Professional Responsibility Outline

Professional Responsibility Summer 2009
I.                   Chapter 1: Lawyers, Role, and Law
a.      Lawyers and Role
                                                  i.      Model Rules of Professional Conduct (MRPC) Preamble & Scope
1.      A lawyer is to be an ethical person both professionally and within society as a whole.  These rules are to help a lawyer act in an ethical manner.
2.      The test of the rules it authoritative and not the comments, though the latter can be used to help understand the rules and to guide attorneys.
                                                ii.      Restatement of the Law Governing Lawyers (RLGL) §1
1.      A lawyer is subject to rules and discipline upon admission to the bar.
2.      The highest courts have the authority to regulate the practice of law and that power is typically exclusive of other branches.
                                              iii.      Lawyers can take on various roles, each having various degrees of control and direction, but it is important to try and adequately inform a client about the law and even give advice, but then follow that client’s wishes.
1.      Goal is to maximize client’s autonomy by counseling candidly and fully and assisting them carry out their lawful decisions
                                              iv.      Lawyers as: instrument, director, collaborator
b.      Lawyers and Law
                                                  i.      Law governing lawyers includes two vast bodies of law: the lawyer codes and general law applied to lawyers
                                                ii.      Lawyers are subject to local professional rules as well as substantive law
                                              iii.      Lawyers can be punished by discipline, lawsuits, fee forfeiture, judicial disqualification, sanctions, and even criminal law
1.      If a question asks only about professional discipline, then the answer should be found in a lawyer code.
2.      If question asks more generally whether a lawyer “may” or “should” take a specific action, should refer both to relevant lawyer code sections and to the general law applied to lawyers – including the cases and other materials such as RLGL.
II.                Chapter 2: Judicial and Professional Regulation of Lawyers
a.      Bar Admission
                                                  i.      MRPC 8.1 –Bar Admission and Disciplinary Matters
1.      In application or discipline, a lawyer shall not make a false statement of material fact, fail to disclose a necessary fact, or fail to respond to a lawful demand for information outside that protected by Rule 1.6
                                                ii.      In re Application of Converse
1.      Crazy USD student who was just a combative/bad person all around
2.      A state is allowed to determine who is fit to join the bar and establish requirements.
3.      An applicant for bar admission bears the burden of proof of ‘good moral character’
b.      Professional Discipline
                                                  i.      MRPC 1.6 – Confidentiality of Information
1.      A lawyer shall not reveal information relating to representation unless by informed consent, allowed by implication, or under an exception.
2.      A law may reveal information to extent reasonably believed necessary:
a.       To prevent reasonably certain death or substantial bodily harm
b.      To prevent future crime or fraud reasonably certain to result in substantial injury to another’s property or financial interests and in of which the client has used or is using lawyer’s services
c.       To prevent, mitigate or rectify substantial injury to another’s property or financial interests reasonably certain to result or has resulted from client’s commission of fraud/crime of which client used lawyer’s services
d.      To secure legal advice about lawyer’s compliance w/Rules
e.       To establish claim or defense on behalf of lawyer in controversy btw lawyer and client, defense to criminal charge or civil claim against lawyer based upon conduct in which client was involved, or to respond to allegations in any proceeding concerning lawyer’s representation of client
f.       To comply with other law or court order
                                                ii.      MRPC 3.8 – Special Responsibilities of a Prosecutor
1.      A prosecutor shall not prosecute charge knowing it’s not supported by probable cause, shall make reasonable efforts to assure accused is advised of right to counsel and given reasonable opportunity to do so, make timely disclosure of all evidence/information known to negate guilt, refrain from making extrajudicial comments.
2.      If prosecutor knows of new, credible and material evidence creating reasonable likelihood a convicted defendant didn’t commit offense, prosecutor shall promptly disclose evidence and undertake or make reasonable efforts to cause an investigation.
                                              iii.      MRPC 5.1 – Responsibilities of Partners, Managers, & Supervisory Lawyers
1.      Managers need to effect measures so that lawyers comply with rules
2.      A lawyer shall be responsible for another’s violation if the lawyer orders, ratifies (with knowledge of specific conduct), or a managerial lawyer knows of the problem at a time when it can be avoided or mitigated and does not take reasonable remedial action.
                                              iv.      MRPC 8.3 – Reporting Professional Misconduct
1.      If a lawyer knows that another lawyer has committed a violation that raises a question of honesty, trustworthiness, or fitness, he shall inform the proper authority – same goes for judges.
2.      Does not require disclosure of information otherwise protected by Rule 1.6 or information gained through approved assistance program
                                                v.      MRPC 8.4 – Misconduct
1.      It is misconduct for a lawyer to violate a rule, assist another to do so, do so through the acts of another, commit a criminal act which shows dishonesty, untrustworthiness, or unfitness, engage in conduct that is prejudicial to administration of justice, state an improper influence, or knowingly assist a judge or officer to violate rules of conduct.
                                              vi.      RLGL §5 – Professional Discipline
1.      A lawyer is subject to discipline for violating any provision of lawyer code, attempting to commit a violation, knowingly assist or induce another to do so, or knowingly do so through acts of another.
2.      Lawyer who knows of another lawyer’s violation raising substantial question of lawyer’s honesty, trustworthiness, or fitness as lawyer must report information to appropriate authorities.
                                            vii.      Two thresholds must be reached before the lawyer’s obligation to report misconduct arises:
1.      The lawyer must “know” of the violation
a.       Most cases and ethics opinions conclude that “knowledge” is determined by an objective standard
b.      The supporting evidence must be such that a reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred
2.      The misconduct must raise a “substantial question” as to the lawyer’s honesty, trustworthiness or fitness as a lawyer.
a.       “Substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
                                          viii.      If a report of misconduct would reveal information relating to the representation of a client, a lawyer must obtain the client’s informed consent before making such a report.
1.      Rule 1.6 trumps Rule 8.3
2.      The protection afforded by Rule 1.6 is not forfeited even when the information is available from other sources or publicly filed
                                              ix.      State ex rel. Oklahoma Bar Association v. Busch
1.      Lawyer with ADD who violated several rules and hurt clients
2.      Despite any mitigating factors, the Bar has the authority to discipline lawyers for violations of the rules
                                                x.      Aggravating factors: past discipline, dishonest or selfish motive, pattern of conduct, obstruction, refusal to acknowledge, vulnerability of victim, substantial experience, and illegality.
                                              xi.      Mitigating factors: personal or emotional problems, disability, ab