PROFESSIONAL RESPONSIBILITY ELIAS SPRING 2015
Iowa lawyers: as Iowa-trained lawyers, there is a certain notion people will have of us.
Pride in being an Iowa lawyer
High commitment to civility and professionalism
Don’t interrupt; act like you know opposing counsel personally; prioritize by not picking small/unimportant fights during trial; don’t be condescending; agree when appropriate; be transparent
There can be repercussions if we deviate from that level of civility expected of the Iowa lawyer
Security National Bank of Sioux City v. Abbott Labs: after excellent legal work in defending client against products liability claim, counsel nevertheless receives sanction from the court for excessive form objections without any specific foundation in law or Rules, witness coaching through objections (suggesting witnesses should answer a certain way), and excessive interruptions. Sanction is to make a video explaining why those techniques are bad and sharing it throughout the firm.
Judge Bennett makes it clear: you will be an Iowa lawyer in his court. Be civil, advocate without being uncooperative.
Outline of Course/Total System Failure
This outline lists the outline of the course overall.
Often, when PR problems arise, they don’t come one at a time. The same set of facts can give rise to multiple PR problems
Iowa Supreme Court Disciplinary Board v. Mendez: CA immigration lawyer botches it in just about every way you can imagine working with immigration clients in Iowa/Nebraska after acquiring an immigration practice in the area. Court doesn’t care that he hasn’t read the rules (many were explained to him; he should have read them anyway). Gets 60-day suspension from practicing law in Iowa. But his work representing clients blew it on just about every topic in this course.
Key Tensions in Professional Responsibility
Professional Ethics and Morals are not always the same thing.
What feels ethical or at least moral, is not necessarily the same as what the PR rules may require of us.
Spaulding v. Zimmerman: after terrible rural Minnesota car crash, parties settle. Defense, however, knew that plaintiff had an aortic aneurysm. Plaintiff’s doctors didn’t know. Defense conceals it, and years later π finds out about the condition and has surgery. Brings suit again to overturn settlement.
Settlement can be overturned because Spaulding was a minor at time of original suit. Court concludes settlement and concealment of the aneurysm (which could have killed Spaulding at any time) defrauded Spaulding.
BUT, the professional rules of MN at the time did not allow the defense counsel to tell π, even if they wanted to!
Ask client for permission to disclose the info
Just break PR and tell π
Don’t do anything other than follow PR rules
Call state ethics board and ask them; call malpractice insurance
When ethics, morals, and PR are in tension, don’t check morals at the door. Think:
How can I reconcile this tension as best as possible?
If not reconcilable, which should you follow?
Remember, the rules can change! If you can imagine a better standard, propose a change. Help make it work.
SOURCES OF PROFESSIONAL RESPONSIBILITY AND CONSEQUENCES
Overview and Sources
PR is “law of the horse” class. We look at how these rules apply to lawyers, so we touch on agency law, evidence, contracts, torts, admin and regulatory law, and statutory interpretation.
1908: Canons (aspirational rules)
1969: Model Code
Canon (Normative / Topic area)
Ethical Consideration (Aspirational)
Disciplinary rule (required)
1983: Model Rules
Chapter (normative / topic area)
Rule (“shall”) (required)
Rule (“may”) (permissive/discretionary)
Comment (“should”) (guidance, NOT new obligations)
Which rules apply to me?
Jurisdiction where you are barred (regulates your life)
Key source: state rules of PR (typically ABA model rules as adopted and amended. BUT LEAN ON YOUR OWN STATE’S RULES!
Jurisdictions/fora where you practice
Federal Rules Civil/Crim. Pro.
State Rules of Civil/Crim. Pro.
Agency Rules (Imm. Ct. Practice Manual)
Catch-all rules (Fed. R. Civ. P. Rule 11)
Individual court rules (district and judge)
Judge’s inherent authority
Substantive areas of practice (trial lawyers, prosecutors, immigration, etc)
Aspirational rules and/or non-binding evidence of professional norms
Key source: Precatory standards (Am. Coll. Of Trial Lawyers’ Codes of Pretrial Conduct and Trial Conduct, etc)
Specialized areas of practice with broad notions of“practice”
SarbOx and “practicing before the SEC
Tax Circular 230 and “practicing before the IRS
Patent and Trademark office and matters “pending before the PTO”
Bankruptcy and any signed “petition, pleading, or written motion
Search for them?
State level (supreme court or state PR boards: binding)
ABA ethics opinion (applies to model rules, but not binding)
RST (3d) of Law Governing Lawyers
State PR bodies, Malpractice insurance carriers, other things you can find online
Report à investigation à Probable cause determination à Settlement or adjudication
Complaint with IADB à Board determines whether to dismiss or investigate à if investigate, board can dismiss if it finds no issue. Or it can issue private admonition or public reprimand. Or, it can send it to the Grievance Commission. à Panel from commission holds hearings, makes suggestion and passes to SCOTSI à Lawyer can request appeal or not à If no appeal, SCOTSI reviews de novo, issues its sanctions. If appeal, SCOTSI can grant or not. If not, it’s the same as if no appeal. If yes, lawyer litigates it again before SCOTSI
Takes a long time (2.5 years!), only a few of those filed actually result in disbarment.
Oklahoma ex rel. Okla. Bar Ass’n v. Allford
Allford sucks at representing poor Mackey and probating his parents’ will (takes her like 13 years). She won’t let Mackey terminate the relationship, has sheriff’s
, a breach, causation (Loran had no duty to correct Prindable’s mistake- would have created an attorney-client relationship, or would have been giving legal advice without the relationship (If Loran had taken on attorney-client relationship, Clifford would not be liable)), and damages
Malpractice II: Who?
To whom do lawyers owe the duty of competence?
Named will/trust beneficiaries
Majority rule: heirs, beneficiaries, etc. have standing, but only if the actions frustrate the testator’s intent – testator’s intent has to be clear
But see Barcelo: attorney was only liable to client, not third party beneficiaries. Grandchildren didn’t get what they wanted from the trust, but the TX rule prevented 3rd parties from influencing attorney decisions
Assignees: selling malpractice claim right (Leatherberry: L’s lawyer failed to enter settlement properly; L agrees with Green to sue lawyer for malpractice and assign all benefits to Green so that Green won’t execute massive judgment against L.)
Payors (Fox: just because family members who pay for claim may benefit doesn’t make duty)
Opposing party in frivolous suit (Clark)
Co-Counsel for lost fees (Mazon: no duty to each other, both attorneys owe an undivided loyalty to the client)
Your own firm (Employment law and other PR rules 5.1 and 5.2 handle this)
Unnamed will/trust beneficiaries
Malpractice III: Criminal Context
Successful Challenge to Conviction (some kind of Post conviction relief)
: couldn’t show this procedural requirement despite speedy trial denial issues
Proof of innocence by preponderance of the evidence (not majority requirement, but common
If not innocent, damages caused by client’s own conduct
Ang v. Martin
Whether plaintiffs in a malpractice action against their former criminal defense attorneys were properly required to prove by a preponderance of the evidence that they were actually innocent of the underlying criminal charges
Do the Angs have to prove they are innocent or would the acquittal be enough? Yes, not just show evidence of government’s inability to prove guilt
Keep crims from benefitting from bad acts
Maintain respect for crim justice system procedural requirements
Avoid chilling defense bar (best argument)
Prevent suits from crims who may be guilty but could have gotten better deal
Prevent nuisance litigation