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Professional Responsibility
University of Kentucky School of Law
Gaetke, Eugene R.

Professional Responsibility
Gaetke—Fall 2008

Chapter 1: Professionalism & the Practice of Law
The Concept of Professionalism
· Core principles of legal ethics:
1.) Competence
2.) Loyalty
3.) Confidentiality

· What is professionalism?

Roscoe Pound said that professionalism “refers to a group… pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.”
Charles Wolfram said that there are 4 key elements of a profession:

1.) Its practice requires substantial intellectual training and the use of complex judgments
2.) Clients must trust those they consult, since they cannot adequately evaluate the quality of the professional’s work
3.) Self-interest is sublimated to the client’s interest and public good
4.) It is self-regulating

· Bates v. State Bar of Arizona (1977)

2 Arizona lawyers were disciplined by the bar for running an ad in the newspaper for their “legal clinic” which said that the offered “legal services at very reasonable fees” and then listed their fees for certain routine services; AZ laws banned all lawyer advertising
SCOTUS held that if the ads were not false, deceptive or misleading, they were protected by the 1st Amendment and therefore the state bar rules were unconstitutional
Majority said that they failed to find the connection between advertising and the erosion of true professionalism

· Shapero v. KY Bar Association (1988)

Lawyer challenged the decision that declined to approve the content of a letter that he wrote; KY Supreme Court Rule (patterned after MR 7.3) prohibited lawyers from soliciting legal business
SCOTUS held that such advertising was constitutionally protected speech, subject to restriction only in the service of a substantial governmental interest, and only through means that directly advance that interest
Dissent argued that the states should be able to ban advertising that is “potentially or demonstrably misleading” as well as truthful ads because there is always a substantial governmental interest in promoting the high ethical standards that are necessary in the legal profession


MR 6.1—Urges lawyers to do at least 50 hours of pro bono work per year and financially contribute to organizations who provide legal aid; the rule is purely aspirational, no disciplinary action taken if not followed
MR 6.2—This rule however, is mandatory and forbids a lawyer from seeking to avoid being appointed by a court to represent a client, except for good cause

· Schwartz v. Kogan (1998)

FL lawyer challenged the rule that required members of the bar to report as a part of their annual dues statement whether they complied with the responsibility to perform pro bono work
Court said that the reporting requirement was a rational way of encouraging pro bono service and giving the court information that might be useful in providing better service to the poor

Sources of Regulation of Lawyers

History—Rules of professional conduct are designed to provide a basis for the discipline of lawyers; provide “model” rules which have been largely adopted, but primarily left up to the states

Sanctions—Each state also determines its own sanctions for violations of its rules

§ MR 8.5—Any lawyer admitted in a jurisdiction is subject to THAT jurisdiction’s authority, no matter where the misconduct occurs; a lawyer may also be subject to a jurisdiction’s authority “if the lawyer provides or offers to provide any legal services in that jurisdiction”
§ Sanction imposed depends on the facts of the case, looking at (1) the ethical duty violated, (2) the lawyer’s mental state, (3) the extent of the actual or potential injury caused by the violation, and (4) any aggravating or mitigating factors
1. Disbarment—typically not permanent but must prove by clear and convincing evidence that they are rehabilitated and have complied with orders
2. Suspension—ABA recommends between 6 months and 3 years; must show rehabilitation, compliance with orders and fitness to practice law
3. Public Remand (or censure)—a declaration that the lawyer’s conduct was improper, without restricting their right to practice law; may be subject to certain conditions
4. Private Remand (or admonition)—a formal sanction in which the lawyer is told that his or her conduct was improper, but the public is not informed of the lawyer’s identity; used when there is negligence with little or no likelihood or repetition
5. Probation—may be imposed as a stand alone sanction, in conjunction with a reprimand or suspension, or as a condition of reinstatement; ABA says that it is appropriate for conduct that may be corrected
§ RECIPROCAL DISCIPLINE—The idea that a court’s ruling in a disciplinary matter is entitled to full faith and credit in other jurisdictions; after notice to one state that a lawyer subject to its jurisdiction has been disciplined in another matter, that state “shall impose the identical discipline” unless the imposition of the identical discipline would be inappropriate

Disciplinary Powers and Procedures

§ STATE COURT POWER—Ultimate authority for disciplining lawyers resides in the highest court of each state
ú Inherent powers doctrine—power to regulate lawyers lies entirely within the courts; state legislatures have no power at all
§ FEDERAL COURT—No uniform rules of ethics in federal court; each district can define its own rules and determine its own sanctions
§ STATE PROCEDURE—Largely similar procedures used among the states to discipline lawyers; state courts perform investigatory, prosecutorial and adjudicative functions; Disciplinary Board performs appellate functions and makes recommendations about rules; lawyers under investigation have a mandatory duty to cooperate with the investigation
ú ABA—Creates model sets of ethical principles that they forward to the state supreme courts for their adoption to become the rule of the state (similar to ALI, etc.); Cannonsà Codeà Kutak Commissionà Model Rules (adopted in 42 states); also issues ethics opinions and determines standards for accreditation of law schools
ú State Bar Associations—2 Types: (1) Unified/ Integrated Bar Associations in which you must be a member of the bar to practice in the state; (2) Voluntary associations; determine admissions into the bar through bar exams and conducting character and fitness; discipline; also issue ethics opinions


Designated groups issue both formal and informal opinions interpreting the rules under hypothetical facts
Both the ABA and the state bar associations issue ethics opinions
These opinions are ADVISORY ONLY and do not adjudicate actual disputes or serve as binding precedent


