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Legal Profession
University of Mississippi School of Law
Roy, Lisa Shaw

Legal Professional Outline – Roy 2004
Intro
A. Professionalism Crisis: There is a push for better ethics.
B. Solution for lack of Professionalism, Rules:
            • ABA Model Rules (1983), Recently amended in Feb. 2002
            • Model Code (do not have to know details of it)
            • Restatement of Law Governing Lawyers (not responsible for it)
            • U.S. Constitution
            • State and Federal Rules of Civil Procedure
            • Common Law Legal Malpractice Doctrines
            *MS has adopted the ABA Model Rules
            *Model Rules are the minimum standards
A. Professionalism:
• The first letter, the first phone call, first court appearance will carry with you as a professional
B. Solution for lack of Professionalism, Rules:
            • ABA Model Rules (1983), Recently amended in Feb. 2002
            • Model Code (do not have to know details of it)
            • Restatement of Law Governing Lawyers (not responsible for it)
            • U.S. Constitution
            • State and Federal Rules of Civil Procedure
            • Common Law Legal Malpractice Doctrines
            *MS has adopted the ABA Model Rules
            *Model Rules are the minimum standards
VIDEO
Types of Attorneys: L should follow ethical rules . . . not try to get around them.
Instrument: “Hired gun.” Client controls. L will do anything for him. May ignore ethics to do what client wants.
Director: L thinks he knows best. Tendency to take over and view first duty to the “law.”
Collaborator: BEST; Mixes other two. Sensitive to the client, but not totally “client driven.” Works in harmony with client to reach ethical and desirable end. 
*Autonomy: Who controls decision, L or client? *Adversarial system may fall with dumb L.
 
Ch. 2: Judicial and professional regulation of Attys.
A.    Admission to the Bar
There are no hard and fast rules, but the Ct generally looks at a person’s behavior and the way his pattern of behavior.
Rule: Can’t stop someone for what they believe. But conduct “harmful to others” can keep someone from being admitted. I.e.: someone in Klan® ok to believe whites are superior, but you can’t act in a way that harms others.
 
Rule: You may have a 1st Am right to do or say something, but your actions can be counted against you in the bar application process. (Converse).
 
B.     Discipline (p.34 of Kimble)
**Generally, a pattern of conduct is more likely to be punished than an isolated event.
**Can be punished for: Breach of confidence/loyalty, Frivolous suits, incompetence, failure to communicate to client, fraud (bad check), stealing (taking $ from trust – even if client doesn’t suffer loss), unrelated personal conduct of atty. (break law).  
 
1.      Purposes of Discipline –
                                                                          i.      protect public,      
                                                                        ii.      integrity of legal system,
                                                                      iii.      further administration of justice,
                                                                      iv.      deter further conduct,
                                                                        v.      rehabilitate the lawyer,
                                                                      vi.      educate the lawyer and public.
** Punishment IS NOT A PURPOSE
 
2.      Different Sanctions that can be Imposed (Most → Least Harsh )
                                                                          i.      Disbarment
                                                                        ii.      Suspension
                                                                      iii.      Censure (type of public reprimand)
                                                                      iv.      Warning, Caution, Reprimand
 
Rule 8.3: “Squeal Rule”® Reporting Professional Misconduct
(a) Lawyer who knows of a violation of Rules of PC that raises a substantial question as to the atty.’s trustworthiness, honesty, or fitness as a lawyer in other respect . . . must inform officials.
            **Know: Legal def’n of knowledge. Doesn’t require absolute certainty.
(c) Doesn’t require disclosure of information otherwise protected by Rule 1.6 (confidentiality).
Rule 1.6(b)(2)-(3): Must prevent client from committing crime/fraud if it is reasonably certain to result in substantial injury.
 
