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Professional Responsibility
University of Iowa School of Law
Raymond, Margaret

PROFESSIONAL RESPONSIBILITY
RAYMOND FALL 2006

INTRODUCTION

ON ETHICS, CHOICES, AND RULES

· The central problem in professional ethics can be described as the tension between the client’s preferred position resulting from the professional connection and the position of equality that everyone else is accorded by general principles of morality and legality
· The ethics rules deals with essentially four problems: prohibited assistance, competence, confidentiality, and conflicts of interests

1. Adversary Ethics
· Spaulding v. Zimmerman (CB p. 3)
o Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, courts will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party
§ Discovery rules generally do not require lawyers to produce information absent a request from the opposite party.
o Link (notes p. 10): upheld an involuntary dismissal of an injured railroad worker’s federal tort claim for failure of his lawyer to attend a pretrial conference
o Poly Trucking (notes p. 10): held that Poly had no duty to help Concentra understand the consequences of its drafting error or to reveal its intention to take advantage of that error by suing Concentra’s agents
o It is unethical for a lawyer to make an affirmative misstatement to an opposing party (or anyone else), MR 4.1, and dishonesty concerning a material fact may also render the lawyer liable for fraud
o A pretty good rule for lawyers to practice respecting professional conduct is to dot he right thing

SOURCES OF THE LAW GOVERNING LAWYERS

2. Introduction to ethical codes and other sources of the law of lawyering
o The model rules were adopted in 1983
o Preamble: a lawyer’s responsibilities (M+R p. 3)
§ A lawyer is an officer of the legal system
§ A lawyer is an advisor, advocate, negotiator, and evaluator
§ A lawyer must be competent, prompt, and diligent
§ A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client. A lawyer must uphold legal process
§ Some rules are imperatives (“shall not”) while others are permissive (“may”). No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of permissive discretion.
§ Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.
§ The comments are intended as guides to interpretation, but the text of each Rule is authoritative

PROFESSIONAL DISCIPLINE
· The purpose of discipline is to protect the public, protect the integrity of the legal system, deter further unethical conduct, rehabilitate the lawyer when necessary, and educate other lawyers
· The nearly universal approach of disciplinary bodies is to investigate only instances of egregious and usually repeated instances of neglect and incompetence
· Spevack (notes, p. 1145): (1) a lawyer cannot be disciplined for failure to respond in a disciplinary proceeding when the failure consists of invoking a constitutional privilege, and (2) the Fifth Amendment may be invoked in a disciplinary proceeding to avoid giving incriminating testimony
· MR 8.4 limits discipline to those crimes “that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
· Discipline may be imposed for conduct that is also criminal even though the lawyer was acquitted in a criminal trial or the charges were dismissed or dropped
· Up to 90% of all complaints against lawyers are dismissed, and only a very small percentage of complaints result in significant sanctions

UNIT 1
DUTIES TO THE CLIENT
THE DUTY OF COMPETENCE AND DILIGENCE
MR 1.1 competence
MR 1.3 diligence
MR 1.4 communication

· MR 1.1 a lawyer shall provide competent representation to a client

· Malpractice involves four components:
o (1) duty—a duty of care arising from an attorney-client relationship
o (2) breach of duty—a failure by the lawyer to exercise the care that reasonably competent lawyers exercise under similar circumstances. The duty of care is usually expressed in a formula that includes knowledge, skill, prudence and diligence. The reference to the custom of other lawyers means that ordinarily the plaintiff must obtain the testimony of expert lawyers concerning the standard applicable in the particular situation
o (3) causation—evidence that the lawyer’s failure was the actual and proximate cause of the plaintiff’s injury must be shown
o (4) Harm—legally cognizable harm must have been caused by the lawyer’s act or omission—usually seeks a recovery for purely economic harm: e.g., a showing that the plaintiff would have achieved a different and more advantageous result in the transaction or litigation but for the lawyer’s conduct

DUTY
· Lucas v. Hamm (CB p. 856)
o We are of the view that the extension of a lawyer’s liability to beneficiaries injured by a negligently drawn will does not place an undue burden on the profession. The court held that it was reasonably foreseeable to Hamm, when he drafted the will, that absence of due care would result in harm to the intended will beneficiaries.
o Somebody other than a client might be able to prove the duty necessary to sue the lawyer
o The third party may sue a lawyer even though there is no privity

CAUSATION AND STANDARD OF CARE
· Smith v. Lewis (CB p. 859)
o There is nothing strategic or tactical about ignorance
o The crucial inquiry is whether his advice was so legally deficient when it was given that he may be found to have failed to use “such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.”

as a tax lawyer who had never tried a case
o Mickens (notes p. 890) held that Mickens was not denied effective assistance of counsel when defense counsel had represesnted the murder victim whom Mickens was alleged to have killed until the victim’s death (see conflicts, infra)
o The data suggests that, although Strickland said it was not adopting an outcome-determinative test, lower courts are applying Strickland as if it had.
· When prejudice is presumed
o Prejudice will be presumed in certain limited circumstances: when there has been an “actual or constructive denial of the assistance of counsel altogether, or when the government interferes with counsel’s assistance in such a way that “prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost
o Government interference with the right to counsel must be egregious before prejudice will be presumed (conduct which jeopardizes the integrity of the legal process)
· U.S. v. Gonzalez-Lopez (Supplement p. 1)
o the USSC must decide whether a trial court’s erroneous deprivation of a criminal defendant’s choice of counsel entitles him to a reversal of his conviction
o the trial court had denied Δ’s attorney’s request for admission pro hac vice primarily because in a separate case Δ’s attorney had violated a rule by communicating with a represented party
o Improper denial of counsel of choice is a denial of the Sixth Amendment right to counsel no matter how brilliantly the counsel performed
o The right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.
o Prejudice was presumed here
o This violation is not subject to harmless-error analysis
o Dissent wants a showing of prejudice on top of a denial of counsel

UNIT II
KEEPING CLIENT SECRETS: ATTORNEY-CLIENT PRIVILEGE AND THE DUTY OF CONFIDENTIALITY

ATTORNEY-CLIENT PRIVILEGE
The law governing client confidences has two sources: agency law and the law of evidence. Lawyers, like all agents, have a duty to treat information from and about their principals as confidential to the extent that the principal so intends and a duty not to use information about the principal against the principal or for the personal