Professional Responsibility Outline

University of kansas school of law
Professional Responsibility Fall 2012 Gottlieb
 
 
               
           
 
 
 
 
 
 
 
 
 
 
 
 REGULATION OF THE LEGAL PROFESSION
 
I.      Character and Fitness in Admission to the Bar
A.    Problem 1: Character and Fitness in Admission to the Bar
1.     Problem 1 hypo: 
a)    Guy cheats on exam, should he be denied acceptance to the bar?
(1)  This would be a problem; however, there is a likely an argument for it just being an isolated incident that you could argue to the committee.
b)    Dean covers up the incident and doesn’t tell the Bar Association as a plea agreement where the student accepts a failing grade, is this ok for the Dean?
(1)  No, Dean has no right to make this plea bargain, he needs to admit this to the Bar Association.
B.    What does the requirement of “good moral character” mean?
1.     Question 1:  Every American jurisdiction requires that applicants for admission to the bar have the necessary “character and fitness” to practice law.  What do states mean when they say that a lawyer must of “good moral character”?
a)    Rule 702 – must be of good moral character and mentally and emotionally fit to….
b)    Rule 704 – burden of convincing “good moral character” lies on the applicant and standard is clear and convincing.
2.     Felony convictions have been used as a basis for denying admission to the bar.  Matter of Prager.
3.     Dishonesty in handling money has also been used to deny admission.  In re Mustafa.
4.     Filing for bankruptcy or a maintaining low credit rating may reflect poorly on an applicant's sense of responsibility.  In re C.R.W..
C.    How candid should an applicant be?
1.     Question 2:  How candid should you advise Smith to be in his bar application?  Do you have to tell that you’ve cheated?
a)    Be VERY candid!
b)    If you are asked, then yes be very candid.
c)    If not asked to disclose, you should disclose anyway.
(1)  Rule 8.1(b) on pg. 434.
d)    Is the failure to disclose as bad as the cheating?  Yes.
2.     An applicant's misrepresentation of harmless facts may prove more damaging than his revelation of serious misconduct.
3.     For example, one applicant was denied admission because he lied about the number of minor traffic citations he had received; while another applicant was admitted despite his revelation that he had been failed for plagiarism in one course.  Attorney Grievance Comm'n v. Myers; In re Zbiegien. 
D.    Faculty Obligations
1.     Law schools and their deans are immune from liability for their statements made in cooperation with investigations conducted by bar admission officials.  Zielinski v. Schmalbeck.
 
 
E.    Standards of Knowledge for Bar Admission
1.     Most states require that applicants to the bar graduate from an ABA accredited law school.
a)    The ABA accreditation process is entitled to First Amendment protections.  Massachusetts School of Law at Andover, Inc. v. American Bar Association.
b)    This requirement has been relaxed for foreign attorneys with common law training.  In re Application of Gail Collins-Bazant.
2.     The Americans with Disabilities Act may require examiners to make reasonable accommodations to applicants with learning disabilities or other physical ailments.  D'Amico v. New York State Board of Examiners; In re Rubenstein.
F.    Other Requirements
1.     Limiting admission to the bar to state residents is a violation of the Privileges and Immunities clause.  Supreme Court of New Hampshire v. Piper.
2.     The Equal Protection clause also prohibits states from requiring bar applicants to be U.S. Citizens.  In re Griffiths.
3.     But a state may require an attorney to maintain an office within the state.  Tolchin v. Supreme Court of New Jersey.
G.    Admission to Multiple State Bar Associations:  Many states guarantee admission to experienced attorneys licensed in a state that will reciprocally admit their attorneys.
 
II.     The Disabled Lawyer and the Problem of Neglect
A.    Hypo:  One attorney tells the other that he needs to kick the sauce as it is affecting his work and the drunken lawyer says, “Sod off, you take way too many cases and you are neglecting your clients.”
1.     Potential violations?  Yes, violations of Rules 1.1 and 1.3.  However, the potential neglect situation would probably not be an official violation until some incident has occurred (such as, missing sol, or failing to file something, etc.).
a)    1.1 – A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (312)
(1)  relates more to the drunk.
b)    1.3 – a lawyer shall act with reasonable diligence and promptness. (323)
(1)  relates more to the neglector.
2.     Violations can result in censure, disbarment, suspension, reprimand, settlement, etc.
B.    Attorneys who incompetently or negligently handle a case, or who neglect to handle a case, may be subject to disciplinary proceedings.  Model Rules 1.1 & 1.3; In re Wolfram; Iowa Supreme Court Board of Professional Ethics and Conduct v. Hill.
C.    Other Conduct Subject to Disciplinary Action
1.     Rule 8.4 listing.
a)    Ex.- 8.4(b) – commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(1)  Don’t have to be convicted to count!
b)    Conduct does not have to directly affect job performance as an attorney.
c)    Failure to pay child support?
(1)  Florida v. Taylor: says no, child support is not subject to sanctions.
d)    Can a lawyer be disciplined for taking the 5th Amendment?  No, are allowed to plead the 5th.
e)    Can a lawyer refuse to answer on the grounds that they don’t want the disciplinary committee find out what you did?  No, there is no privilege for not incriminating yourself to the disciplinary committee like there is for criminal situations.
2.     Criminal Acts
a)    Marijuana conviction…..enough in and of itself to deny entry?
(1)  Yes.
(2)  Bar examiners have the discretion to grant or deny entry based on a single marijuana conviction or any other matter.  Committee looks at these matters on a fact specific basis.
b)    Professional discipline may be imposed for “criminal acts that reflect adversely on the lawyer's honesty, trustworthiness, or fitness,” or “conduct involving moral turpitude.”  Model Rule 8.4(b); DR 1.-102(A)(3).
c)    Attorneys have been disciplined for domestic abuse, negligent homicide, breaking and entering, and extortion among others.
3.     Dishonesty
a)    Attorneys are prohibited from engaging in dishonest, fraudulent or deceitful conduct.  Model Rule 8.4(c).
b)    Attorneys have been disbarred for excessive billing of clients.  In Matter of Haskell.
4.     Obstruction of Justice
a)    Attorneys are prohibited from “conduct prejudicial to the administration of justice.”  Model Rule 8.4(d); DR 1-102(A)(5).
b)    This standard has been used to disbar an attorney who filed a frivolous case, made false statements to a tribunal, introduced false evidence and obstructed access to evidence.  In re Caranchini.
c)    Attorneys have also been disciplined under this standard for telling clients to hire a judge's relative to force a recusal.  Grievance Administrator v. Fried.
5.     Attorney