Professional Responsibility
Schultz
Spring 2015
1. Introductory Materials: Historical Patterns & Sources of Regulation
a. Reminder: discretion pervades the formal and informal regulation of the legal profession.
b. Historical patterns of regulation
i. 19th century
1. Common law, including rules on agency, tort, &c.
2. Most other civil and criminal law would apply to attorneys generally.
a. For example, attorney-client privilege may override an otherwise compelled disclosure.
3. Minimal specialized regulatory framework
ii. 1908 – Canons of Professional Ethics promulgated
1. First effort on part of legal profession to pass some sort of uniform system of rules and guidelines for regulation of the sector
iii. 1964
1. Powell, then president of ABA, appoints Commission to come up with new rules
iv. 1969 – Model Code of Professional Responsibility
1. As indicated, merely a model. Subsequently adopted in some variation or form by most American jurisdictions.
v. 1983 – First Edition of the Modern Rules of Professional Conduct
1. Adopted in some measure by 47 states and DC
vi. Ethics 2000
1. ABA makes some changes to MRPC
vii. 2012
1. Additional changes and proposals to change MRPC
c. Remarks on the Model Rules
i. We’re not obligated to obey them. They are Model Rules. However, most jurisdictions base their own regulations (with vary degrees of being binding) on the Model Rules.
ii. The courts may view the MRPC and ABA releases thereon as instructive, but such materiasl are ultimately authoritative.
d. Sources of Regulation, Formal and Informal
i. MRPC (with noted limitations)
ii. Statutes
iii. Common law
iv. Norms and values of lawyers
e. Themes of Lawyer Regulation Generally
i. Tension: Self-regulation versus government regulation
1. Weaknesses of self-regulation include potential COIs, concentration of regulatory authority in the hands of powerful parties, undermining of public confidence in regulatory regime, masquerading of protectionism and self-enrichment as SRO behavior.
2. Strengths: subject matter expertise, rules (ideally) promulgated prospectively rather than reactively, size and diversity of legal profession greatly mitigates COIs, permits essential independence of profession.
ii. Why have rules in the first place? Why not let the market sort it out?
1. General desire for predictable order, and
2. Resultant lowering of transaction costs.
1. Basic Duties and Functions of Lawyers
a. Basic f(x)s of lawyers under the MRPC. See MRPC Pmbl.
i. Paragraph 1
1. Lays out three roles of attorneys
a. Representative of client(s)
b. Officer of court
c. “Public citizen having special responsibility for the quality of justice”
d. Notes on the roles
i. Schultz would add a fourth role
1. Ethical individuals
ii. Ideally, these roles are in harmony but when they conflict we face thorny ethical issues.
ii. Paragraph 2
1. Lays out more specific functions of attorneys as they represent clients
a. Advisor
b. Advocate
i. “zealous advocate”
c. Negotiator
d. Evaluator
iii. Paragraph 3
1. Additional functions outside of straight representation
a. 3rd party neutral
b. Nonprofessional capacity
iv. Paragraph 4
1. Competent, prompt, and diligent
2. Confident communications
v. Paragraph 5
1. Professional in business and personal affairs
vi. Paragraph 6
1. Should seek improvement of the law and access to justice
vii. Paragraph 9
1. Recognition of existence of conflicting responsibilities
viii. Paragraph 14
1. Some rules are imperative, some are drafting as guidelines.
2. Comments
a. Try to construe rules as consistent with statutory norms. In those rare situations of conflict, law trumps.
ix. Rule 1.0 – Terminology
1. “Know” and variants is construed as actual knowledge, which can be inferred.
2. “Shall” is mandatory.
3. “May” is permissive.
4. “Tribunal” court; arbitrator in binding proceeding; or a legislative body, administrative agency, or other body acting in an adjudicative capacity.
x. Rule 2.1
1. The lawyer’s role as advisor
a. Lawyer shall exercise independent professional judgment and render candid advice. Lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to client’s situation.
b. Some basic duties of lawyers include (may overlap):
i. Service of clients’ best interests
1. Loyalty
ii. Observance of the law
iii. Observance of disclosure obligations
iv. Competence
v. Exercise of due diligence
vi. Acting as agent of the court
vii. Honest management of client expectations
1. Education of client
viii. Broader social duties
ix. Self-assessment
1. Compelled Disclosure of Professional Misconduct
a. Rule 8.3
i. Mandatory disclosure. Lawyers and attorneys. Requires knowledge. “Substantial” question as to that lawyer’s honesty, trustworthiness, or fitness.
