Professional Responsibility Hughes Fall 2017
Chapter 1: Lawyer Rules and Ordinary Morality: A First Look
Spaulding v. Zimmerman
Facts: Zimmerman crashes into another. Sues. Take an examination–has an aneurism. Results are given to defense counsel, but P.
Rule: Minor status probably allows the court to come in and undo the settlement because the settlement made did not take into consideration the disability because only defense counsel knew of it. No rule forces the defense counsel to tell this info to the opposing party or the court.
Mistakes by counsel: didn’t move for discovery of the examination results.
Important questions to ask:
who is the client? Conflicts? What happened (if multiple people are around, they could become adverse witnesses)? What are the client’s goals? Who is paying? Will it be enough?
3 things client has the final say on:
To go to trial or settle/plea, criminal D testifying on his own behalf, if you are going to waive your right to a jury, i.e. have a bench trial
Lawyer gets to decide: procedure
Ways to not mess up on a case:
Always look at the SoL for a new client’s issue first thing. Make sure the claim isn’t frivolous. Put money in a client trust account (don’t borrow from it, accurate accounting, and don’t comingle with your own money, send a letter when it’s time to bill them for you work and make sure you take the money out (this would be comingling)), look up your own state’s rule of professional conduct.
Chapter 2: Sources of Professional Responsibility
These are usually court rules, adopted the highest court of the state. Compliance with these rules is a requirement of continued admission to practice.
Sarb-Ox, Circular 230 (IRS), Patent and Trademark Office Regulations, Bankruptcy Code, Rule 11 and Other Sanctions Provisions, Precatory Standards (specialized practices of law)
Chapter 3: Consequences of Violating the Disciplinary Rules
Discipline as an attorney:
1) reporting of the complaint, 2) investigation, 3) determination of probable cause, and 4) a formal adjudication
In many cases nothing happens to lawyers who violate the rules.
Factors: reporting issues (lawyers don’t do it often (despite the mandatory rule) and clients usually aren’t aware of the option to bring a complaint.), lengthy processing time, less than 4% of complaints resulted in a probable cause finding.
Sanctions (severest to least): disbarment (sometimes can reapply), suspension (removal from practice for a time), reprimand (either public or private)
Factors to consider: nature of the duty violated, the lawyer’s mental state, the injury caused by the misconduct, aggravating/mitigating factors.
Rare sanctions: requiring insurance as a condition to continue practicing, require the lawyer to pay a malpractice judgement as a condition to continue practicing.
State of Oklahoma Oklahoma Bar Ass’n v. Allford
Bad Facts: Lawyer didn’t complete a probate in time, didn’t return the file when the client fired him, didn’t respond to allegations when client complained, and didn’t appear to his deposition, asked two of the sheriff’s employees to falsify the date of service, testified differently from her stipulations, didn’t accept any real responsibility for her actions, said whatever was necessary to get through the process, habit of ignoring a growing problem.
Good Facts: never received any formal discipline, didn’t cause legal or financial loss to the client
Result: suspension for 6 months
Ex parte communications/motions
When you approach the judge in his/her chambers, you have to try to have opposing counsel with you, UNLESS an exception applies like certain extenuating circumstances/emergencies
In the case where you make an ex parte communication:
Either argue for the other side, OR bring in someone else from their firm.
What can you do if you get hit with a suspension?
Yes: Do a lot of the things a summer associate could do like research for a supervising attorney, interviewing client’s, (must not can) call all your clients telling them you’ve been suspended and try to point them to another attorney
No: appearing in court, file an appearance, signing legal document, giving legal advice
When suspended must write a letter to all clients saying you were suspended
When you receive a disciplinary letter, always open it and hire an attorney to represent you
You can get your licensed pulled for stuff you do in your personal life. Don’t have to have a criminal conviction either.
Case examples of different sanctions: pg 29
1) See 8.4. Lying to a judge about the location of a witness = 3 year suspension
3) Falsifying documents, lying to opposing counsel = 6 month suspension
4) Got 2 year suspension for insurance fraud.
Sanctions are usually worse when clients lose money.
Exercises: friending a judge on facebook—outcome? 462 ABA formal opinion
Chapter 4: Duty of Competence
A. Rules Regarding Competence
Other Enforcement Mechanisms: the market
Model Rule 1.1 Competence
Facts: attorney took on a case where he admitted later to the court that he had no idea how to do this kind of work. Received 3 letter from committee but ignored them.
Rules: 1.1 (competence), 1.2 (conduct prejudicial to the administration of justice), and 1.2 (engaging in conduct adversely reflecting fitness to practice law)
Result: indefinite suspension with no possibility to be reinstated for 3 months from the date of this opinion
Docking (not assigned)
A new attorney can take a felony case
n, nor should it create any presumption in such a case that a legal duty has been breached. But they can provide guidance to courts.
How to prove the case within a case for a malpractice action: prove whether they would have one and whether the atty breached a duty
As the P, try to get certain testimony out as irrelevant, like the old atty
D would try to defend by bringing in someone to attack his own case. Very mind boggling.
Standard of care: the exercise of care, skill and diligence commonly possessed and exercised by lawyers in the jurisdiction
will depend on the issue you’re working on. If no one does capital murder cases in your state, you can’t really say you fell below a standard of care.
Also, now do we define the coverage of “jurisdiction”
Usually will require an expert to prove to the jury unless especially egregious
Argument for: P would have won this in the original case if his lawyer had not committed malpractice
Argument against: punitive damages are intended to punish and deter the original wrongful actor. No purpose in imposing them on the malpracticing attorney. Nor would they be required to make the P whole. Weight of authority: not recoverable.
First issue: contingency fee arrangements authority split
Fee client would have had to pay the attorney if the case was won will reduce the award in the subsequent malpractice case. Accurately reflects the amount that the client would have received.
However, client will ordinarily incur a second legal fee to the malpractice atty.
Majority: lawyer is not entitled to deduct the contingent fee from P’s recovery.
Second issue: whether P may claim as damages the atty fees incurred in bringing the malpractice action.
Prevailing rule, P cannot recover atty fees. Some contrary decisions say yes on the theory that better to have the P double recover since having to go through the stress of two cases.
Only required in Oregon. Some states require disclosures concern insurance status.
Very difficult to prove that but for the alleged malpractice, it is more likely than not that the P would have obtained a more favorable result.