Select Page

Professional Responsibility
University of Missouri School of Law
Fisch, William B.

I.                    Pervasive Issues
a.       Lawyers owe duties to 4 constituencies 
                                                               i.      The Public
                                                              ii.      The Courts
                                                            iii.      Individual Clients
                                                            iv.      Other Lawyers (The Profession)
b.       Where do the rules come from?
                                                               i.      Legislatures (laws that purport to control the practice of law)
                                                              ii.      Supreme courts (judicial regulation) – primary regulatory agency
                                                            iii.      Courts deciding particular cases
                                                            iv.      Bar associations (local, state, national)
1.       Formulate rules of conduct and propose them for adoption by the courts as regulated
2.       Also provide opinions on particular issues of professional responsibility
a.       Informal opinions – directed at lawyer who requested
b.       Formal opinions – address the issue more generally (to more than 1 lawyer)
c.        Does a lawyer inform opposing counsel of mistake (i.e. default judgment) against client’s wishes? (Sprung)
                                                               i.      Communication of confidential information is prohibited without permission (MR 1.6)
                                                              ii.      Client has the last word re: goals of representation; atty has last word re: means to accomplish that goal (MR 1.2)
d.       Formal Professional Rules
                                                               i.      ABA Canons of Professional Ethics – 1908
1.       Traditional tenets of noblesse oblige – a conceptualization of legal practice as an elite craft, practiced independently, w/ a commitment to civic-political affairs
2.       All about loyalty to the law and to the public
3.       At beginning – were evidence of assumed practice norms
4.       BUT turned into an enforceable legal code throughout the years
                                                              ii.      ABA Model Code of Professional Responsibility – 1969
1.       Major shift of emphasis – toward rule-oriented approach rather than an ethical/aspirational approach
2.       Functioned as statutes to control the legal profession
3.       Scrapped w/in 15 years
                                                            iii.      ABA Model Rules of Professional Conduct – 1983
1.       Replaced the Code and is in Restatement format
2.       NOT ethics; are a set of regulatory mandates and prohibitions
3.       Imposes few responsibilities beyond those already imposed by the substantive law of agency, tort, and contracts
4.       2 Levels of Norm
a.       Black-letter – the rule as such
b.       Commentary – to explain the thinking behind a particular rule (only meant to be explanatory – an agent to interpretation of the rules)
5.       ABA has been very successful in convincing state regulatory authorities to adopt the MR but remember that not every state has adopted every rule in the MR format (like MR 1.6)
                                                            iv.      RST of the Law Governing Lawyers – provides guidance beyond the scope of the rules, covering the formation of the lawyer-client relationship, civil liability of lawyers to clients and third parties, and attorney-client privilege in the law of evidence (and other stuff too)
e.        Criticism of the Lawyer’s “Traditional” Role
                                                               i.      Traditional (or Amoral) Role – to require the lawyer to pursue the client’s goals w/out regard to the personal morality of those goals
                                                              ii.      2 Moral Criticisms of Lawyers
1.       Lawyer-client relationship renders the lawyer amoral and at worst immoral in his dealings w/ the rest of mankind
2.       Lawyer-client relationship is morally objectionable b/c the lawyer dominates and typically, and perhaps inevitably, treats the client in both an impersonal and a paternalistic fashion
                                                            iii.      MR 2.1 permits the lawyer to advise clients about not only the legal, but also the moral, political, social, and economic consequences
                                                            iv.      Other Models of Lawyer Practice
1.       Libertarian model – favors procedure over substance (Example – SoL to defeat legitimate claims)
2.       Regulatory model – primary function is to assure enforcement of the substantive law
3.       Discretionary model – take actions that seem most likely to promote justice
a.       Requires 2 dimensions to the judgment
                                                                                                                                       i.      Relative merit – some rights or interests are more important than others (and looking to the rights and interests of others too)
                                                                                                                                      ii.      Internal merit – attempt to reconcile the conflicting legal values implicated directly in the client’s claim or goal
b.       Suggests that disciplinary rules should be expressed as rebuttable presumptions – as instructions to behave a certain way unless circumstances indicate that the values relevant to the rule would not be served by doing so
                                                             v.      4 Approaches when the Rules of the Profession Are against the Lawyer’s Moral Standards
1.       Declare lawyering an amoral enterprise – use no moral judgment
2.       Profession is one where have to sacrifice own moral integrity or find another profession
3.       Integrate the essential moral imperatives of the profession into an overall conception of self
4.       Detach oneself from what’s going on
II.                  The Legal Profession and the Practice of Law
a.       Judicial Regulation and the Doctrine of Inherent Power
                                                               i.      In most states, the highest court of the state is the primary regulatory authority for lawyers
                                                              ii.      Some state constitutions have provisions giving the state supreme court the right to create rules while other states have general provisions giving the state supreme court general control over the courts
                                                            iii.      3 Sources of Power for Judicial Regulation of Attorneys
1.       Constitutional separation of powers
2.       Traditional inherent and essential function of attorneys as officers of the court
3.       The court’s exclusive original jurisdiction over attorney disciplinary proceedings
                                                            iv.      Inherent Power
1.       Claim is that courts have inherent power to regulate the practice of law b/c everything that lawyers do is connected w/ role as advocates in front of the court
a.       Appearing in front of court – not controversial
b.       Everything else (giving advice, drafting documents) – controversial b/c extra-judicial
c.         
2.       2 Aspects of Inherent Power
a.       Affirmative – Judiciary can function in absence of regulation by constitution or statute
b.       Negative (exclusive) – Judiciary has sole power to regulate the practice of law; can declare invalid any act of other branches of government purporting to regulate the practice of law
                                                                                                                                       i.      Weak: If judiciary and legislature adopt conflicting rules regarding practice of law, judiciary trumps
                                                                                                                                      ii.      Strong: If legislative rule regulates the practice of law, it is invalid, period
3.       If court uses both affirmative and negative inherent power, neither executive or legislative branches could limit or control use of the power
4.       Many state courts make the claim that if the legislature passes a statute purporting to regulate attorneys that is in conflict w/ a rule, the statute can be overturned
5.       Examples of statutes that would be otherwise regulated by a judicial rule
a.       Conflict of interest rule to government attorneys – struck down
b.       Authorize corporations to appear in court represented by non-attorney officers – struck down
c.        Authorize non-lawyer to prepare certain legal documents – struck down
b.       Federal Intervention in State Regulation
                                                               i.      The federal government doesn’t haven any authority to regulate the practice of law EXCEPT as it represents commerce (ICC) OR it represents state actions (subject to constitutional constraints)
                                                              ii.      Areas where it’s abundant
1.       Antitrust
2.       Securities regulation
3.       Constitutional law
                                                            iii.      No antitrust suits (under Sherman Act) against the courts for restraints on trade resulting from valid government action (Lawline)
                                                            iv.      Bar Associations
1.       Bar associations can violate anti-trust laws
a.       Like when they have directly adopted accreditation rules for law schools
b.       NOT when they recommend rules of conduct for adoption by courts
2.       Some states (or their courts) have required membership of all lawyers who practice in the state in the state bar association (MO is one)
a.       Mandatory bar membership creates 1st amendment associational freedom problems
b.       The bar can compel dues to help disciplinary proceedings but cannot compel dues to support activities that have political or ideological underpinnings
                                                             v.      Judicial Immunity
1.       Have immunity from liability in damage suits
2.       Immunity from agents (of the court) requires that they be:
a.       SupervisedAND
b.       Acting pursuant to clearly articulated policy
3.       BUT when federal civil rights claim seeks declarative or injunctive relief – there’s no judicial immunity (b/c no threat to judicial independence)
                                                            vi.      Procedural Bars to Federal Judicial Intervention
1.       Abstention (Younger v. Harris)
a.       Federal court cannot enjoin an ongoing state criminal proceeding unless there was an exceptional and immediate danger of irreparable loss
b.       Doctrine is applicable to state disciplinary proceedings if:
                                                                                                                                       i.      The disciplinary proceeding constitutes an ongoing state judicial proceeding
                                                                                                                                      ii.      The disciplinary proceeding involves important state interests AND
                                                                                                                                    iii.      Constitutional challenges can be raised in the state proceeding
c.        Main point – if you have a constitutional defense, do not file a federal lawsuit; assert the defense in the disciplinary proceeding
2.       Rooker-Feldman Doctrine
a.       A federal court cannot hear a claim that has already been determined by the state court or is “inextricabl

