Legal Profession – Sims – Spring 2013
A. Lawyer’s Roles
1. Lawyers as Instruments – “gun for hire”
a. Focus – clients
b. View of Law – changeable based on client’s interests
2. Lawyers as Directors – “paternalist traditional lawyer”
a. Focus – legal system and being professional
b. View of Law – orderly and stable system
3. Lawyers as Collaborators – “wise translator/friend”; best type of lawyer
a. Focus – client’s interests w/in bounds of the law (compromise b/t other 2)
b. View of Law – moral norms apply to human behavior
B. Law Governing Lawyers
1. Model rules
2. Common law, case law, etc. – create fiduciary duty b/t lawyer and client
3. Criminal law
CHAPTER 2 – REGULATION OF LAWYERS
A. Judicial Regulation
1. Courts have inherent power to license/regulate lawyers.
a. Admission to practice
b. Professional discipline
2. Power of Lawyers (why licensing is important)
a. Files complaints on behalf of clients
b. Serve/respond to discovery
c. Force parties to sit for hours in depositions
d. Lawyers give legal opinions about corporations
a. A pattern of acting in a hostile and disruptive manner can exclude an individual from the practice of law.
b. Bar applicants bear burden of proving the requisite character and fitness.
a. State legislature controls; only lawyers are regulated by judiciary.
b. Highest state courts set licensing criteria for lawyers.
B. Professional Discipline
1. Duty to Report
a. Must report another lawyer’s misconduct if it raises a substantial question as to that lawyer’s honest, trustworthiness, or fitness.
i. Reporting lawyer must “know” the violation (actual knowledge).
ii. Behavior must raise a “substantial question,” which is NOT based on amount of evidence reporting lawyer is aware of; based on seriousness.
b. If reporting would require revealing confidential client info, must obtain client’s informed consent.
i. Confidentiality trumps duty to report.
c. No Duty to Self-Report (Virginia and Louisiana)
i. There’s already a duty to report by other lawyers.
ii. 5A issues – self-incrimination
iii. Must self-report criminal convictions/decision in Virginia.
2. Duty of Confidentiality
a. Cannot reveal info relating to representation of client unless client gives informed consent.
b. Other exceptions – see rule 1.6.
a. D blamed misconduct on ADD.
b. An atty’s disability does not bar discipline, but may be a mitigating factor in determining the type of disability.
a. Sui generis (neither civil nor criminal in nature)
b. Losing license is less severe than prison, but more severe than civil damages.
c. Required Due Process Guarantees in Disciplinary Procedures
ii. Right against self-incrimination
iii. NOT double jeopardy
iv. Bench trial
v. Clear and convincing evidence
vi. Right to appeal
a. Best defense – demonstrate disciplinary counsel failed to meet burden of proof.
b. See mitigating factors below.
a. Vary from jurisdiction to jurisdiction. Burden must be met.
b. Factors to Determine Sanction
i. Duty violated
ii. Lawyer’s mental state
iii. Actual or potential injury caused
iv. Aggravating v. mitigating factors
c. Aggravating Factors
i. Past discipline, dishonesty, selfish motives, obstruction of disciplinary proceeding, refusal to acknowledge responsibility, vulnerable victim, subs
ty to agree to these limited scope representations, but only if the limitation is reasonable and client gives informed consent.
5. Pro Bono Clients and Confidentiality/Conflict Resolution
a. R. 6.3 – attys who serve on legal services organization board/projects can disregard any adverse conflicts of interest of clients, but CANNOT participate in decisions incompatible w/ their obligations to clients.
b. R. 6.4 – similar provision for lawyers who serve on boards of law reform (hotlines, help desks) – temporarily suspends some conflict of interest requirements so can provide pro bono service to clients in these programs.
CHAPTER 4 – CONTROL AND COMMUNICATION
1. The agreement b/t the lawyer and client imposes the 5 C Fiduciary Duties on the agent to assure the agent acts on client’s behalf.
A. Client’s Right to Control
1. Authority b/t Client and Lawyer
a. Clients have authority to make decisions concerning:
i. The outcome of the representation
ii. Whether to settle
iii. Whether to appeal
iv. How to plead
v. Whether to waive jury
vi. Whether to testify in criminal case
b. Lawyers have sole authority to make some decisions.
c. For all other decisions not reserved solely to either client or atty:
i. Lawyer must reasonably consult w/ client
ii. Keep client reasonably informed
iii. Promptly respond to client’s request for info
iv. Provide enough info to enable client to make informed decisions