The Connection to the Disciplinary Process

§ The rules are incorporated into a good deal of the general substantive law
§ MR 8.4—Labels “professional misconduct” as the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” or engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”
§ Lawyers can be disciplined for conduct having nothing to do with practicing law

Relevance Outside the Disciplinary Context

§ Lawyers are usually subject to the same kinds of civil liability and criminal penalties as any non-lawyer who commits the same acts
§ MR 3.4—Fairness to Opposing Party and Counsel; the rules themselves are not totally self-contained; they often refer to outside law (like the federal rules of evidence, etc.) to determine if you violated the rule itself

Legal Education and Bar Admission
· The Bar Examination

Almost all jurisdictions require new lawyers to take and pass a bar examination; WS has a “diploma privilege”
No national bar exam, but it does have a multistate portion

§ MBE—Multistate Bar Exam
§ MPRE—Multistate Professional Responsibility Exam

MR 8.1—Prohibits an applicant for admission to the bar from knowingly making a false statement of material fact, or failing to disclose a fact necessary to correct a factual misapprehension
RECIPROCITY—Once you pass the bar in one state, several states will allow you to be admitted without taking their bar exam

§ Must show how many years you have been a lawyer; pass character and fitness test
§ Not usually available in the “sun belt” states; prevents retirees from moving there to practices
§ Most states do NOT allow foreign law degrees (NY allows it if you pass the bar)

· Character and Fitness Test

In addition to (1) going to an ABA accredited law school and (2) passing the state bar exam, an applicant to the bar must (3) pass a character and fitness review by the state supreme court or the ABA
BURDEN OF PROOF—Burden lies on the applicant to prove good character; burden is typically on the applicant for any kind of license; must show to their satisfaction that you ought to have the license; there is not “right” to it

§ Must prove by clear and convincing evidence
§ If it was a disciplinary matter, the burden would be on the state to prove it

What types of things to people get in trouble for? Anything that reflects on honesty or fraud (cheating, false forms, fake statements in applications); bad credit history, crimes

§ A criminal record alone might not prevent certification to the bar, but lying on the bar application form about a prior criminal record would result in denial of admission in most states

· Admission Without Passing the Bar Exam

(1) Diploma Privilege—in Wisconsin
(2) Pro hac vice admission—applies to litigators who enter a state in which they are not admitted for purposes of handling a particular lawsuit; granted liberally but usually say they must associate local counsel; not allowed in C

nt it was reasonably foreseeable that their actions would lead to this result
ú Proximate cause is seldom a big issue, but it can come up

4.) Harm/ Damages


In the Vandermay case, the court found the expert testimony was not necessary to prove legal malpractice
A jury ought to be able to understand if the lawyer did or did not do an act that was required of them
Generally, however, plaintiffs will come forward with expert testimony


Contributory Negligence

§ Most courts say that contributory negligence can also be applied to legal malpractice cases
§ However, a court would not be inclined to use this as a defense if a fiduciary duty was breached
§ MR 1.6—The lawyer can walk out and withdraw if the client insists on taking actions that the lawyer finds to be imprudent

Statute of Limitations

§ Most courts follow the “discovery rule”—statutes begin to run when the client should have or did realize that malpractice was going on
§ Continuous representation—extends the statute even further until the representation has ended; this is because clients are understandably relying on the lawyer and they might be reluctant to call a lawyer would while still being represented
§ Courts generally like statutes of limitations

Ineffective Assistance of Counsel
· Strickland v. Washington (1964)

Defendant sought to overturn his conviction based on this lawyer’s perceived ineffective representation

1.) Must show that counsel’s performance was deficient
ú Errors were so serious that the counsel was not operating as such according to the 6th Amendment
ú Look at “reasonably effective assistance”; reasonableness under the prevailing professional norms
2.) Must show that the deficient performance prejudiced the client
ú Showing that counsel’s errors were so serious as to deprive the defendant of a fair trial
ú Question becomes whether there was an ACTUAL EFFECT on the outcome of the proceeding
ú Must show a reasonable probability that but for defense counsel errors, the result would have been different

VERY TOUGH standard with the more difficult prong being to show prejudice
The underlying purpose of the 6th Amendment is a fair trial so client must show they did not get that
Dissent argued that there was too much focus on the outcome rather than the process
Strickland governs ineffective assistance challenges in both federal and state courts

· A later case, US v. Cronic held that a defendant did not have to prove prejudice in cases where the defense counsel was absent at critical stages of the defendant’s trial
· Burdine v. Johnson (2001)—Court found that the defendant’s 6th Amendment right to counsel was violated when his counsel repeatedly fell asleep during not insubstantial portions of the guilt-innocence phase of the defendant’s capital murder trial

Held that US v. Cronic required them to presume that a 6th Amendment violation prejudiced the defendant
Cronic called for the presumption of prejudice when at a critical stage of the trial, counsel is either (1) totally absent, or (2) present but prevented from providing effective assistance
Court strangely points out that if the lawyer was drunk or impaired, but awake, it would have been better because they still would have been able to exercise some judgment; however, others believe that this may be worse than asleep

Malpractice in Criminal Matters
· Wiley v. County of San Diego held that ACTUAL INNOCENCE is a necessary element of the cause of action for legal malpractice in a criminal proceeding; the defendant has to prove by a PREPONDERANCE OF THE EVIDENCE that he did not commit the crime
· Public policy rationale—don’t want a guilty defendant to by able to profit from his crime just because he had a bad lawyer
· Another rationale provided was that there is no need for a civil remedy because you can get the conviction overturned, however this doesn’t seem very convincing