Professional Responsibility/Legal Ethics Outline

Professional Responsibility, Professor Underwood, Fall 2016

INRTRODUCTION TO PROFESSIONAL RESPONSIABLITY (Chapter 1)

Methods of regulating lawyer Conduct: Admissions and Reporting Misconduct

Admission to Practice

Must graduate from law school
Passing grade on a state’s bar examination
Applicants must be in “good Moral Character”

Problem 1-2

Rule 1.6: Confidentiality of information. More is protected than just confidential information. Information relating to representation of a client, UNLESS client gives informed consent.

Ordinarily, the attorney-client privilege prohibits an attorney from revealing information pertaining to the representation of a client.However, the attorney may reveal information protected by the attorney-client privilege if one or more of the following conditions exists: 1) the client gives informed consent, 2) the disclosure is impliedly authorized in the representation of the client, 3) the disclosure will prevent reasonably certain death or substantial bodily harm, 4) the disclosure will prevent the client from using the attorney’s services to commit a reasonably certain crime or fraud that will cause substantial injury to the financial interests or property of another, or the disclosure will mitigate or rectify such damages, 5) to secure legal advice about the attorney’s compliance with these Rules, 6) to comply with other law or a court order, or 7) to defend the attorney in a civil or criminal charge related to the matter or to respond to allegations pertaining to the attorney’s representation of the client.Unless information protected by the attorney-client privilege becomes generally known upon the end of the representation, an attorney cannot use confidential information obtained while representing a former client against the interests of that former client.

Rule 5.2: Responsibility of a subordinate lawyer. A subordinate attorney is liable for a violation notwithstanding that he acted at the direction of another, although a subordinate attorney is excused from liability if he follows a supervisory attorney’s reasonable resolution of a question of professional conduct.

Is subject to rules of Professional conduct, they also do not violate the Rules if that lawyer acts in accordance with a supervisiory lawyer’s reasonable resolution of an arguable question of professional duty. Have a duty to instruct non-lawyers employees about etical aspects.

Rule 8.3: Reporting Professional Misconduct: An attorney commits professional misconduct when he 1) violates or attempts to violate the rules, 2) knowingly assists or induces another to violate the rules, 3) commits a criminal act that reflects adversely on his honesty, trustworthiness, or fitness, 3) engages in dishonest, fraudulent, deceitful, or misrepresentative conduct, 4) states or implies improper influence over a government agency or official, or 5) knowingly assists a judge or judicial officer in a violation.

An attorney must inform the appropriate authority when he knows that another attorney has committed a violation that raises a substantial question of honesty, trustworthiness, or fitness.An attorney must inform the appropriate authority when he knows that a judge has committed a violation that raises a substantial question of fitness for office.However, these duties do no require disclosure in violation of rule 1.6 or when the attorney gains such knowledge while participating in an approved attorney assistance program.

An attorney is subject to discipline in the jurisdiction in which he is admitted to practice, regardless of where the violation occurs.However, in addition to such proceedings in his jurisdiction, an attorney also is subject to discipline in the jurisdiction in which a violation occurs if he provides or offers to provide legal services in that jurisdiction.The disciplining body shall apply the rules of the jurisdiction in which a tribunal is located for violations in connection with matters pending before the tribunal; otherwise, the disciplining body shall apply the rules of the jurisdiction in which the attorney’s conduct occurred or has a predominant effect.

Duty to report misconduct by another lawyer

Wieder v. Skala- Pg. 40
Himmel Pg. 42

THE ATTORENY-CLIENT RELATIONSHIP (Chapter 2)

Duty of Competency

Duty of Competency

Problem 2-1 (Competency of defense counsel in criminal case)

Rule 1.1: Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Must be able to research, write, advocate and negotiate. Must become competent or get co-counsel, always can refer to other counsel.
The ethical duty of competency

Florida v. Sandstrom (Pg. 65)

Ineffective assistance of counsel Malpractice liability of defense counsel

Strickland v. WA- Pg. 66

Williams v. Taylor pg. 66

US v. Cronic- Pg. 68

Bell v. Crone- Pg. 68- Ct narrowed Cronic exception

Malpractice liability of defense counsel

Coscia v. McKenna- Pg. 69

Problem 2-2 (The duty of competency in civil cases and transactional matters)

Rule 1.1- ABOVE
Rule 1.2(c)- A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Rule 1.8(h)- A lawyer shall not (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement, or
Togstad v. Vesely, Otto, Miller & Keefe
The meaning and scope of “legal malpractice”
Limited Engagement agreements must contain: (1) Clearly state that it is a limited engagement agreement, (2) should specify the matter and the services that the lawyer will render with respect to that matter, (3) should have a general provision excluding from the agreement any services not specifically covered by the engagement.
Lerner v. Laufer: Pg. 77
Barnes v. Turner Pg. 77

Legal fees, expenses, and client property

Problem 2-3 (Continent fees, expenses, and fee splitting)

Rule 1.5: Cannot charge, negotiate, or collect an unreasonable amount for expenses.

Factors to consider: (1) time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer, (3) the fee customarily in the locality for similar legal services, (4) the amount involved and the results obtained, (5) the time limitations imposed by the client or by the circumstance, (6) the nature and length of the professional relationship with the client, (7) the experience, reputation, and ability of the lawyers performing the services and (8) whether the fee is fixed or contingent.

Rule 1.8(e): Conflict of interest; current clients; specific rules:

As for business transactions, a attorney may not enter into a business transaction with a client or acquire an interest adverse to a client unless 1) the attorney provides writing to the client that explains the matter and advises the client to seek independent legal counsel, and 2) the client gives informed consent in writing which addresses whether the attorney will be representing the client in the matter.

As for gifts from clients, an attorney shall not receive any substantial gift, including a testamentary gift, from a client unless the client is someone with whom the attorney maintains a close, familial relationship.

As for literary and media rights, an attorney shall not negotiate literary or media rights prior to the conclusion of the representation of a client.

As for the payment of a client’s bill, a attorney shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that (1) a attorney may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

Rule 1.15: Safekeeping property

An attorney must separate client property from his own property, and the attorney shall keep complete records of client account funds and other property for five years after termination.As for money, the attorney must keep client funds in a separate account (i.e., the client trust account) maintained in the state where the attorney’s office is situated, or elsewhere with the consent of the client or third person.The attorney may deposit his own funds in the client trust account.The attorney may withdraw from the client trust account