Professional Responsibility Outline
M. Gerhardt, Fall 2011
I. Admission to the Bar
a. The power to regulate lawyers is inherent in the judicial function of the courts
b. Admitting lawyers to practice, formulating and amending lawyer codes, and regulating the system of lawyer discipline are functions reserved in most states to the highest court of the state.
c. Bar associations have played an increasing role in regulating the conduct of lawyers,
i. Self-regulation protects lawyers against control by the state, but…
ii. Self-regulation carries with it a risk of under-regulation, regulation that is in the interest of lawyers and not the public, or regulation that focusses disproportionately on groups of lawyers disfavored within the controlling bar association or committee.
d. Admission Requirements Generally:
i. Graduation from an accredited undergraduate college
ii. Graduation from a law school that meets the state’s educational standards
iii. Submission of a bar application
iv. A finding that the applicant is of good moral character and is fit for the practice of law
v. A passing score on a bar exam (MBE and MPRE)
e. Rule 8.1: Bar Admission and Disciplinary Matters – an applicant for admission to the bar, or a lawyer in connection with a bar admission, cannot a) knowingly make a false statement of material fact or b) fail to disclose a fact necessary to correct a misapprehension, except as covered by Rule 1.6 (Confidentiality of Information).
i. C1: therefore, a bar applicant can be disciplined later for making a false statement on the application. Moreover, the misunderstanding need not have been created by the lawyer but just one of which he “becomes aware.”
II. Lawyer Liability
a. Professional Discipline
i. Sometimes a lawyers duties to the firm may conflict with his duties to the profession
ii. A lawyer who is told to do something that the lawyer thinks is unethical has several options:
1. Accept the directions of the supervisor
2. Argue with the supervisor
3. Discuss the problem with another superior
4. Do more research or investigation to try to clarify the problem
5. Ask to be relieved form work on the matter, or
6. Resign (or be fired) from the employment
iii. Rule 8.3: Reporting Professional Misconduct – a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, must inform the professional authority unless it is covered under Rule 1.6. Rule 8.3(a,c). A lawyer who knows a judge has committed a violation of the rules of judicial conduct that raises a substantial question as to the judge’s fitness for office should inform the authorities. Rule 8.3(b).
1. C1: this is about self-regulation.
2. C2: while a lawyer does not have to disclose conduct protected by Rule 1.6, the lawyer should encourage the client to consent to the disclosure where prosecution would not substantially prejudice the client’s interests.
3. C4: the duty to report does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.
iv. Rule 8.4: Misconduct: – it is misconduct for a lawyer to a) violate or attempt to the MRs, knowingly assist another to do so, or do so through the acts of another b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, d) engage in conduct prejudicial to the administration of justice, e) state or imply an ability to improperly influence a government official, and f) knowingly assist a judge in conduct in violation of the rules of judicial conduct. Rule 8.4.
1. C2: many kinds of illegal conduct reflect adversely on the lawyer’s fitness to practice law, such as committing fraud or willfully failing to file a tax return. Matters involving violence, dishonesty, breach of trust, or serious interference with administration of justice are in this category. A pattern of repeated offenses, even minor ones, can indicate indifference to a legal obligation.
2. C3: a lawyer who manifests bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socio-economic status is engaging in conduct prejudicial to the administration of justice under Rule 8.4(d)
b. Civil Liability of Lawyers
i. Legal Malpractice refers to a claim brought against a lawyer for professional misconduct that is alleged to have caused harm to another person
1. Tort claim for negligence
2. Intentional misconduct
3. Asserted breach of contract between lawyer and client
4. Breach of fiduciary duty
ii. Elements of legal malpractice:
1. The lawyer owed a duty to the client
2. The lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances”
3. The breach of duty caused harm to the client (“but for” cause)
iii. What fiduciary duties are owed by a lawyer to a client?
1. Safeguarding the client’s confidences and property
2. Avoiding impermissible conflicting interests
3. Adequately informing the client
4. Following instructions of the client
5. Not employing adversely to the client powers arising from the client lawyer relationship
iv. A lawyer might take on a special fiduciary role in addition to that of the lawyer to the client. (Escrow agent, witness, executor, trustee, mediator etc.)
