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Professional Responsibility
University of Missouri School of Law
Trachtenberg, Ben L.

Professor: Trachtenburg

Course: Professional Responsibility

Term: Fall 14

Book: Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law

Introduction to Prof. Responsibility and Legal Ethics; Admission to Practice

I. Legal Ethics: Unethical = Violation of Code.

i. “Principles of conduct that members of the profession are expected to observe in the practice of law.”

ii. Often mirror our own moral ethics, but not always.

iii. *The rules are created by Lawyers, that’s why some are lenient on atty’s

II. MO Rule Structure

a. MO Rule 4 – Model Rules (Not always the same, but most are)

b. MO Rule 5 – Consequences for violating Rule 4

i. Office of Chief Disciplinary Counsel – Created by MO SCT to figure this out.

The Regulation of Lawyers

I. 13 Groups Regulate Lawyers

c. The American Bar Association (ABA)

i. Private nonprofit trade organization founded in 1878.

1. NO connection to the gov’t

2. NO connection to state bar associations (not superior to)

3. Has NO authority to make law.

ii. Drafts the Model Rules of Professional Conduct

1. Primary drafter of ethics codes, but the code has NO legal force unless adopted by state.

2. Most state Rules rely heavily on these

3. If lawyers have questions on how to handle situations, they can call or write the ABA

d. The American Law Institute (ALI)

i. Private organization of 3000 judges, professors, and lawyers

ii. Drafts the Restatements, summaries of the law.

1. NOT the law, but is the best available synthesis of info about the law.

2. Not always consistent with the Model Rules.

e. State and local bar associations

i. Unified Bar (MO)

1. Membership is mandatory (as opposed to a “voluntary” bar)

2. Private, nonprofit organizations, delegated the responsibility of regulation of lawyers by the highest courts.

a. Inherent power

3. What they do in the process:

a. Administer state bar exams

b. Review candidates for admission

c. Establish lawyers discipline systems

ii. Local bar associations (Typically voluntary, joined to meet people, keep up with the field, etc.)

f. The Highest State Courts

i. Adopts ethics codes and court procedural rules.

1. In MO, Supreme Court governs all relating to regulation of atty’s.

ii. Sets standards for licensing (educational and character)

iii. Supervise disciplinary agencies that investigate unethical conduct complaints

iv. Supervise administrative judicial bodies that impose Sanctions for violations of ethics code

v. Inherent Powers Doctrine – Says that the C/L gives the courts the power to regulate lawyers because they must have the authority to govern the conduct of those who appear before them.

g. Disciplinary Agencies; Federal and State Trial Courts; Legislatures; Administrative Agencies; Prosecutors; Malpractice Insurers; Law Firms and Other Employers

The Character and Fitness Test

I. Rule 8.1 Bar Admission and Discipline

a. An applicant for admission to the bar, or an atty confronted with a disciplinary matter shall not:

i. (a) knowingly make a false statement of material fact

ii. (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

1. Comment

a. [1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer’s own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

b. [2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

c. [3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

II. Rest. § 1: Regulation of Lawyers

a. Upon admission to the bar, a lawyer becomes subject to law that applies to lawyers.

III. Rest. § 2: Admission to practice law

a. In order to become a lawyer, a prospect must comply w/ requirements of the jurisdiction w/ regard to education, character, and passing the bar exam

IV. In general:

a. Disclose things on Law School Applications

i. The bar will ask colleges if things were disclosed on law school applications

1. If the answer is no, you look bad, probably toast

2. It is possible to amend applications after the fact.

ii. Most Character Committees won’t allow you to ask them hypothetical’s.

b. It’s much harder to get kicked out of the bar than to be admitted.

i. The decision makers have a lot of discretion.

c. Questions about mental health will be asked, they attempt to be tasteful.

Introduction to Lawyer Liability – Professional Discipline

I. Grounds for discipline: Lawyers can be disciplined for conduct that…

a. has nothing to do with the practice of law (i.e. domestic violence, drunk driving, etc.)

b. was done while in public office (i.e. Nixon)

c. was done while teaching at a law school (e.g. In re Peters)

d. was a discriminatory act.

e. was done while committing a crime (even if no charges are filed)

f. he/she had an employee do (i.e. tell paralegal to shred docs)

g. was done outside the state where he/she practices.

i. If a lawyer is licensed in several states and is disciplined in one, he/she must disclose that discipline to the other states.

ii. “Reciprocal Discipline” – often the other state will impose the same sanction.

h. **The Rules Apply To Law Students, Professors, etc.!**

II. How a disciplinary case proceeds:

a. (1) Complaint by a client or lawyer

b. (2) Bar Counsel Investigates complaint

i. (3a) File closed, if not warranting charge, OR

ii. (3b) Charges filed

c. (4) Hearing committee conducts hearing,

d. (5) Hearing committee recommends sanction

e. (5) Hearing committee decision reviewed by judicial agency and/or highest court.

f. (6) Reviewing body makes final decision.

III. In re Peters (Dean Peters repeatedly engaged in unwelcome physical contact w/ 4 girls, 2 of which were students)

a. Holding: Peters used his power to take advantage of students. à Public Reprimand, Fine of $500

i. Professors are subject to the rules as well!

1. They are responsible for training the next generation.

2. They could always get back into practice.

ii. Being charged with a crime is NOT a prerequisite to professional discipline.

b. Rest. § 5: Professional Discipline

i. (1) A lawyer is subject to professional discipline for violating provisions of lawyer code

ii. (2) Also for attempt to commit a violation,

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.

No disclosure required if info comes out during program

c. (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

i. Professors are not approved – they have a duty to report former students.

ii. Non-lawyers are not bound by the rules, psychiatrists and priests have no duty to report

d. Comments

i. [1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

ii. [2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.

iii. [3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

iv. [4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

v. [5] Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer’s participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law.