Professional Responsibility
Collin Schueler
Fall 2014
I. Introduction
A. 4 elements of lawyers as professionals MR 6.1
1. every lawyer has a professional responsibility to provide those who are unable to pay
2. a lawyer should aspire to render at least 50 hours of pro bono public legal services a year
3. in addition, a lawyer should voluntarily give money to organizations that provide legal services to persons of limited means
4. some states have reporting requirement (Schwarz)
MR 6.2 Accepting Appointments
5. General rule: a lawyer must not seek to avoid appointment by tribunal to represent a person
6. Exceptions:
i. Representation likely to result in violation of the Rules or other law
1. Not competent
2. Conflict of interest
3. Unreasonable financial burden
4. Moral repugnance – likely to impair client-lawyer relationship (looking for some sort of moral objection)
a. 1.2(b) representation does not equal endorsement
B. Regulation of the Legal Profession
1. Broad principle – generally left to the states
2. Three big players in the regulation of lawyers:
i. ABA Model Rules of Professional conduct (and advisory opinions). Most states have adopted these rules. Supplement p. 153 – chart of disclosure
ii. State Supreme Courts – highest court in each state has the inherent power to regulate all aspects of the legal profession. However, state supreme courts typically delegate that power to:
iii. State bar association. State supreme courts can review their decisions. If you practice in federal court, the federal courts don’t have their own MRs. Instead, fed court adopts that state’s laws.
3. Admission to the Profession
i. 5 requirements
1. pass MPRE
2. graduate from accredited law school
3. pass bar
4. character and fitness
5. comply with rule 8.1
a. 8.1: Bar Admission & Disciplinary Matters
i. An applicant for admission to the bar or a lawyr in connection with a bar admission application or disciplinary matter must not
1. Knowingly make a false statement of material fact;
2. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter; or
3. knowingly fail to respond to a lawful demand for info from an admission or disciplinary tribunal
unless MR 1.6 applies
4. Regulation after Admission
i. Misconduct: MR 8.4
1. Violate the Rules of Professional Conduct; attempt to violate the rules; knowingly assist or induct another to violate the Rules; or violate through someone else
2. Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
a. Three important rules to keep in mind:
i. Will it reflect on your honesty, trustworthiness, or fitness as a lawyer?
ii. A lawyer need not be charged with a crime to be subject to discipline for the wrongful act (or even if the lawyer is acquitted) because the bar uses preponderance standard whereas criminal standard is beyond a reasonable doubt.
iii. 8.4 comment 2 last sentence: pattern of repeat offenses, even if minor considered separately, can reflect indifference to legal obligation
3. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (even if it doesn’t rise to the level of a crime)
4. Engage in conduct that’s prejudicial to the administration of justice
a. Comment 3: a lawyer portrays discrimination through advocating is permissible
5. State or imply ability to improperly influence government agency or official;
6. Knowingly assist a judge or judicial officer in violating applicable rules of judicial conduct or other law
ii. Assuming a lawyer has engaged in misconduct, what are the possible sanctions?
1. Disbarment
a. Can reapply after five years, but must show by a preponderance of the evidence:
i. Rehabilitation;
ii. Complied; and
iii. Fit to practice law
iii. MR 8.5(a) disciplinary authority: where is the lawyer subject to discipline?
1. If everything occurred in one state, then in that state.
2. 3 rules in 8.5(a)
a. if you’re admitted in state A, you’re subject to discipline in State A even if conduct occurred in state B;
b. even if you’re not admitted to state A, you’re subject to discipline in state A if you provide or offer to provide any legal services there (pro hac)
i. you’re first referred to your home state; R 22 provides for reciprocal discipline (your home state will discipline), or prevent future practice in that state
c. You may be subject in multiple states for the same conduct
iv. Choice of law: if a state begins disciplinary proceedings, which state’s rules apply? 8.5(b)
1. Question: If Ky. starts disciplinary proceedings against A for alleged misconduct, which state’s rules of professional conduct apply?
2. If allege
eved by reasonable preparation.
1. Gray area in conjunction with 6.2 – perhaps the judge can come back and say that you can figure it out if you claim that you don’t have experience
iii. Last sentence comment 2 – competent representation can also be provided through the association of a lawyer or established competence in the field in question. However,
iv. Comment 6 – before contracting with lawyers outside the firm, the lawyer must
1. Obtain informed consent from client, and
2. Must reasonably believe the other lawyer’s services will ethically and competently represent the client.
a. See Rule 1.5 – general rule: no fee division between lawyers not in the same firm. Division may be made only if:
d. 1.4(a) A lawyer must
i. promptly inform client of any decision or circumstance with respect to which the client’s informed consent is required;
1. ex. 1.9(a). A lawyer will need a past client’s informed consent in writing if the lawyer is going to represent a new client in the same or substantially same matter where the new client’s interests are adverse to the old client’s.
ii. reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
iii. keep the client reasonably informed about the status of the matter;
iv. promptly comply with reasonable requests for information; and
v. consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules or other law.
e. 1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