            Analysis of Rule 8.3:             1) Obligation to report? (a)
–          Do you “know” of violation?
–          Does it raise “Subst Q” as to trustworthiness, etc.?
                                                2) Any exception to reporting? (b)
Problem 2-2: Represent in tax audit, client tells you he’s been cheating. Must rat him out Rule1.6. 
Problem 2-3: Former atty. stole from client. Apply 8.3®1) knows, 2) questions honesty, etc.
            *Must tell client and get ok to reveal b/c it is confidential.
Problem 2-4: Find out another atty. in the firm has stolen from trust, but he gave money back and claims he is better b/c he’s on bi-polar medicine. 
            *Since it is your firm, it isn’t confidential. Don’t have to get client ok to turn in.
            *Is there a reporting obligation? Rules 5.1 and 5.2 are supervisory duties®don’t report, it is as if you ratified it. If you know of violation, you must report it. Also, under Rule 8.3.
            *If you fire him, must you still report? YES, 8.3. 
 
Malpractice: Suit in negligence for failure to carry out responsibilities (case w/in a case)
Proof: lawyer negligent, negligence caused loss in underlying litigation
 
Difference b/t Malpractice and Discipline
Malpractice                                                                 Discipline
– one act is enough                                                      – usually a pattern of neglect (not informing)
– harm to client is required                                          – no harm to client is required
§ Don’t have to show any damages.
 
Ch. 4: Competence and Communication
Togstad: A lawyer/client relationship was found where the lawyer told the woman she had no med mal case, but he would get back to her. Client did nothing, SOL ran.
*There must be relationship for there to be malpractice. Giving advice may create a lawyer/client relationship. “No Case” – advice, made relationship.
*What did lawyer do wrong? He never followed up, called, or said he wouldn’t take suit.             He also should have told her about SOL. 
 
How to say “no thanks”: Be careful when giving advice . . . it may make her a client.
1)      Send a call and letter saying you don’t want to represent them AND why
2)      Advise client to see another lawyer. Explain c

tright lied – never did search. Seems more like fraud, went w/ negli. (INS)
·         Can client equivalent (bank) sue for malpractice? YES; Privity req’t is eroded b/c it was obvious that someone would use and rely on the letter. Negligence/fraud in letter.
·         Foreseeable that party receiving opinion letter could be hurt by lie/negligence.
 
Negligent Misrepresentation: Lawyer, as speaker, intends to supply information to a small group of people with the intention of the group to rely on the guidance.
            EX: You know something is not true, still represent it, can be sued for fraud/negl.
 
Rule 1.1: Lawyer shall provide competent representation of client. Requires legal knowledge, skill, and preparation necessary for the representation.
 
Problem 4-6: Martyn forgot to check statute when writing opinion letter, but he still said all applicable law was applied with. (NOTE: forgot to check, diff’t than case (lied)).
Ask:    1) Who is suing? Client/client equivalent (foreseeable class)
2) Here clearly negligent (forgot), didn’t lie.
3) If someone relied, person was foreseeable, can probably win in negl. Misrep.
                        *Subject to Discipline? YES, violated Rule 1.1 (RPP would have checked law)
                        *Discipline probably won’t be applied unless there is a pattern, still “subj to disc”
 
E. Ineffective Assistance of Counsel: 
Roe: Attorney didn’t file appeal in criminal matter (objective). Roe could prove ineffective counsel if he can show he wanted to appeal or it wasn’t frivolous.
Std for Ineffective Assistance:
1)      Lawyer’s actions fell below objective standard of reasonableness (stds for discipline experts, ABA opinions letters, Model Rules),
2)      Lawyer’s deficient performance caused prejudice to the client.
a.       “But for” counsel’s error, the results would have been different (if client never got information, look to see if prejudiced by worse sentence than bargain)
 
Problem 4-6: Fail to Perform criminal client about plea offer. Is Fox in trouble?
*Discipline: Would a RP lawyer have told? YES. Plea is objective, must inform client and let him decide. (Rule 1.2) And Failed to inform client (Rule 1.4). A reasonable competent lawyer would have informed client and filed valid appeal. (Rule 1.1).
*Ineffective Assistance:  1) Below reasonableness std? YES
2) Prejudice and causation? “But for” – no; can’t say for certain b/c never informed; therefore, use another std. Did client suffer prejudice due to a tougher sentence?
 
Malpractice for Criminal Defendants (Tougher std than civil – just prove negligence)
Majority Rule: 1) Win ineffective assistance claim AND
                         2) Conviction must be reversed – D