at are designed to have legal consequences
d.       Advisory function – answer questions and giving advice to clients
4.       ABA’s definition – the application of legal principles and judgment w/ regard to the circumstances or objectives of a person that requires the knowledge and skill of a person trained in law
                                                             v.      Law Students – if acting w/in bounds of court rule authorizing student practice, activities are not the unauthorized practice of law
                                                            vi.      Pro Se Representation
1.       Not unauthorized practice of law as long as acting on own behalf
2.       Partnerships and corporations cannot appear pro se
a.       Only proper representation is a licensed attorney
b.       Doesn’t matter how close is association w/ the partnership or cooperation is
                                                          vii.      Unauthorized practice of law is not only a violation of supreme court rule; it’s also a crime
1.       If it’s a crime, is defined by the legislature
2.       For purposes of criminal proceedings, the statute controls
3.       BUT to the extent that there may be a difference of interpretation (or differences in definitions of practice of law), the statute does no control the supreme court’s judicial power to enforce its concept of the practice of law through judicial remedies
                                                         viii.      Multi-jurisdictional Practice
1.       MR 5.5(c)-(d) – all about multi-jurisdictional practice
a.       (c) – A lawyer admitted in another US jurisdiction (and not disbarred or suspended from any jurisdiction) may provide legal services on a temporary basis in a jurisdiction that:
                                                                                                                                       i.      Are undertaken in association w/ a lawyer who is admitted to practice in the jurisdiction and who actively participates in the matter
                                                                                                                                      ii.      Are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized to appear in such proceeding or reasonably expects to be so authorized
                                                                                                                                    iii.      Are in or reasonably related to a pending or potential alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission
                                                                                                                                    iv.      Are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice
b.       (d) – A lawyer admitted in another US jurisdiction (and not disbarred or suspended from any jurisdiction) may provide legal services in a jurisdiction that:
                                                                                                                                       i.      Are provided to the lawyer’s employer or its organizational affiliates and are not services which require pro hac vice admission (in-house corporate lawyers, government lawyers, or others who are employed to render legal services to the employer)
                                                                                                                                      ii.      Are services the lawyer is authorized to provide by federal law or other law of the jurisdiction
2.       Allowed to practice b/c does not create an unreasonable risk to the interests of their clients, the public, or the courts
3.       A lawyer who practices law pursuant to (c) or (d) is subject to the disciplinary authority of the jurisdiction
4.       Distinction between practicing the law of a state and practicing law in a state
a.       Advising a CA client about CA law in MO office = practicing CA law
                                                                                                                                       i.      May not be able to recover fees
                                                                                                                                      ii.      Probably won’t be sanctioned – b/c the license is understood to give you formal competence in any law