1. “Substantial” refers to seriousness of possible offense rather than quantum of evidence
a. If the violation impacts someone’s Constitutional rights, that’s likely to rise to the requisite level.
2. “Knows.” More than mere suspicion, but less than absolute certainty. Don’t need clear and convincing evidence, but merely having a client tell you may not be enough. There is no duty to independently investigate suspicious activity.
a. In the face of a lack of clear knowledge, this language will provide a strong defense for a lawyer charged with violation of MRPC 8.3.
ii. Rule 8.3(c) – does not overrule attorney-client privilege. So, if you’re representing an attorney, attorney-client privilege applies to information passing between the attorney-client and the representative attorney. There is also a safe harbor for lawyers’ assistance programs.
b. Rule 8.3 and Analogues in Operation
i. Rule is widely ignored.
ii. Substantial amount of discretion built into Rule. See comments.
iii. No reporting obligation for situations where you’re being investigated.
iv. No independent reporting obligation for attorneys retained by attorneys to fight/advise on misconduct charges.
v. No timing provisions contained in the rule.
1. Extremely unlikely that someone could be sanctioned for reporting to early.
2. Should fold back into knowledge analysis.
c. Analysis
i. Is the violation substantial?
ii. What is the level of knowledge of the violation?
d. In re Himmel
i. Background
1. Personal injury conversion of funds case. Attorney sues client’s former attorney for conversion of PI award.
2. Attorney agrees to contingency fee. Client instructs attorney not to report former attorney to bar. Attorney
ity, and conduct in international (Estonian) litigation.
a. General counsel had brought these issues up to management team. It is unclear whether these issues were indeed resolved, but from the perspective of Kidwell it appears that the mgmt team was stonewalling.
3. Kidwell drafted e-mail to mgmt team outlining his grievances and threatens to speak out regarding the practices of the medical device company.
4. Kidwell ushered out within two weeks. Brings suit under state whistleblower act’s non-retaliation provisions.
ii. Analysis
1. In theory, attorneys covered by Minnesota whisteblower act.
2. However, the attorney still loses. This is for two primary reasons.
a. The complaint must be filed with or brought to an appropriate governmental agency. This in and of itself vitiates the cause of action.
b. The attorney was not engaged in protected speech when writing the e-mail to the management team.
i. This is the significant part of the analysis.
ii. The attorney was hired to give legal advice. The obligation of the general counsel is not to alert the authorities to every act of their client that may be illegal.
iii. Additionally, clients have broad discretion to fire their attorneys in the course of the provision of legal advice.
1. Basically, the clients get to call the game. If the clients don’t like the legal advice, there’s broad firing discretion.
3. The Whistleblower Act requires the filing of a complaint in good faith.
a. Does this indicate that the in-house counsel needs to afford their client the maximum ability to bring their conduct within the bounds of the law?
4. What does this demonstrate? Statutory protections for such conduct may be minimal. Where extant, their procedural requirements must be complied w/.
iii. Notes on and Expansion of Analysis
1. Terms of employment contract may influence analysis. It’s possible that terms of contract could provide protection against firing based on advice.
2. As a policy matter, rules and regulations will maximize the ability of the client to retain and dismiss legal counsel.
3. Notice that there might be a conflict of duty.
a. On the one hand, an attorney has a duty not to aid in illegal action. On the other, an attorney has an obligation to provide legal advice to their client.
i. This can be especially tricky in the in-house counsel context. The client may not be aware that their conduct is outside the bounds of the law.
4. Notice that even if an attorney discharges their duties under 8.3 (turning in other attorneys), the employer may still be within their rights to discharge the whistleblower attorney.
a. Though there can be thorny obstruction of justice and conspiracy questions.
5. Notice that there is not a general duty to turn in non-attorneys engaged in illegal conduct. Whether an attorney has an obligation in this regard depends on whether the attorney’s actions further the crime.
