Legal Profession – Outline
Professor Cooper – Spring 2009
I) Lawyers, Roles, and Law
A) Freedman-Smith/Instrumental View
i) AKA the Hired Gun – Zealous representation is the key
ii) Focus on the client’s rights and goals
iii) The Client’s values dominate the relationship
iv) Deontological philosophy; duty to and rights of client are paramount
v) Law is a malleable means to pursue the client’s desires
B) Rhode/Directive view
i) AKA Traditional
ii) Focus on the law and the legal system, professional rights
iii) Lawyer’s values dominate the relationship
iv) Utilitarian philosophy; greatest results from expert legal advices – The zealous advocacy model is based in the assumption that the lawyers are equally skilled but in reality this is not true. One side often has a better lawyer than the other.
v) Law is a means to promote social stability and order
C) Collaborative View
i) AKA Wise Counselor -Mid-ground view
ii) Focus on client’s interests within the bounds of law
iii) Value joint moral accountability
iv) Respect for clients, concern for outcome as well as professional relationship
v) Laws are moral norms that apply to human behavior
II) Judicial and Professional Regulation of Lawyers
A) Bar Admissions
i) Inherent Power of the Courts
(a) Attorneys are a self governing profession and the courts are the ones that over see lawyers
ii) Why regulate bar membership?
(a) We have an interest in limiting those who can be lawyers (less lawyers means more money fewer lawyers)
(b) Lawyers have a special power, to file claims on behalf of someone else – filing a complaint can cause disturbances for the defendant (D has to answer, hire lawyer, comply with discovery, etc.)
iii) Bar Admission (typical criteria)
(c) Bar Exam (and MPRE)
(e) Good Moral Character
iv) Bar Admission cannot be contingent upon citizenship/residency requirements (i.e. must be a citizen/resident of Mississippi to be a member of the Mississippi bar, this is not allowed)
v) Good Moral Character
(a) We want lawyers who are not going to be deceitful and file bogus claims
(b) We want lawyers to be able to act in accordance with the law
(c) To be responsible and to be able to meet deadlines
(d) We want lawyers to act in a professional manner
vi) How do we test good moral character?
(a) Application to bar will ask you if you have a criminal record
(b) Application will ask you about your driving record and the existence of outstanding tickets
(c) “good moral character” requirement is vague and has been used as a means to keep out certain people (i.e. minorities, women, etc.)
vii)In re Application of Converse (Neb. 1999) – P denied admission to bar for various reasons, including posting nude photos in library carrel, creating an obscene T-shirt about dean, etc…
(a) Although First Amendment rights at issue, bar’s interest trumps P’s First Amendment claims
(b) “(T)he threshold question we must answer is whether conduct arguably protected by the First Amendment can be considered by the Commission during an investigation into an applicant’s moral character and fitness to practice law. We answer this question in the affirmative.”
Rule 8.3: Reporting Professional Misconduct
a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a
substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.\
c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
a) violate or attempt to violate a rule, knowingly assist or induce another to do so, or do so through the acts of another;
b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects;
c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
d) engage in conduct that is prejudicial to the administration of justice;
e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
f) knowingly assist a judge or judicial official in conduct that is a violation of applicable rules of judicial conduct or other law.
i) Standard for Knowledge: 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, and that conduct, if it did occur, raised substantial question as to purported offender’s honesty, trustworthiness or fitness to practice law in other respects.
LAWYERS AND CLIENTS: FIDUCIARY DUTIES
I) Control and Communication
A) Beginning the Client-Lawyer Relationship
Rule 1.18: Duties to Prospective Clients
a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
d) When the lawyer has received disqualifying information as defined in paragraph (c), representat
er may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Objectivesof representation, including expenses to be incurred and effect on third persons who might be adversely affected as well as more specifically:
In civil cases, whether to accept offer of settlement.
In criminal cases, whether to plead guilty, waive jury trial, or take the stand
MR. 1.2(a) and cmt. 1
Meansby which the objectives of representation are to be pursued, including technical legal and tactical issues.
MR. 1.2(a) and cmt. 2
Lawyers must refuse to counsel or assist a client in committing a criminal or fraudulent act.
Rule 1.4: Communication
a) A lawyer shall:
1. Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
2. Reasonably consult with their client about the means by which the client’s objectives are to be accomplished
3. Keep the client reasonably informed about the status of the matter;
4. Promptly comply with reasonable requests for information; and
5. Consult with the client about any relevant limitation on the lawyer’s conduct with the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law
b) A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.
i) A lawyer does not need to tell the client everything, (like if a deposition has been rescheduled from Tuesday to Wednesday). However, anything that the client would need to know in order to make an informed decision, should be communicated by an attorney.
ii) Relation of Rule 1.4 to Rule 1.2?