v. A lawyer owes duties to some third parties such as prospective clients and third party beneficiaries of the lawyer’s work for a client
vi. Other Civil Liabilities
1. Breach of contract
1. Unfair fee agreements
2. Settlements negotiated under false representations
3. Business transactions without complete disclosure of lawyer’s interest
2. Violation of regulatory statutes (federal, state, and local)
1. Administrative agency requirements
2. Employment discrimination
3. Debt collection
4. Consumer protection laws
III. The Duty to Protect Client Confidences
a. The Basic Principle of Confidentiality
i. The primary purpose of the confidentiality rule is to facilitate communication between the lawyer and the client.
ii. Rule 1.6: Confidentiality of Information – a lawyer cannot reveal information relating to the representation of a client w/o informed consent. Rule 1.6(a). However, a lawyer may break the A/C privilege to:
1. MR 1.6(b)(1) – Preventing Death or SBH – the lawyer may break the AC privilege to prevent reasonably certain death or serious bodily harm to ANYONE. (in VA it is must for crimes).
2. MR 1.6(b)(2) – Preventing Crime or Fraud – the lawyer may break the AC privilege to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.
3. MR 1.6(b)(3) – Prevent Substantial Financial Injury – the lawyer may break the AC privilege to prevent, mitigate or rectify substantial injury to financial interests or property of another reasonably certain to result or has resulted from the client’s commission of crime or fraud, in furtherance of which the client has used or is using the lawyer’s services. This does not apply when the client is employing the lawyer concerning the crime or fraud itself. C8.
4. MR 1.6(b)(4) – Securing Legal Advice – the lawyer may break the AC privilege to secure legal advice about compliance w/ ethics rules.
5. MR 1.6(b)(5) – Self-Defense – the lawyer may break the AC privilege to establish a claim or defense in a controversy b/w the lawyer and the client, to establish a defense in a criminal or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client. This gives attorney’s liberal authority to violate confidentiality in order to defend themselves. It does not even require the lawyer to await the commencement of a cause of action so the lawyer can respond directly to a third party making the assertion. Moreover, the lawyer can break the AC privilege
essary to avoid a client’s fraudulent act.
2. 4.1(b) also bars a lawyer form knowingly failing to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act
3. A lawyer is not, therefore, always free to withhold a disclosure of crime or fraud that will cause financial harm to another person, unless the disclosure is prohibited by Rule 1.6
6. Ethics rules allowing or requiring revelation of criminal or fraudulent conduct
1. Rule 8.4(c) – Dishonesty
2. Rule 1.13(c) – duty to call attention to represented org.
3. Rule 3.3 – duty to reveal to tribunals
4. Rule 3.4 – duty to reveal to third parties
5. Rule 1.16(a) – duty to withdraw
6. Enron and The Sarbanes-Oxley Act
i. The Sarbanes-Oxley Act was passed to prevent massive corporate fraud
ii. § 307 requires lawyers who practice before the SEC or who advise companies regulated by the SEC to report any info about securities fraud to the highest officials of the corp. or report it to the SEC (if it will harm investors).
iii. § 307 is not really enforced against lawyers, except the Isselman case
iv. Ethics codes apply more broadly than the SOX
iv. Rule 1.6(b)(5) makes it clear that compliance with the rules is more important than protecting client confidences
v. Rule 1.6(b)(5) means that a lawyer may reveal confidences even if the allegations made by an injured party and not a client and if the lawyer is not the primary target of the allegation.
vi. Rule 1.6(b)(6) means that a court order trumps the obligation to protect confidences. This requires interpretation of the law and not the Rules of Conduct.
c. Use of disclosure of confidential information for personal gain or benefit another client
i. In addition to Rule 1.6, C5, Rule 1.8(b) does not prohibit a lawyer from using confidential information from one client to benefit another client, so long as the first client gives informed consent or is not disadvantaged by the use of the information.
IV. Attorney-Client Privilege and Work Product Doctrine
a. Confidentiality and attorney-client privilege compared
i. The duty to protect confidences is imposed by ethical rules; privilege is imposed by evidence law.
1. Privilege rules provide that neither lawyer nor client can be compelled to testify in court about protected communications
2. The ethics rules require lawyers to protect confidential information.
ii. Information covered by the privilege is a subset of the confidential information.
1. The scope of confidentiality is broader than A/C privilege
2. Courts can compel disclosure of information that is not between attorney and client but which is still covered by privilege
b. The elements of attorney client privilege
i. Communication between lawyer and client
1. the privilege protects only against the disclosure of the communication itself and not the underlying facts that might have been communicated
ii. Privileged Persons
1. Communications with the agents of a lawyer are privileged
2. Those facilitating communication between a lawyer and a client are protected but the lawyer should verify the role of any third person the client brings into a communication.
3. Communications with a prospective client are privileged