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Professional Responsibility
University of Missouri School of Law
Dessem, Larry

Dessem – Professional Responsibility – Fall 2015
 
Part I: Regulation
Regulation of Lawyers
After Watergate, ABA began requiring PR course
Law that Governs Lawyers
Highest Court in Each State
Highest state court responsible – but often delegate primary responsibility for seeing that rules are enforced to disciplinary agencies
Inherent Powers Doctrine
The regulation of lawyers by courts is an exception to the usual principle that rules of law should be made by democratically elected representatives of the people. Courts usually make and enforce rules regarding ethics and procedure that govern lawyers
Adopts code of ethics, court rules, licenses lawyers, disciplinary sanctions
Other State Courts and Federal Courts
Have to be admitted
Bar Associations
State courts can delegate responsibilities to them
Administer bar exams, run disciplinary agencies, advisory ethics committees
MO – every lawyers is member of MOBar
Private non-governmental org. that produces model rules; less than ½ lawyers in ABA
American Law Institute
Private org. that produces restatements of law; civil liability can come from here
Administrative Agencies [SEC, IRS] Criminal laws, consumer protection laws, securities, unauthorized practice laws
Bring charges against other lawyers
Malpractice Insurers
Can require conflict checking system, review of opinion letters, tickler system to prevent missing deadlines
Law firms and other employers
Can have their own ethical standards and rules; preserve reputation
Lawyer Disciplinary Agencies
 
Rule 1.2(a): Lawyer shall abide by a client’s decision to settle a matter, to accept a plea, whether a client will testify, etc.
Ultimately, the client has the last say – lawyer just counsels
Ethics v. Morals
Moral standards are internal, ethical standards are written
Go with ethical standard unless you really need to break them – can withdraw, but can be huge issue. Always make a record, leave a paper trial
Bar Admission and Character & Fitness
Main modern rules – candor towards tribunal, competence, diligence
Rule 8.1 – Maintaining the Integrity of the Profession
8.1 – an applicant or lawyer shall not
Knowingly make a false statement of material fact OR
Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen..
Can violate this rule before you even become an attorney – treat applicants similar. Committee is more likely to never grant a license than to pull it
Why Have Character and Fitness
Maintain integrity of profession and attempting to protect the public
Character & Fitness is trying to use past activity to predict future – but can be difficult
When in doubt – Disclose
The Seven R’s if you’re in trouble
Rectitude – did you violate but for good reason?
Recurrence – has this happened before
Rehabilitation – have you taken steps to correct
Remorse – do you feel bad about it
Recency – how recent was the incident
Reported – did you report it
Referral – have you sought help
Extra ones from Class
 
 
Cost-Benefits of Asking about Debt, Mental Illness, Illegal Drugs
Privacy v. protecting the public – want people to be fit, but we don’t want to discourage people from seeking help
Problems with allow bar examiners to assess mental health – not qualified to assess and could discourage law students from getting help if they needed it
Manslaughter – Admitted
Became jailhouse lawyer and reformed; but should it be conditional?
Shoplifting and Misrepresentation of Debt – Admitted
Didn’t disclose loans and shoplifted, claimed confusion
Recurrence and pattern were more indicative then
Declaration of Bankruptcy – Admitted
109k in debt
Pattern of Hostile/Disruptive Conduct – Denied
Personal attacks, inappropriate emails. Recurrence. No evidence of rehabilitation or remorse. 47 YO
Cheating on Law School Exam – Denied
Goes to core; rectitude and morality
Federal Bank Fraud
Worse because shows deceitfulness
Racist Opinions – Denied
Denied because of protection orders and arrests
Posing Naked in Playboy Video – Admitted
Not relevant to representing clients
Debt – Denied
175k in loan, 12/hr job, living with child and child’s mother. Hadn’t begun loan repayment
Dessem would admit/thinks this might be different
In Re Mustafa – denied due to recency of acts
Embezzled student funds from student organization. DC denied admission b/c of recency. Later was admitted to Cali and had tons of issues
Lawyer Liability
What’re we worried about? Professional discipline, civil liability, criminal liability
Rule 8.4 – Misconduct
Professional misconduct for a lawyer to:
Violate or attempt to violate or assist/induce another to do so
Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness
Engage in conduct involving dishonesty, fraud, deceit, misrepresentation
Comment 3: lawyer who in course of representing knowingly manifes

ails to take reasonable remedial action
Rule 5.2 – Responsibilities of Subordinate Lawyer
Bound by rules even if you were told to do something
Does not violate if acted in accordance with a supervisory lawyer’s reasonable resolution of an arguable question
Rule 5.3 – Responsibilities Regarding non-lawyer assistances
Senior lawyer who tells non-lawyer to do something against rules is on the hook
Liabilities as a Subordinate/New Attorney
Rule 5.2 – Responsibilities of the Subordinate Lawyer
Reporting Other Attorneys
Technically – can’t be fired for reporting anyone and you have a duty to eport under Rule 8.3 (Wieder)
BUT the problem arises when your contract isn’t renewed OR you get terminated after you raise the concerns
Some states don’t give any protection from being fired – some courts consider that only the more senior partner that reports is entitled to protection
Kelly v. Hunton & Williams
Facts: whistleblower has own problems; attorney he reports is rainmaker for firm and has Ponzi scheme that is profitable for other partners. Whistleblower told he can be resigned or fired
Firm defense:
Not actually a lawyer – but court says no – hired him and he worked there
Did not officially report to the bar – but he reported to partners/associates. Protected
Discipline by the Bar
 
 
Civil Liability
Legal Malpractice
Duty, breach, injury/damage, causation
Difficult to prevail in malpractice – have to prove that client would have WON the underlying case or action (i.e., if lawyer acted properly then case would have turned out differently)
Lawyers protect themselves with malpractice insurance
Does not cover anything they might do – definitely doesn’t cover intentional acts
Client Protection Fund
Must pay into this as part of being an attorney after passing the bar; this is how clients recover stolen money or property from lawyers
Multiple theories client could recover under – some easier than others
Criminal Liability