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Legal Profession
University of Mississippi School of Law
Cooper, Benjamin P.

 
Legal Profession
Professor Cooper
Fall 2015
 
 
Introduction to Legal Profession
[08/24/2015] I.            What is this Class about Anyway?—
A.     The law governing lawyers NOT “legal ethics”
                                                  i.      What must/may/should you do?
1.      There is law to answer this!
                                                ii.      Sources of Law?
1.      Model Rules of Professional Conduct
a.       Established by the American Bar Association (ABA)
2.      General Civil/Criminal Law
a.       How does contract law apply to lawyers? Etc.
3.      Cases/Ethics Opinions
4.      Restatement of the law governing lawyers
a.       Capture rules, etc.
b.      Restate the law
                                              iii.      Consequences of Rule Violation/Violations of the Law?
1.      Bar discipline and/or
2.      Civil or Criminal liability and/or
3.      Other judicial remedies (See RLGL, § 06)
II.            Conduction of the Course—
A.     Read Ahead of Time!!!
B.     Problem-based approach from the problems in the book
                                                  i.      Focus on (a) Model Rules and (b) Restatement
C.     Card System
                                                  i.      Adds up to 10% of your raw exam score
                                                ii.      Each card counts for 5 points
                                              iii.      Purchase index cards and write your name on them
                                              iv.      Leave them on the podium if you are prepared to participate that day
D.     Final Examination
                                                  i.      Takes place on December 9th from 9:00 am – 12:00 pm
                                                ii.      Broken into two portions: 2/3 essay portion and 1/3 multiple choice
1.      2/3: open book and 1/3 closed book
a.       Access to PowerPoint slides, notes, textbook, rules
E.      MPRE
                                                  i.      This course will pertain to similar coverage as the MPRE (link on TWEN site)
F.      TWEN PAGE NOW AVAILABLE
G.     Supplement Material
                                                  i.      Examples and Explanations by Brad Wendel
                                                ii.      The Law Governing Lawyers by Martyn, Fox, and Wendel
 
Chapter I: Lawyers, Role, and Law
(Pgs. 3-17)
[08.26.15] I.            Lawyers and Role—
A.     “A lawyer, as a member of the legal profession, is a representative of clients, an officers of the legal system and a public citizen having special responsibility for the quality of justice.” – Model Rules Preamble, para. 1
 
 
II.            Problems—
A.     Problem 1-1àShould Martyn & Fox file a claim on behalf of a client after the statute of limitations has expired? What if we are fairly sure the opposing party will not be represented?
                                                  i.      Yes, because:
1.      Do it for the client
2.      Other side unrepresented
                                                ii.      No, because:
1.      Time-barred
2.      Waste of time
a.       Lawyer gets to decide which cases to take
3.      Other side unrepresented
a.       If the other side is represented they will know that the issue is time barred.
b.      In the end it is the client’s decision to bring the case up against someone who is unrepresented. (provided that it is not illegal)
                                                                                                                          i.      Lawyer does an injustice when they take moral decisions for themselves as opposed to letting the client decide such an issue.
4.      Frivolous (Federal Rule of Civil Procedure, Rule 11)
a.       If this (rule 11) is met then you cannot file it because it is illegal.
                                                                                                                          i.      Not barred because it is an affirmative defense which the defendant has to raise and if they do not then it is waived.
5.      Make judge mad
6.      Lawyer’s reputation tarnished
                                              iii.      The client decides whether to file or not as long as you provide proper legal advice covering every piece of information that they need to know.
                                              iv.      Is it moral to file/not to file a time barred claim?
1.      Depends on the facts of the case
2.      Moral issue in favor of bringing it:
a.       Someone committed a wrongful act.
                                                v.      Freedman & Smith (“Adversary Ethic”):
1.      Lawyers should be a zealous advocate for their client.
2.      Both parties should be represented by lawyers who are giving their all to represent their clients.
3.      Lawyers have a democracy serving role with the responsibility of protecting citizens.
                                              vi.      Professor Rhode provides a critic of Freedman and Smith’s view:
1.      Lawyers should take into account what the ultimate impact is, what the ends are, what will come out of this.
2.      This is what she believes is wrong with Freedman & Smith’s approach.
3.      Believes that F & S’s belief does not exist because we do not live in a perfect world. Sometimes, such as in our problem, the parties are unequal. One side may have more resources than the other.
a.       Adversary system does not always produce good results.
4.      System of zealousy has definitely served the lawyers interest.
 
