A. Why Study Professional Responsibility?
1. Ethical Decision Contributors:
· External Struggle – Possible Consequences
· Own reputation
· Who will be affected
· Internal Struggle – Morality/Conscience/Values
· Temporality – if don’t do the right thing now, cannot turn back time and the do it later
· Individual moral views/norms
· Sense of community’s standards/societal norms
· Self Gratification
2. The toughest ethical dilemmas will be those that pit strongly held values against each other
· Elements that make ethical decisions more/less difficult
· What we want to do is not what we ought to do (self-gratification v. morality)
3. Lawyer’s Ethical Decision-Making Matrix – Legal v. Moral Matrix – used by Prof. Brad Windell
· Which are the difficult quadrants of this matrix?
· N,Y; Y,N
· Choices that are hard are either moral but illegal, or legal but immoral
· Easy choices are either both legal and moral or illegal and immoral
B. Whose Interests are Reflected in the Rules Governing Lawyer Conduct?
1. Lawyers themselves
2. Clients or potential clients
3. Courts and judges
4. The public
C. Lawyer Rules and Ordinary Morality: A First Look
1. Spaulding v. Zimmerman (1962) – p.6 – classic PR case – legal/moral matrix problem
· Court: finds that b/c the court has an unique duty to protect the minor, the ∆ had a duty to disclose all evidence to the court at the time of the settlement approval.
· Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, court will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
· The holding rests on the fact that the lawyer had a duty to disclose to the court, not the adverse party.
· Matrix: legally right, morally wrong
· Duty of confidentiality is subject to client’s consent
· What can you do to get around the legally right but also to disclose info:
· Break the rules and take the consequences of disclosure against client’s interests
· “Noisy withdrawal” – sending signs to opposing counsel that something’s wrong. Even if you step down from representation, your privilege obligations still exist.
· When faced with this matrix, must determine if there are alternatives and whether it is comparative to breaching client’s obligation
2. “Informed consent” of the client – an exception for disclosures of confidential information protected under the ethics rules.
· MR 1.0(e): “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
II. SOURCES OF LAW FOR PROFESSIONAL RESPONSIBILITY
A. Professional Responsibility Rules
1. Model Rules of Professional Conduct (MRPC) adopted in 1983
· Response to Watergate in the 70s – impression that lawyers needed better ethics guidance
· Most jurisdictions have moved to a Model Rules-based set of professional responsibility rules
· Two-level format:
· Rules – Authoritative
· MRPC Preamble  – comments are “intended as guides to interpretation”; text of each rule is authoritative
· Comments – guide
· Ie: “Comment  to Model Rule 1.1”
2. Purpose of discipline: to protect the public, protect the integrity of the legal system, deter further unethical conduct, rehabilitate the lawyer when necessary, and educate other lawyers
B. The Tangled Web: Getting into Trouble in a Disciplinary Proceeding
1. MR 1.8 – Motley of rules – must cite to subsection
· MR 1.8(c) – accepting gifts
· Prohibits solicitation of substantial gifts à gift must solicited and substantial.
2. Ex parte communication
· MR 3.5(b) – ex parte communication with judge – one party is talking to decision maker (judge) without the presence of the opposing party
· Mostly prohibited unless authorized by law or court order
· Theory/public policy of prohibition: adversarial system – fear that one side’s communication may taint decision maker because the other side cannot counter
· Very limited in nature – MR 3.3 – must be more forthcoming with judge
3. Informed Consent – MR 1.0(e)
· Hierarchy in solemnity
· Informed consent
· Informed consent confirmed in writing – letter to client confirming consent
· Informed consent in a writing signed by the client
4. State of OK Bar Asso. v. Allford(2006) – p.17
· Facts: Allford does not respond to client re probate matter. Client retained ∆ in 1992 and probate still not complete in 2003. Client filed complaint to Bar in 2004. Bar issued subpoena for ∆’s depo. ∆ did not appear – ∆ asked Sheriff’s clerk to falsify the date of when she received the letter to be the date of her subpoena, so she can claim she got it a hour before and couldn’t show up.
· Court: ∆ was sanctioned a 6-month suspension – severe.
· Lesson of this case: what often could be just a minor disciplinary matter (failure to timely respond to client) may become a major matter because of the attitude of the lawyer
· If you were ∆’s lawyer, advise:
· Take the disciplinary action seriously
· Get the case resolved right away
· Don’t lie
· Show respect
C. Practice Area Rules
1. Tort Law
· Legal malpractice – negligence by a professional
2. Contract law
· Lawyer engaged in making a K with a client
· Comes up a lot when asking for more money when the work gets tough
3. Criminal Law
· Financial fraud
4. Agency Law/Fiduciary Law
· As a lawyer, you are acting as an agent and also sometimes as a fiduciary. May also
client is harmed.
· As lawyer: concerned about competence issue. Can face disciplinary liability and financial liability – tort – malpractice
4. Becoming Competent
· Comment  – “Novice Rule” – when a novice can take a case despite lack of competency:
· Engaging in the necessary study
· Can associate with a lawyer who has specialized in the particular field
· Comment  – Emergency
· In an emergency a lawyer may give advice or assistance in a matter in which the lawyer don’t have the skill ordinarily required where referral or association with another lawyer would be impracticable
· Even in an emergency, assistance should be limited to that which is reasonably necessary, because the client’s interests are at stake
· Comment  – “a lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation”
· Disadvantages to taking a case in which you are not initially competent:
· It’s not in the client’s best interest
· Could open yourself up to malpractice liability
· Could be disciplined for taking a case you’re not competent to handle
· Comment  to MR 1.3: “perhaps no professional shortcoming is more widely resented than procrastination
· Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Miller – (1987) p.28
· Court: Miller was not competent and violated IA’s DR 6-101(A), which precluded lawyer from handling matter that they were not competent in.
5. Disclosure of Incompetency to Clients
· Attorney must inform a client that he/she is not competent
· Need to disclose that you are “new” here
· Atty may not lie to a client and tell him that he is competent, when he is not
· But, may need to refer to another attorney in order to serve client
· Need to stay in contact with client
· Duties arise out of:
· MR 1.3 – diligence
· MR 1.4 – communication
6. Checks on Incompetence
· Ethical Rules of Competence – MR 1.1, 1.3, 1.4
· Continuing Legal Education
· Peer Review
· Reputation and the Market
· Malpractice Liability
· Tort claim – negligence by a professional.
2. The Elements of the Claim – Lopez v. Clifford Law Offices, P.C. (Ill. App. 2005) p.31 (wrongful death action where SOL lapse b/c of atty – 4 elements must be proven by ∏)