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Professional Responsibility
University of Mississippi School of Law
Cooper, Benjamin P.

Professional Responsibility

I. LAWYERS, ROLE, AND LAW

o The standard ethical justifications for the advocate’s role rest on two major premises:
1. An adversarial clash between opposing advocates is the best way of discovering truth.
2. That morally neutral partisanship is the most effective means of protecting human freedom and dignity.

o 2 Views of the Client-Lawyer Relationship
1. Dominant or adversary ethic- emphasizes that lawyers have fiduciary duties to represent clients zealously, motivated by and focused on the client’s values and goals.
2. Public interest ethic- would require lawyers to be subject to personal moral responsibility for the results of their actions.

o Lawyers as Instruments
· Instrumental lawyers tend to focus on providing individual client representation and adversarial advocacy.
· Rightly recognize fiduciary duties of control over the goals of the representation, communication, competence, confidentiality, and conflict of interest resolution to clients.
· See only one limit to client advocacy: the bounds of the law and the legal system itself
· Tend to view the social fabric as relatively strong, capable of withstanding most challenges to the existing limits of the law of other majoritarian interests.

o Lawyers as Directors
· Focus on their roles as officers of the legal system and members of a profession.
· Nod to basic fiduciary duties, but are apt to regard themselves as legal experts capable of determining how to handle the matter with little client consultation.
· May envision the legal system as a means to promote social order and stability, and the law as the categorization of principles, rules, and procedure that shape client expectations.
§ May see law as necessary to preserve a relatively thin social fabric that easily could unravel without constant tending by lawyers.

o Lawyers as Collaborators
· Heeds both fiduciary duty and the limits of the law but steers clear of the instrumental and directive extremes
· Create enough professional distance to offer objective advice, but foster relationships that enables the client to articulate the ends and means of the representation
· View law as deeply embedded with moral norms that address some of the most significant issues in human existence.
· Seek to act as translators of the moral norms of the law to their clients as well as translators of their client’s moral interests back to the legal system
· Believe that they assume joint moral accountability with their clients for representation.
· Kind of lawyer you should be.

II. JUDICIAL AND PROFESSIONAL REGULATION OF LAWYERS
a. Bar Admission (8.1, 8.4)
o In re Application of Converse (24)
· Courts will not tolerate conduct by those applying for admission to the bar that would not be tolerated were that person already an attorney
· Attorneys and bar applicants must exhibit requisite restraint in dealing with others, civility, good manners, and common courtesy
· Abusive , disruptive, hostile, intemperate, intimidating, irresponsible, threatening, or turbulent behavior is a proper basis for the denial of admission to the bar
b. Professional Discipline (1.6, 3.8, 5.1, 8.3, 8.4)
o Professionals
(a) Profess a body of knowledge
(b) Provide a valuable social service to someone else
(c)

es a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authorities.
· Comment to Preamble
§ Every lawyer is responsible for observance of the Model Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
o Thresholds for Reporting
· Two thresholds must be reached before the lawyer’s obligation arises:
1. The lawyer must know of the violation,
2. And the misconduct must raise a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
· The term “know” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
· “Knowledge is determined by an objective standard not tied to the subjective beliefs of the lawyer in question. 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.
· The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
o Duty of Confidentiality