Legal Profession, Spring 2008, Cooper
Used in conjunction with Traversing the Ethical Minefield; Martyn and Fox
· What is this course about?
o Rules governing legal profession?
§ ABA Model Rules of Legal Profession
o What must you do to avoid discipline or malpractice?
o What should you do to be a good lawyer?
o Relationship between lawyer’s morals/ethics and client’s morals/ethics
WHAT IS THE ROLE OF THE LAWYER
· Freedman-Smith/Instrumental View
o AKA the Hired Gun
§ Zealous representation is the key
o Focus on the client’s rights and goals
o The Client’s values dominate the relationship
o Deontological philosophy; duty to and rights of client are paramount
o Law is a malleable means to pursue the client’s desires
· Rhode/Directive view
o AKA Traditional
o Focus on the law and the legal system, professional rights
o Lawyer’s values dominate the relationship
o Utilitarian philosophy; greatest results from expert legal advice
o Law is a means to promote social stability and order
· Collaborative View
o AKA Wise Counselor
§ Mid-ground view
o Focus on client’s interests within the bounds of law
o Value joint moral accountability
o Respect for clients, concern for outcome as well as professional relationship
o Laws are moral norms that apply to human behavior
JUDICIAL/PROFESSIONAL REGULATION OF LAWYERS
· Bar Admission
o Why important?
§ Special powers of lawyers
§ Ability to initiate the legal process on behalf of others
· Want to limit this ability
· Moral Character
o Why care?
§ Need for professionalism
§ See in re Converse
o How do Bars judge character?
§ Ask applicant-self disclosure
§ Ask law school
§ Check public records
o One mishap is not equal to multiple
§ Varies; depends on severity of mishap
§ Criminal activity gets higher scrutiny than non-criminal mishaps
o Criticisms of use
§ Vague, indeterminate
§ Rigorous application to applicants when compared to those admitted
· Once in the club, hard to get kicked out
§ Historical context
· Professional Discipline
o Applicable Rules
§ 5.1, 5.2, 8.3, 8.4, 8,5
o Big ones
§ 8.3: Reporting misconduct
· Substantial question
§ 8.4: Misconduct
· Must reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects
o See the Elliot Spitzer saga: Will he be disbarred?
· See infra
o What is knowledge?
§ See Attorney U v. Mississippi Bar
· What triggers Discipline
o P 52: Florida triggers
· Mitigation of discipline
§ Must be a causal connection to the illness for mitigation
§ R’ble accommodations can be made
§ See Busch case (ADD case)
· Whom to Represent?
o You have a choice on whom to represent
§ See r. 1.2(b) and (c)
§ Correlate with 6.2(c)
· Does a relationship exist?
o Was there a request for services?
o Did the lawyer provide the services?
o Was there consideration for the services?
§ No of the above are dispositive; look at the particular facts of the situation
o How to make sure no relationship exists
§ Disclaim at beginning
§ Send non-engagement letter
· Malpractice Claims
o Basic tort law applies
§ Duty-created if relationship created
§ Breach-did lawyer act as r’ble lawyer would in same or similar situation
§ Causation-‘but for’ lawyer’s conduct, would the client have been in better situation; may have to prove would have one; or in the case of settlement or plea, would have taken
§ Damages-look at facts of case; must show what you would have won but for the breach
o Majority of courts use the Rules as evidence of breach, but not as substantive fact of breach
§ Minority say the rules have no bearing on the duty or bre
ting to representation of a client unless the client gives informed consent, the disclosures are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
· Covers information that relates to the representation; does not have to come from the client. Would you know that info “but for” your representation?
· “Impliedly Authorized”—stipulated facts that must be revealed in complaint of defense, also probably includes communication b/w attorneys in firm.
§ A lawyer may reveal such information to the extent the lawyer reasonably believes necessary (exceptions):
· To prevent reasonably certain death or substantial bodily harm;
· To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used the lawyer’s services.
· To mitigate, or rectify substantial injury to the financial interests or property of another and that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyers services.
· To secure legal advice about the lawyers’ compliance with these Rules
· To establish a claim or defense on behalf of the lawyer against the client. Or
· To comply with other law or court order.
· All the above are permissive disclosures
§ See Revised Comment 15 and 16: A lawyer must take reasonable precautions to prevent inadvertent or unauthorized disclosures by the lawyer or other persons (i.e. associates, paralegals, or secretaries)
o See Hawkins: duty to foreseeable victims who have no knowledge
No duty to warn in Hawkins b/c victims knew