Professional Responsibility Outline
Summer 2005
Hazlett
CHAPTER II
1) Regulation of the legal profession
a) Admission to the bar
i) Does cheating involve dishonesty, fraud, deceit, or misrepresentation? See rule 8.4(c) what a licenses attorney would be subjected to.
(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) Why required?
(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) May a bar association fingerprint all applicants to find people such as Smith who change their name? Yes. Court allows it in dicta.
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) Problem 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 section 5 calls it “the appearance of impropriety”, though that phrase is not in the model rules.
(2) What are the 3 purposes/functions of the lawyer discipline process?
(a) Identify and remove from the profession all serious deviant members (cleansing function)
(b) To deter normative deviance and maximize compliance with norms among attorneys (deterrence function)
(c) Maintain a level of response to deviance sufficient to forestall public dissatisfaction (public image function).
(3) Representing Clients competently and diligently are among the most important ethical responsibilities of a lawyer.
(a) Model Rule 1.1: Competence
(b) Model Rule 1.3: Diligence
(c) Model Rule 8.4: “fitness as a lawyer in other respects”
(4) Attorneys under 8.4(b) are subject to discipline for behavior not in his or her capacity as an attorney?
(a) Rule 8.4(d): Conduct prejudicial to the administration of justice
(i) Klein (51): A STATE MAY NOT DISBAR AN ATTORNEY FOR PLEADING THE FIFTH AMENDMENT.
ii) Aggravating and Mitigating Factors in Discipline Cases: the Problem of Alcohol and Drug Abuse
(a) Standard: lawyer must show that she had such a serious and debilitating mental condition that she could not complete the least of her day to day activities in a normal fashion. That evidence was insufficient here.
iii) Interstate Discipline
(1) What jurisdictions may impose professional discipline on a lawyer?
(a) Model Rule 8.5 (a): any state in which the lawyer is licensed may discipline a lawyer for misconduct wherever it occurs and even a state to which the lawyer travels for temporary practice may try the lawyer for conduct occurring there.
(2) Does each jurisdiction simply apply its own standards to evaluate the conduct?
(a) Rule 8.5(b): (b)(2) has a safe harbor provision for reasonable belief that the predominant effect of the conduct will be in a particular jurisdiction. See comment 5.
(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.
(b) 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.
iv) The duty to report another lawyer’s misconduct: The discipline process itself
(1) Should the bar discipline a lawyer for failure to report another lawyer?
(a) Rule 8.3
(i) Most under-enforced rule.
(b) In Re James H Himmell (56): ONLY case to discipline for failure to report. Himmel represented a client injured in motorcycle accident. Earlier, she had a different lawyer in her personal injury action. He negotiated 35k settlement, got set
punitive damages, breach of contract, or breach of fiduciary duties
b) Problem 3
c) Standard of care and conduct in a malpractice case
i) By what standard should a lawyer be judged in a malpractice case?
(1) Elements of professional negligence as: (65)
(a) Employment of atty or other basis for imposing a duty
(b) Failure o tatty to exercise ordinary skill and knowledge and
(c) Such negligence proximate cause of damage to P.
(2) Restatement 2d § 52(1)
(a) ” A lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances”.
(3) Lowman (66): clients tend to follow their lawyers’ advice and do not have independent bases on which to evaluate a settlement. Recommending an inadequate settlement may indeed constitute malpractice.
ii) Obligated to refer the tax case to a specialist?
(1) Horne (67): Is the duty of an atty who is a general practitioner to refer his client to a specialist or recommend the assistance of a specialist if under the circumstances a reasonably careful and skillful practitioner would do so. Rule 1.2(c) will not protect at lawyer here.
(2) Battle (67): In a Jurisdiction that doesn’t certify specialties, malpractice standard is the ordinary lawyer, not persons who concentrate their practice in a given area of the law.
iii) Criminal D whose defense handled badly?
(1) Wiley (67): Majority rule is that the D must prove that he was actually innocent.
(2) Restatement 3d § 53: not necessary to prove convicted D was innocent. Necessary for a former criminal D seeking damages for malpractice causing a conviction to have had the conviction set aside…
iv) Professional malpractice to persons other than her client?
(1) Restatement 3d § 51: four situations where liability may be found
(a) Prospective client for revealing confidential information communicated to the lawyer, for example if lawyer fails to tell prospective client that the statute of limitations will soon run out.
(b) Beneficiaries named in a client’s will if, due to lawyer’s negligence will doesn’t carry out T’s intent. (split in authority here)
(c) Non client to whom the lawyer expressly assumes an obligation to investigate facts and accurately report them to the non client.
(d) A lawyer who aids a trustee like fiduciary to breach an obligation to the intended beneficiary of the fiduciary’s duty may be liable to the beneficiary.
(2) In some states like NY and TX privity is required to maintain malpractice action.
