PROFESSIONAL RESPONSIBILITY
HISTORY OF RULES:
Canon of Professional Ethics: 1908—First Professional Code
ABA Model Code: 1969—Completed revised set of ethical rules
ABA Model Rules of Professional Conduct: 1983—Prompted by abuses of Watergate era. States more reluctant to adopt. Majority of States have adopted these rules or based their rules on such.
These Rules will be used for the exam
Structure: Rules, Comments
2002 Version- “Ethics 2000”- ABA Model Rules of Professional Conduct: Most current version of rules; Revision of 1983 rules. Not adopted by many States.
2003 Amendments: Amendments to Model Rules 1.6 and 1.13 (prompted by Enron), but most states still base their ethics rules on 1983 version
State Ethical Codes: Are based on ABA model rules, but all differ from each other.
Professional Responsibility Defined
Definition: Law governing lawyers’ conduct.
Intersection with other law: Often assumed that it’s ruled solely by ethics codes, but other law (criminal, tort, procedural law) must be conformed to as well.
Cannon 7: Lawyer should represent client zealously, w/in bounds of law—this refers to ethics rules & other law.
Case Law Interpretation of Rules: Provide only truly authoritative interpretation of ethics rules. Must look at case law interpreting all categories below.
Sources of Professional Responsibility
àLaw of General Application:
(1) Agency Law: Foundation upon which all of law of PR is based
General Rules: Found in Restatement 2nd of Agency
Rule: Lawyer, when acting on behalf of client, is an agent (lawyer) of the principal (client). Lawyer is deemed by the law of agency to be a fiduciary of client.
Fiduciary: Person having the duty to act primarily for another’s benefit in matters connected to the undertaking à Meaning: Must put client’s needs first.
Special Agency Situation: Lawyer has more autonomy than an ordinary agent, in that atty can exercise judgment independent of the client’s wishes. But this greater autonomy increases lawyer’s potential for liability for acts she undertakes on client’s behalf. Can also make lawyer liable for carrying out questionable directives by the principal.
Specially-Defined Fiduciary Capacities: Where lawyer has particular obligations and is governed by particular law dictating the area. Happen in addition to regular fiduciary agent. Ex’s: Guardian ad litum, trustee, etc.
(2) Tort Law: Attorney can be held liable in tort in different ways
Liability to Client: During representation, etc—malpractice, etc.
Liability to Third Parties: To non-clie
e of Judicial Conduct
(2) Rules of Procedure: Usually based on rules in that jurisdiction—more than just a violation of a procedural rule, but also a violation of ethical rules to violate procedural rules. It’s a potential disciplinary offense.
Rules of Civil Procedure
Rules of Criminal Procedure
(3) Local Court Rules: Each local court publishes their own rules for within that particular court. Sometimes each judge does so. Violation of local court rules is violation of ethical rules.
(4) Law of Contempt of Court: Disobeying rules/orders of court. Can be civil or criminal.
(5) Rules of Evidence: Very important source of law regarding lawyer’s job
Attorney-Client Privilege: Evidentiary privilege that comes from rules of evidence and protects communication of clients from coerced disclosure.
Work Product Doctrine: Protection from disclosure when work product has been prepared by a lawyer in anticipation of litigation.
(6) Administrative Agency Rules
àEthics Opinions: Issued by ABA, state and local bar associations—often issue formal and informal opinions that interpret relevant ethics codes.
