Professional Responsibility Outline
Hazlett
1) Regulation of the legal profession
a) Admission to the bar
i) Rule 8.4(c) “it is professional misconduct to engage in conduct invloving dishonesty, fraud, deceit or misrepresentation”
(1) The cheating isn’t the largest part of the problem. It’s covering up the cheating, etc..
(2) There is no statute of limitations on how long prior incidents can affect current bar admission decisions, but the older the conviction is the more likely the person is to get to sit for the bar.
ii) Character and Fitness for admission to the bar
(1) Reasons
(a) Shields clients from potential abuses, such as misrepresentation, misappropriation of funds, or betrayal of confidences.
(b) Safeguards the administration of justice from those who might subvert it through subordination of perjury, misrepresentation, bribery, or the like.
(c) Bar’s own interest in maintaining a professional community and public image. They want to enhance its members’ social standing.
(2) What is good moral character
(a) Felony convictions, dishonesty in money handling, low or bad credit have all been used to deny admission to the bar.
iii) Candor in the bar application process
(1) How candid must bar applicants like Smith/Saville and their supporters be in the application process?
(a) VERY CANDID. If it is asked, answer in the affirmative.
(b) Is failure to disclose as bad as cheating? Yes. Possibly worse.
(i) Misrepresentation of harmless facts may prove more damning than revelation of serious misconduct.
1. disbarment for lying on bar application about # of traffic tickets
(ii) Applicants may be rewarded for honesty
1. Zbiegien (38): applicant admitted to plagiarizing several pages of a document but said he was under great stress. Reported the incident. He was admitted, though the bar could have chosen not to admit him.
(c) Is it possible to be too candid?
(i) YES. Taylor (38): Applicant admitted on his application that he really had intended to steal something, after charges against him were dropped after he claimed he didn’t intend to steal the item. He was denied admission.
iv) A bar association may fingerprint all applicants
v) Rule 8.1 Bar Admission and disciplinary matters. Applies to applicants and lawyers representing them.
(1) Under 8.1(b) you may not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter.UNLESS the information is protected by rule 1.6 (atty client priv/confidentiality).
(i) Must watch out for rule 1.6 and 3.3.
(b) What about the dean?
(i) Zielinski (40): A dean’s report is subject to absolute immunity from civil liability, so long as not acting under color of state law.
2) Lawyer Discipline and the Disabled Lawyer (46)
i) Conduct that can subject a lawyer to professional discipline
(1) Rule 8.4… It has a catch all provision. Restatement 3rd secti
bor provision for reasonable belief that the predominant effect of the conduct will be in a particular jurisdiction. See comment 5.
(b) Comment 5: So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this rule.
(3) What is the effect of lawyer discipline in on estate on a lawyer’s status in other states where the lawyer is admitted to practice law?
(a) Federal courts generally adopt the rules of the states in which they sit. May require to show cause why should impose reciprocal discipline.
In re Kramer (56): NY disbarred a lawyer after a hearing for misconduct in 2 separate cases. Central dist court of CA imposed reciprocal discipline. 9th circuit found Kramer hadn’t received due process before imposition. Dist court issued order to show cause why discipline should not be imposed, held a hearing and then disbarred him again. 9th circuit upheld finding that Kramer had burden of proving either (selling factors) ; (1) deprived of due process (2) evidence of misconduct insufficient in first proceeding or (3) grave unjustice if reciprocal discipline imposed.
