Legal Profession Outline Professor Cooper Spring 2008
Chapter 1: Lawyers, Role and Law
(1) What is the role of the lawyer? (Roles of lawyer sometimes compatible; sometimes in conflict)
See handout: L’s roles (instrumental, collaborative and directive)
Debate btw Professors Freedman and Smith v. Professor Rhode
Instrumental lawyer: pretty much F&S (although they may not go quite as far as presented by the book)
Directive lawyer: pretty much Rhode
Collaborative lawyer: happy medium- suggested course of action for us by casebook authors.
(2) What is the relationship btw lawyer’s goals and lawyer’s morals?
(3) What is the relationship btw client’s goals and lawyers morals and goals?
ABA approved Model Rules of Professional Conduct in 1983 b/c perceived lack of professionalism/ethical conduct
· Model rules are the minimum standards
· Revisions adopted in Feb 2002 (most jurisdictions adopting some version of these changes)
Other sources of Rules:
· Model Code & Restatement LGL (do not have to know details of it)
· U.S. Constitution
· State and Federal Rules of Civil Procedure
· Common Law Legal Malpractice Doctrines
· MS has adopted the ABA Model Rules
· General civil and criminal law (agency law, tort law, K law, statutory law, etc) applies to everyone (attorneys)
· Case law
· Ethics opinions (State Bars and American Bar Association): attorneys can (anonymously) send inquiry to state bar and describe situation.
o If you follow what they say, it should insulate you from discipline measures
Professors Freedman and Smith
NOT lawyer role to assess whether action is right thing to do, it is the client’s role; it would be immoral for lawyer to take moral decision out of the client’s hands.
Moral judgments should be client driven.
Need to protect human freedom, autonomy, dignity
Key issue: Individual (client) autonomy- critical societal value; lawyer’s job to maximize client autonomy
Principal role is zealously representation of client
Communication with C is huge part of effective representation.
L’s job to educate client in order to make a decision.
L as communicator has a whole lot of power- what L says and how L frames choices could be determinative.
Judicial system based on adversarial system: results in discovering truth- best way to get to truth => justice
Only limits on attorney representation is whether a decision is lawful (legal limits)
Second limit: attorneys can serve as gatekeepers and NOT take on all representation
F&S- have problem w/ saying that L should do what is moral- b/c there is no one right answer morally.
Professor Deborah Rhode
Concepts of justice, morality and social context are important and should not be left all to the client.
L bears some responsibility for moral judgments
L needs to take into account his own personal moral judgment about the actions.
Clear contrast to F&S’s view
Major attack on adversary system:
Not best way to get to truth b/c sides are not evenly matched in terms of resources => not likely to get a just outcome.
Ex: solo practitioner v. huge defense firm
Outcome distorted b/c of the imbalance on resources (L’s skill, resources, their incentives, etc.)
Model of zealous representation/adversarial system should be limited to criminal cases
Draws a distinction btw criminal and civil cases.
Criminal cases- concept of adversary system is very imp b/c the state has a lot of power
Ex: Investigators, power to put you in jail, or to death => therefore zealous representation model works in this setting.
Concerns about govt power, abuse of power, greater community values at stake in criminal cases (i.e. presumption of innocence, constitutional rights, society’s interest in having fair criminal procedures)
Civil cases- same model of zealous representation doesn’t work in civil law b/c litigation btw corporations is hardly like criminal case.
Diff values at stake (not same community values)- fair justice system is needed but not same as state against individual.
L MUST take some responsibility for moral judgments of the client.
Clients are not entitled to L’s assistance in whatever the law permits
ex: use of asbestos, distribution of cigarettes
Extreme advocacy by L has corrosive effect for Ls, clients and the legal framework on their own moral compass. Sacrificing moral integrity of L creates spillover into the lawyer’s personal life. (p. 9)
Concern about lawyer nullifying the law
Middle ground: Ls should accept moral responsibility of their actions.
Ls have power to accept or withdraw and choose tactics of representation.
Ls must put into social context.
Lawyers job to advance justice without violating his own prohibitions.
Rules discussed in chapter 1:
Rule 1.2(d) L shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct w/ 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.
Rule 4.1: requires truthfulness in statements to others: In the course of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person; or fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Chapter 2: Judicial and professional regulation
Two main ways practice of law is regulated: bar admission and professional discipline
What type of power do attorneys have by admission to the bar?
