PROFESSIONAL RESPONSIBILITY OUTLINE
Chapter I. The Legal Profession: Background and Fundamental Issues
A. Introduction
B. Development of the American Legal Profession
C. The Development of Standards of Professional Conduct
1. Canons of Professional Ethics – 1908
2. Model Code of Professional Responsibility – 1969
3. ABA Model Rules of Professional Conduct (Restatement) – 1983
4. ABA Model Rules of Professional Conduct (Restatement) – 2002
5. ABA Rules must be adopted by the State to be legally binding.
6. Four sources of authority and advice will be important to a legal ethics analysis
a. Court decisions
i. whether in cases seeking discipline of lawyers
ii. cases seeking malpractice damages
iii. contempt proceedings
iv. criminal cases
b. ABA and state and local bar associations
c. Restatement Third, The Law Governing Lawyers by the American Law
Institute – 2000
d. Federal agencies’ regulations.
D. Some Contributions From Moral Philosophy to the Study of Legal Ethics
1. The Ethics of Duty versus the Ethics of Aspiration
2. Moral People versus Moral Actions
3. Role Ethics versus Common Ethical Standards
4. Consequential versus Deontological Standards
5. The Ethic of Care
6. Personal versus Social Ethics
E. The Matter of Professionalism
F. An Introductory Problem
G. A Word on the Organization of this Book
Chapter II. Preamble: A Lawyer’s Responsibilities
Summary of Rules:
[1] Attorney is a representative of clients and public citizen having special responsibility for the quality of justice.
[2] An attorney performs various functions: advisor, advocate, negotiator, and evaluator.
[3] An attorney may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.
[4] An attorney should be competent, prompt, and diligent.
[5] An attorney’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.
– It is the attorney’s duty to uphold legal process.
[6] An attorney should seek improvement of the law, access to the legal system and the quality of the service rendered by the legal profession (as a public citizen)
[7] An attorney is guided by personal conscience and the approbation of professional peers.
[8] When an opposing party is well represented, an attorney can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.
[9] Conflicting responsibilities exist between an attorney’s responsibilities to clients, to the legal system and to the attorney’s own interest in remaining an ethical person while earning a satisfactory living.
[10] The legal profession is largely self-governing.
– This comes from the courts. It’s important that we have good judges.
– Requirement that attorneys report professional misconduct of other attorneys (Rule 8.3: Reporting Professional Misconduct – An attorney who knows that another attorney has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.)
– If an attorney does not report a fellow attorney, they themselves are in violation of the Rules of Professional Conduct
[11] Self-regulation helps maintain the legal profession’s independence from government domination.
[12] Profession has responsibility to assure its regulations are in the public interest and not in self-interest.
[13] Attorneys play vital role in preservation of society.
SCOPE
– not an exclusive list of the goals of the model rules
– Does the rule accommodate the aspirations of the commentary in the preamble?
– How do the rules, and enforcement of the rules, stack up to these axioms/goals as stated in the preamble?
(this is the overriding question for the preamble)
– if they don’t stack up, then the system is flawed.
– Patterson doesn’t think the rules measure up in providing equal justice or quality justice.
(e.g. Rule for Pro Bono work. Some jurisdictions mandate pro bono assistance – for civil work – but the rules don’t)
– Rules don’t allow for equal access to the justice system.
– SCOPE is for helping to interpret the rules. Comments ought to be read with the rule.
Having a high responsibility for the quality of justice.
– this should be something all attorneys should strive for.
– Function lawyer plays dictates the nature of the rule.
– These rules apply to attorneys even if they are acting in a non-professional capacity. Some attorneys question why.
– First three rules generate the most malpractice questions.
– Because the legal profession is mostly self-regulating, these rules have been comprised mostly by attorneys. Attorneys police each other.
– We will be tested on the ABA Model Rules of Conduct on the Bar Exam.
Professional vs. Legal Tracks
– parallel tracks that run through many of the rules
– consequences and way of dealing with them are different
– violation of legal track can be anywhere from public admonition to disbarment
– violation of professional track can be money damages
REGULATION OF THE LEGAL PROFESSION
Problem 1: Admission to the Bar
A. Character and Fitness for Admission to the Bar
1. Every American jurisdiction requires that applicants for admission the bar have the necessary “character and fitness” to practice law. Why?
a. Protect the Public
b. Maintaining a Professional Community and Public Image
2. Does Gerald Smith’s cheating in law school demonstrate that he lacks “good moral character”?
a. Hallinan v. Committee of Bar Examiners – the test for discipline and bar admission is the same, namely whether the individual “is a fit and proper person to be permitted to practice law”.
3. Should dishonesty in handling of money defeat a person’s bar admission?
a. In re Mustafa, yes – incident happened less than a year ago.
b. In re Krule, yes – did not disclose, was not honest
4. Should there be a statute of limitations on how long prior incidents can affect current bar decisions?
a. Hallinan v. Committee of Bar Examiners – “adolescent misbehavior” was not sufficient to disqualify the applicant.
b. Matter of Prager – he was not sufficient rehabilitated to be admitted to the bar.
5. Historically, the principal concern about the character and fitness requirement has been its potential to deny bar admissions based on political belief rather than character. In the 1950s, for example, it was the principal basis for denying members of the communist party
ate Board of Law Examiners – disabled person given four days to complete the regular two day test
b. In re Rubenstein – learning disability, she did not pass and the court ordered her admission.
c. Bartlett v. NY State Board of Law Examiners – dyslexia entitled her to extra accommodations
D. Other Attempts at State and Federal Limits on Bar Admission
1. Should there be anything wrong with a state requiring bar applicants to be U.S. citizens and state residents?
a. In re Griffiths – no
b. Supreme Court of NH v. Piper – do not need to be a state resident
c. Tolchin v. Supreme Court of New Jersey – NJ can require that lawyer has a “bona fide office” in the state (protects citizens against lawyers only practice occasionally in the state)
2. Should federal courts have the right to limit admission of lawyers already certified by a state as qualified to practice law?
a. Admission to the highest courts of a state will ordinarily be sufficient to qualify for admission to the federal courts of that state.
b. Brown v. McGarr – some courts have justified different rules for federal litigators
Problem 2: Lawyer Discipline and the Disabled Lawyer
A. Conduct that can Subject a Lawyer to Professional Discipline
1. Where does a lawyer look to see what can justify personal discipline?
a. If state has adopted ABA Model rules, then rule 8.4(a)
b. The “catch all” provisions of Restatement Third, the Law Governing Lawyers § 5, Comment (c).
2. What should be the purposes and functions of the lawyer discipline process? Should it be used only to punish dishonesty or other “serious” wrongdoings? Should the purposes of the process include responding to what clients see to be problems with their lawyers, even if the concerns seem minor to lawyers themselves?
a. Two American Bar Foundation researchers have suggested that the process has three functions: “(1) to identify and remove from the profession all seriously deviant members (cleansing function); (2) to deter normative deviance and maximize compliance with norms among attorneys (deterrence function), and (3) to maintain a level of response to deviance sufficient to forestall public dissatisfaction (public image function).
b. Restatement Third, the Law Governing Lawyers § 5, Comment (b).
3. Applying these ideas to the facts of this Problem, does using the discipline process to pursue Andrews and Black seem desirable?
b. Representing clients competently and diligently are among the most important ethical responsibilities of a lawyer. See Model Rules 1.1 and 1.3.
c. ABA Informal Opinion 1273, November 20, 1973 defines neglect.
d. In re Wolfram, 18 month suspension for providing inadequate
