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Professional Responsibility
University of Missouri School of Law
Levin, James

Professional Responsibility

Spring 2016

Levin

Ethics Morals & Professionalism

Definitions

Morals: values attributed to a system of beliefs that help define right vs wrong, good v bad

Ethics: discipline concerned w/ what is morally good/bad; (system or theory of moral values

Legal ethics: principles of conduct that members of profession are expected to observe when practicing law

Generally

Rules often require stricter actions than you would think

OCDC – Agency of Supreme Court that takes care of infractions

investigates & prosecutes atty

Most common complaints

Communication

Diligence

Safekeeping property

Improper withdrawal

Excessive fees

Dishonesty, fraud, deceit, misrepresentation

Most common areas w/ complaints: domestic & criminal

Central themes

Conflicts of interest: person has conflicting obligations to 2 or more people

Truthfulness

Duty to clt. vs duty to justice system

Client centered vs public centered

Personal/professional interests v fiduciary obligations

Self-interest

1.5(b) → duty to inform clt. about basis of fees based on time spent before or reasonable time after lawyer begins work

Doesn’t specify what must be disclosed

Writing preferred

Rule doesn’t require permission or notice of increased rate, only to tell clt. that fee changed

Regulation of Lawyers

Institutions that regulate lawyers

highest state courts

Highest court of the state in most states adopts rules of conduct that govern lawyers (so court plays role of legislature by adopting ABA rules)

Courts regulate lawyers as part of their authority to administer the courts

Roles:

adopts ethics codes & court procedural rules that govern lawyers;

based on ABA model rules

enforcing rules by disciplining lawyers who violate them

often delegate primary responsibility for seeing that rules are enforced to disciplinary agencies run by lawyers.

sets & implements standards for licensing lawyers, including educational & moral character requirements );

supervises agencies that investigate & prosecute complaints of unethical conduct by lawyers;

supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.

responsible for enforcement/discipline.

Sanctions from supreme court:

Public reprimand

Admonishment – letter in private file

Probation

Suspension

Disbarred

7.1 (4-7.1 differs slightly)

Sometimes states’ highest courts delegate regulatory functions to state bar associations

Inherent Powers Doctrine: state supreme courts have inherent authority to regulate lawyers’ conduct as a matter of common law b/c they need to govern the conduct of those who appear before them

delegates responsibilities to bar associations

regulation of lawyers by courts is an exception to principle that rules of law should be made by democratically elected representatives of the people.

Negative inherent powers doctrine: state courts asserted that their regulatory authority over lawyers is exclusive of other branches of government.

Some courts have invalidated legislation regulating lawyers

State & local bar associations

Private nonprofits

Administer bar exams & review candidates for admission

investigating/prosecuting misconduct that violates state ethics code

Sanctions: disbarment, suspension, public/private reprimand

Unified/integrated bar: state bar that accepts delegated functions from the state’s highest court

Unified bar: mandatory membership

This is in MO

Office of Chief Disciplinary Council also enforces rules

Voluntary bar associations: city & county bars, women & minorities, particular fields, etc.

Lawyer disciplinary agencies

often called bar counsel’s offices or disciplinary counsels

Historically – important role in establishing lawyer disciplinary systems

Some voluntary

usually run by the highest court in the state, state bar association, or by the court & the state bar.

responsible for investigating & prosecuting misconduct that violates the state ethics code.

Sanctions: disbarment, suspension, public/private reprimand

Clts, attys, anyone can file complaints

Statute of limitations is 5 years

OCDC:

Regional disciplinary

Advisory committee

Disciplinary hearing panel

Supreme court of MO

American Bar Association

National

Private nonprofit, membership fees

Primary drafter of ethics codes but limited governmental authority

Voluntary membership

Private assoc.

No licensing authority (credentials law schools)

No mandatory ethical rules

American Law Institute

Restatement: (published by ALI (3000 judges, attys, & law professors) publishes black letter law & summarizes law in majority of jurisdictions

If inconsistent w/ state rules, follow state rules

Federal & state courts

any licensed lawyer who applies & pays a fee is admitted to practice before the federal court

Federal courts in each jurisdiction adopt their own standards for bar admission, & some adopt their own ethical rules

Appellate courts (state & federal) review malpractice & disqualification decisions of lower courts.

Roles

Set rules for the conduct of lawyers in litigation

Sanction lawyers who violate those rules

sanction the lawyer directly under the federal or state civil procedure rules.

hold a lawyer in contempt or impose sanctions for obstructive behavior during discovery.

Rule in malpractice & other cases

Hear & decide motions to disqualify lawyers who may have conflicts of interest precluding representation

Sanctions for misconduct per federal/state CivPro rules, including

Fines

fee forfeiture

other penalties

Legislatures

adopt constitutions & statutes, including criminal laws, banking laws, securities laws, & so on, that apply to everyone doing business in the state, including lawyers

Nearly every state has a statute that makes it a criminal offense to engage in the unauthorized practice of law (UPL), & at least four impose felony sanctions for some UPL offenses.

Administrative agencies

In general, lawyers admitted to practice in any state may appear before an agency of

ns, detailed inquiries about past residences, academic performance, employment etc., interviews

Misconduct during law school:

In re Mustafa

Facts: Mustafa passed bar & applied for DC bar & in third year of law school, Mustafa converted 3510 of moot court money to personal use

Law school investigated, Mustafa made full restitution & got a letter of censure in his file

Committee recommended Mustafa be admitted to the bar

Holding: given the short period of time since misconduct, Mustafa failed to establish that he has good moral character required for admission to the bar

If he were a lawyer, he would’ve been disbarred or even faced criminal charges

Fitness examination – protect the public from unfit lawyers & safeguard dignity & reputation of bar & system of justice

Lawyer Liability

Professional discipline

History & process of lawyer discipline

Recently, disciplinary citizen has become professionalized w/ better funding, more staff & greater ability to police lawyer misconduct

Admin hearing panels: make findings of fact & ad recommendations for sanctions

States adopted procedural rules for adjudication of lawyer discipline cases (most based on ABA model rules for lawyer disciplinary enforcement)

Sanctions

Disbarment

Suspension

Reprimand

Another sanction

Disciplinary proceedings

Highest court runs disciplinary system in most states

independent office set up by court uses paid staff attys to investigate/prosecute charges against lawyers

Most are independent of bar associations

Some administered by state bar associations

Facts about disciplinary proceedings

Most people disciplined are sole practitioners

Formal discipline disproportionately imposed on minorities

Most complaints come from clts

Disciplinary agencies tend to underenforce the rules

Disciplinary case order:

Clt./lawyer complains

Bar counsel investigates complaint & either files charges or closes file

Most complaints aren’t investigated

Bar Counsel File charges if warranted by investigation

Hearing committee conducts hearing, makes factual findings, recommends sanctions

Hearing committee: depends on the state: a 3-person volunteer hearing committee (often includes two lawyers & a non-lawyer), a single volunteer lawyer adjudicator, or a judge.

Hearing committee decision reviewed by judicial agency/highest state court (reviewing body makes final decision on sanction)

may be appealed to state’s highest court