***In a civil context, lawyers are helping their clients market cigarettes to children, skirt the law, skirt financial regulations, etc. (Where is the human dignity and freedom here?)***
 
B.     Problem 1-2à During negotiations, a lawyer for the buyer agrees on behalf of his client to pay an extra $50,000 because, the lawyer observes, “the land is zoned for ten lots.” Martyn & Fox, representing the seller, knows that the lawyer is mistaken. Should Martyn & Fox close the deal without correcting the mistake?
                                                  i.      What are the legal implications of taking advantage of the mistake of opposing counsel?
1.      Client can sue their attorney for incompetence, legal malpractice, or file a claim with the bar for discipline, but typically there is little to no consequence for an attorney taking advantage of the other side.
a.       Again, it is up to the client to decide to take advantage of said mistake.
                                                ii.      To blame for this is the inexperienced lawyer but to blame for his inexperience is the law school from which he graduated.
III.            Mistakes by Other Side (summary)—
A.     Freedman and Smith (and most practicing lawyers):
                                                  i.      No duty to correct
                                                ii.      Zealous advocacy even in non-litigation setting
                                              iii.      May violate own duty to client if do correct BUT is taking advantage of mistake really a good idea?
                                              iv.      Consult (you may be surprised!)
B.     Rhode Critique (is this justice?):
                                                  i.      But any time a lawyer starts worrying about whether a particular outcome is just, it impacts their ability to be a zealous advocate.
C.     Are Da(s) different?
                                                  i.      Yes, prosecutors should have a different r

       It is professional misconduct for a lawyer to:
                                                                                                                          i.      (a) Violate or attempt to violate [a Rule], knowingly assist or induce another to do so, or do so through the acts of another;
                                                                                                                        ii.      (b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; {not tied to the practice of law as far as the act itself goes}
                                                                                                                      iii.      (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
                                                                                                                      iv.      (d) Engage in conduct that is prejudicial to the administration of justice;
3.      Rule 5.1àResponsibility of partners, Managers, and Supervisory Lawyers
a.       (a) A partner in a law firm… shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that all lawyers in the firm conform to the [RPC].
b.      (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the [RPC].
c.       (c) A lawyer shall be responsible for another lawyer’s violation of the [RPC] if:
                                                                                                                          i.      The lawyer orders, or with knowledge of the specific conduct
C.     Problem 2-3à Fox told Associate, who was counsel of record in a matter, not to appear in court because he wanted to “take care of the matter,” even though Fox was not admitted to practice in the state in question. When the judge questioned Associate’s absence, Fox replied that Associate has a medical emergency that prevented her appearance. The next day, Fox told Associate: “The judge wants to verify your absence. Just send a letter to the court backing me up— nobody has to know.”
1.      Rule 5.2àResponsibilities of a Subordinate Lawyer
a.       (a) A lawyer is bound by the [RPC] notwithstanding that the lawyer acted at the direction of another person.
b.      (b) A subordinate lawyer does not violate the [RPC] if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable professional duty.
D.     Problem 2-4à Client hires Martyn & Fox to get back her $25,000 retainer from her former lawyer. Client explains: “That bum charged me $10,000 for incompetent work and won’t refund the rest of my $15,000.” Martyn writes a demand letter to client’s former lawyer that includes the following:
“My hope is to avoid an ethics investigation for you. If you do not return my client’s $25,000 within 14 days, it is likely my client will file a disciplinary complaint.”
{Consider: Model Rules 5.1, 5.2, 8.3, 8.4 RLGL § 5}