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Professional Responsibility
University of Iowa School of Law
Raymond, Margaret

Introduction
 
·                     Interests Reflected in the Rules
o                          General Principles
·                                 Lawyers, clients, potential clients, courts, and judges all have interests in the regulation of lawyers
o                          Broad Regulation
·                                 Stakeholders may view the area appropriate for regulation as very broad
o                          Different Views
·                                 Different stakeholders have different views on what regulation should cover
·                                 May seek to use leverage to see their interests protected
 
·                     Lawyer Rules and Ordinary Morality: First Look
o                          General Principles
·                                 If opposing party is a minor, or if court must approve something, there may be special disclosure requirements
o                          Spaulding v. Zimmerman(5)
·                                 D lawyers found out that P had an injury that P’s lawyers and doctors did not notice. They did not disclose to the court or to P the significant injury and offered a settlement based on the information P had. P later discovered the injury and was required to have emergency surgery.
§                                       P alleges that D should have revealed the injury to him before the settlement; thus, the court has the discretion to put aside the settlement because he was a minor when it was made
§                                       D alleges that they should not be required to turn over adverse information
·                                 Court holds that D knew, or should have known, that P would not accept the settlement had he known of the significant injury; thus, the court has the discretion to put aside the settlement P made when he was a minor
§                                       Court may vacate a settlement when one party had additional knowledge that neither the court, nor the other party, had access to
§                                       Court should have been informed before it was asked to approve the settlement
 
 
Consequences of Violating the Disciplinary Rules
Saturday, December 12, 2009
1:05 PM
Sanctions and Procedures
o                          General Principles
·                                 Many different sanctions and procedures for violations
·                                 Much depends on the fact that the system is complaint-based
§                                       Someone has to file it
·                                 Has to be staff to investigate and prosecute the complaint
o                          List of Sanctions
·                                 Disbarment: most severe sanction
§                                       Not permanent in most jurisdictions
·                                 Suspension: removal of practice for a period of time
§                                       Large sanction, must withdraw from cases and not represent clients during that time
§                                       Often must take an MPRE course as well
·                                 Reprimand: Private and public
o                          Malpractice Insurance
·                                 Some jurisidictions might require malpractice insurance as a condition of practice
·                                 Others might require or impose it as a condition of reinstatement (In re Sullivan(21))
·                                 Court can also order an attorney to pay for his mistake out of pocket in a disciplinary proceeding
 
2.                   Getting into Trouble in a Disciplinary Proceeding
o                          General Principles
o                          State of Oklahoma Bar Ass’n v. Allford(21)
·                                 Client paid D money, in 1992, to probate his parent’s estates. It was not completed by 2001, when client terminated D’s services because she did not keep appointments or return phone calls. D persuaded client to keep her on and still failed to complete the probate in 2004, when D filed a complaint
§                                       In addition, D asked two deputies to falsify the date of service of the complaint against her so she could get more time
§                                       At the disciplinary hearing, D lied about asking to falsify the date of service
·                                 Court held that the Bar’s recommendation of a private reprimand was inadequate considering the conduct in this case because D failed to acknowledge the Bar’s authority to oversee her practice and she never accepted responsibility for her actions
§                                       Had an attitude of annoyance over the whole proceeding
§                                       Attempted to avoid it by completing the probate
§                                       No honesty or integrity
 
