR 2.1: purely technical advice may be inadequate; may be proper for the atty to refer to other law-economic, financial, personal
o   Atty may give moral advice-that would be proper; so if see C is doing something wrong—should try to give moral advice first
ð Study done that atty’s are much more likely to think that clients want them to be 
tricky; to get them as much money as possible
Confidentiality of Information
1.6 prohibit atty from discussing not just info protected by privilege but all info relating to client (i.e. cannot gossip about client)
MR 1.6 (b): Exceptions when Atty can disclose without Client’s consent or implied authorization: è è è Is permissive to disclose—but never mandatory
§ (a)(1)If information is impliedly authorized or client consents, outside an exception—then can inform other side of aneurysm
§ (b)(1):To prevent reasonable certain death or substantial bodily harm;
o   new exception in current version; the aneurysm could be told in order to prevent harm
§ existed in old rule but only if prevent client from committing criminal act that would be likely to resulting imminent death or substantial bodily harm; new rule got rid of “criminal” aspect
§ easier to satisfy under new version
o   Comment 6: Need to know what is “reasonably certain” death or harmð Present or substantial threat
o   In Zimmerman, atty could disclose under this exception to Πs atty
§ (b)(2):To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
o   Is preventative; concerns crimes that have not yet occurred
o   NOTE: need both injury & using atty’s services in furtherance of
o   Need definition of “Fraud” under Rules and State
§ Fraud = conduct under applicable jurisdiction and has purpose to deceive (MR 1.0(d))
o   Enacted after Enron scandal
o   1.16: if client is using atty’s advice for assistance in criminal or fraudulent way—may have obligation to withdraw or right to withdraw (Comment 7)
§ (b)(3): To prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the atty’s services;
o   After the Fact; after crime is committed—then atty can disclose to mitigate or rectify harm already occurred
o   Enacted after Enron scandal
o   Does not apply when a person who has committed a crime or fraud thereafter employs a atty for rep concerning that offense (Comment 8)
§ (b)(4):To secures legal advice about the atty’s compliance with these Rules
o   new exception in current version of rules
o   Comment 9: In most situations, disclosing in this situation is impliedly authorized
§ Atty should pose it as hypothetical to outside counsel
§ Can call up prof to ask about compliance with ethical rules
§ Cannot use (b)(4) to call up professor to get advice about products liability
·         But can ask client for implied authorization to ask expert for advice on a subject; most clients would do this
§ (b)(5) Self-defense Exception: To establish a claim or defense on behalf of the atty in a controversy; or to respond to allegations in any proceeding concerning the atty’s representation of the client;
o   deals with situations when clie

§ Examiners inquire into your past conduct as indicator of future conduct
ABA recommended standards for Bar Examiners:
§ Unlawful conduct; academic misconduct; making false statements including omissions; misconduct in employment; acts involving dishonesty, fraud, deceit or misrepresentation; abuse of legal process; neglect of financial responsibilities; violation of an order or a court; evidence of mental or emotional instability; evidence of drug or alcohol dependency; denial of admission to the bar in another jurisdiction on character grounds; disciplinary action in any jurisdiction
In re Matter of Hale:
§ Denial of admission to ILL Bar; rationale was that Hale failed to agree that would abide by Illinois Ethical Rules; that could not comply with 8.4(a)(5)
§ ILL 8.4(a)(5): atty shall not engage in conduct that is prejudicial to the administration of justice
§ Burden is on Hale to prove that would abide by Ethics Rules
§ Committee focused on Hale’s views
·         Focused on letter sent to private citizen-can we discipline for this?
NOTE-Bar Examiners:
§ No affirmative obligation to volunteer info about what you know about an applicant; you may choose to—but no obligation to
§ If Bar asks you about applicantð you have obligation answer truthfully to Bar
§ If you have no basis for recommending someone (you don’t know them well), then you should not recommend that person
§ If applicant is your client, you cannot tell Bar what you know unless exceptions to 1.6 apply;
·         MR 8.1(b):Duty of Confidentiality to Client trumps duty to tell Bar Examiners
§ Most common reason for failing admission is lack of candor on Bar Examination
·         Cover-up is worse than telling the Bar outright in the Committee’s viewpoint
·         MR 8.1, Comment 1:If a person makes a material false statement in connection with an application for admission, it may be basis for subsequent disciplinary action if person is admitted, and in any event may be relevant in a subsequent admission application
o   So even if admitted-your actions can still make you liable later
B. Professional Discipline
ð Sanction can only be issued once a specific model rule has been violated
MR 8.1 Bar Admission and Disciplinary matters:
Atty for admission to bar or atty in connection with bar admission application or in connection with disciplinary matter, 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; or
o   knowingly fail to respond to a lawful demand for info from an admissions or dis. Authority; except as otherwise protected by 1.6
** applies to atty’s own admission or discipline as well as others
Start with MR 8.4: Defines what Professional Misconduct is:
(a)    violate or attempt to violate the Rules of PR, knowingly assist or induce another to do so, or do so through the acts of another;
o   (a) incorporates all rules + some additional prohibitions
(b)   Commit a criminal act that reflects adversely on the atty’s honesty, trustworthiness or fitness as a atty in other respects;
o   Comment 2: types of crimes include offenses involving fraud; tax fraud, breach of trust, interfering with administration of justice