By filing piece of paper, you can begin the entire legal process (assigns judge, sets date to hear dispute, invokes jurisdiction of the court, forces D to respond- pleading, discovery, etc.)
Rule 8.1 Bar Admission and Disciplinary Matters
Requirements for admission to bar:
Usually education requirement (usually degree from accredited law school),
Pass bar exam and usually MPRE
Oath by lawyer
Good Moral Character (focus of class)
Vague and indeterminable ideal
Criticized on basis that it is more rigorous for people applying to the bar than people already admitted to the bar
Historically, good moral character test has been used to keep women, and racial minorities out of the bar
Things not required: no citizenship requirement, no residency requirements
Some things states can do that deal with residency requirements: Ex: NJ bar- requires all lawyers (resident and non-resident) maintain local bona fide office in the state
We care about good moral character b/c system is reliant on the participants to a large degree
In re Application of Converse: P denied admission to bar for various reasons, including posting nude photos in library carrel, creating an obscene T-shirt about dean, etc…
· Although First Amendment rights at issue, bar’s interest trumps P’s First Amendment claims
· 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.
· Concerns of court regarding Converse:
o **Failed to resolve disputes within the framework of the established system
§ which is one of the main responsibilities of lawyers
o Did not engage in civilized and rational behavior
§ Took things personal, failed to act in respectable manner, personal attacks against people that he was in dispute with
· Case exhibits how Bar seeks out info about moral character of applicants:
o Dean’s comment on required form given to law school
· What other ways does Bar seek out moral character?
o Ask applicant personally in application
o Require copies of driving record
o Can ask whether membership in communist party (probably ok for modern day equivalent- al qaida)
§ Can’t reject applicant based on answer, but can require applicant answer question
Rule 8.1: Bar admission: requires honesty in answering all questions for bar admission
An applicant shall not:
(a) Knowingly make a false statement of material fact
(b) Fail to disclose a fact necessary to correct a misapprehension
Rule does not require disclosure of information protected by Rule 1.6.
Analysis State Bar will consider in evaluating conduct evincing bad moral character for bar admissions:
Number of incidents: Isolated incident v. one of many infractions?
Level of disclosure: How did bar learn about violation?
IE: did she disclose it or was she turned in by law school? Did she admit to it?
Focus of inquiry: Is the crime evidence of a lack of fitness to practice law?
Has applicant been admitted to or completed a treatment program?
Answer: depends on circumstances of incidents, does applicant have an addiction, has/is she being treat
ior Lawyer B stole client’s money; does Lawyer A squeal?
1. INQUIRY: First, tell client of problem.
a. Next, Rule 8.3 is triggered (“substantial question”), but further must look at:
b. Client confidentiality
c. Must get permission from client to reveal information
c. Lawyer A, partner, discovers Lawyer B, associate, has stolen money from trust account
1. Inquiry: Still have Rule 8.3 question
2. Also, look to Rule 5.1 (supervisory rule) and Rule 5.2
RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
a. Rule 5.1 places responsibility on supervising lawyer, who still has Rule 8.3 obligations
3. Even if associate leaves, must still report (could harm in future)
4. Preventative measures
a. Hire outside consulting firm to audit “in house” workings
b. Establish ombudsman to hear complaints, issues
3. State ex rel. Oklahoma Bar Ass’n v. Busch (Okla. 1996)
a. Court upholds suspension of lawyer, suffering from ADD, for neglect of client matters and deceit in court
b. Lawyer should have sought client’s permission before choosing not to sue doctor personally
4. NB difference in DISCIPLINE and MALPRACTICE (and overlap)
1. Lawyer acts negligently, causes loss
2. Subject to civil liability
1. Lawyer violates an ethical standard, and a pattern of conduct (even personal) may result in various punishments (supra)
5. Reporting requirement of R. 8.3 applies for lawyers to report judges
a. Lawyer who knows judge has committed a violation of the applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office SHALL inform the appropriate authority
Rule 8.5 (choice of law provision)
Lawyer subject to the rules of professional conduct/discipline where they practice or in any jurisdiction where he acts
1. Once can lead to
2. Must have harm to client /
3. Civil liability
1. Look for pattern
2. Don’t have to have harm to client (advertising; don’t return calls; miss meetings)
3. Can be personal conduct