Duty of Competence
Saturday, December 12, 2009
1:29 PM
·               Ethical Rules Regarding Competence
o                    General Principles
·                           Competence
§                                 Relevant factors include complexity and specialized nature of the matter, lawyer’s experience, lawyer’s training and experience in the field in question, preparation or study lawyer can give to the matter
§                                 Whether lawyer can refer the matter
§                                 Need not have special training or experience
§                                 Competent representation can be accomplished through association
§                                 In an emergency, lawyer can provide assistance reasonably necessary in light of the circumstances
§                                 Maintaining CLE is part of competence
·                           Diligence
§                                 Lawyer should take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor
§                                 Not bound to press for every advantage which might be realized
§                                 Lawyers work load must be controlled so that each matter can be handled competently
§                                 No procrastination
§                                 Must carry through to conclusion any matter and lawyer should give notice of withdrawal if necessary
§                                 Doubt on existence of relationship should be clarified in writing so client’s don’t make mistakes
§                                 Lawyer may be obligated to prosecute the appeal for a client
·                           Communication
§                                 Are allowed to withhold or delay transmission of information when the client would react imprudently to an immediate communication
o                    MR 1.1: Competence
·                           A lawyer shall provide competent representation to a client. Competence representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation
o                    MR 1.3: Diligence
·                           A lawyer shall act with reasonable diligence and promptness in representing a client
o                    MR 1.4: Communication
·                           A lawyer shall promptly inform a client of any decision which requires informed consent
·                           Reasonably consult with client about the means
·                           Keep client informed about status of matter
·                           Promptly comply with requests for information
·                           Explain a matter to the client when necessary to make informed decisions regarding representation
o                    In re Docking(28)
·                           Three Korean criminal defendants were charged with a crime. D represented all three. D met with clients several times, sometimes without an interpreter. TC found that D did not have the experience or competence to represent clients in felonies. He failed to property investigate. Erroneously advised clients on the law, and failed to request that clients not be deported.
§                                 Defendants claim they were unable to understand the guilty plea because of a lack of communication and understanding with their attorney
§                                 In addition, a formal complaint was filed against D because he was allegedly not competent
·                           Court holds that D be disciplined for violating rules because he was not competent in the case
o                    Committee on Professional Ethics and Conduct of the Iowa State Bar Ass’n v. Miller(30)
·                           D was a lawyer designated as an attorney for an estate. Title problems arose on some land and D made no effort to cure them. In addition, he failed to meet deadlines for filings and testified he was an alcoholic who had only been sober for 9 months
·                           Court holds that D was not competent to handle the estate matter
§                                 In addition, D failed to cooperate with the legal ethics investigation because he did not respond to the committee’s letters
 
·               Malpractice
o                    General Principles
·                           Most states do not award attorney’s fees in malpractice claim because the fee to the second attorney cancels out what they would have had to pay the attorney they sue
·                           Malpractice Insurance
·                           Elements
§                                 Duty, breach of duty, proximate causation, and damages
o                    Elements of the Claim
·                           Lopez v. Clifford Law Offices, PC(33)
§                                 Appeal from dismissal of a legal malpractice claim. P drowned in a pool and retained D to represent her in wrongful death. D then informed P that he would be unable to continue representing him and incorrectly advised P of when the statute of limitations would run
·                                       D moved to dismiss on grounds that the action was still viable when firm stopped their

                   Must work solely for the benefit of the client free from compromising influences
§                                 Must interview client early on in the relationship
§                                 Must conduct a prompt investigation and explore all avenues
·                           Typically the Warden is the defendant
§                                 Because that is where the person is being held
o                    Strickland Test
·                           D must show that the counsel’s performance was deficient
§                                 Fell below an objective standard of reasonableness
·                           D must show prejudice from the deficient performance
§                                 Absent the performance, there was a reasonable probability that the result of the proceeding would have been different
o                    Deficiency of Representation
·                           D must prove that his counsel’s performance was constitutionally deficient; that the errors were so serious that counsel was not functioning as ‘counsel’ guaranteed by the 6th Amendment
§                                 Must be objectively unreasonable
§                                 There is a presumption of reasonableness, so it must be enough to overcome that presumption
·                           Court is highly deferential to counsel
§                                 Court evaluates from counsel’s perspective at the time of the act or omission; does not use ‘hindsight’
·                           Defendant must prove unreasonable performance by a preponderance of the evidence
o                    Wiggins v. Smith
·                           Counsel’s decision to not go beyond presentence report in investigating and preparing for capital sentencing hearing is unreasonable in light of professional norms and prejudicial
o                    Prejudice
·                           D must prove that there is a reasonable probability that but for the errors, the result of the proceeding would have been different
·                           Structural ineffectiveness
§                                 This is where there is a conflict of interest, like representing multiple clients who may have conflicting interests
§                                 Here, prejudice is presumed if counsel objects at trial
·                           Examples
§                                 When D is actually or constructively denied counsel
§                                 When state unconstitutionally interferes with counsel’s assistance
§                                 Areas of conflicts of interest
o                    ABA Standards for Defense Counsel (55)
·                           Inform accused of his rights at earliest opportunity
·                           Take all necessary procedural steps
·                           Duty to investigate
·                           Duty to explore disposition without trial
o                    Strickland v. Washington(60)
·                           D was charged with a series of brutal crimes. Counsel actively pursued pretrial motions and discovery. However, he cut his efforts short after he became hopeless about the case after hearing D confessed, against specific advice, to the murders. Counsel then failed to find character witnesses or request psych exams
§                                 D contends that counsel was ineffective because he did not perform these omissions
·                                       Therefore, he should get a new capital sentencing proceeding
·                           Court holds that scrutiny of counsel’s performance must be highly deferential, without using hindsight to evaluate performance
§                                 Court holds that there was no prejudice in this case, D must affirmatively prove prejudice and it just was not present in the case
§                                 Too many aggravating factors
§                                 No reasonable probability that the omitted evidence would have changed the conclusion