Professional Responsibility
Ratliff
Spring 2013
Lawyer Liability
· The potential claims against lawyers can be divided into disciplinary claims, civil claims, and criminal claims.
· The reporting duty is a key feature of the system of professional self-regulation.
A. Professional Discipline
1. Process Of Lawyer Discipline
· Some disciplinary offices are administered by state bar associations, but a majority are independent of the bar associations.
2 Grounds For Discipline
· Conduct resulting in discipline. Lawyers are disciplined for a wide variety of conduct in and out of practice. Among the most common conduct that leads to discipline are misappropriating client funds, commingling law firm and client funds, missing our filing deadlines, failing to respond to client communications, committing mail fraud and tax evasion, and neglecting client cases (often because of substance abuse problems).
· Conduct outside the practice of law. A lawyer may be disciplined for violation of the applicable ethics code whether or not the violating occurs in the course of law practice. A lawyer may be disciplined for any conduct that is dishonest or prejudicial to the administration of justice or that reflects lack of fitness to practice.
o Lawyers have been disciplined for domestic violence, failure to pay child support, drunk driving, etc.
· Lawyers serving in elected or appointed government positions. Many lawyers who have held high public office have been disciplined for miscount that related to their performance of their duties as public servants.
· Crimes. A lawyer may be disciplined for the commission of any criminal act that violates an ethical rule or that reflects dishonesty, untrustworthiness, or lack of fitness to practice.
o A lawyer nay be disciplined for committing a criminal act even if no criminal charge is filed or the lawyer is acquitted of a charge in a criminal proceeding. The purpose of the disciplinary proceeding is to protect the public and the profession by disallowing practice of unfit lawyers.
· Actions of employees. A lawyer can be disciplined based on the actions of an employee. He may be disciplined for inducing or assisting another person to do something that would violate the rules if done by a lawyer.
· Action outside the state in which a lawyer is licensed to practice. A lawyer may be disciplined for violation of the rules regardless of whether the violations occurs in the state in which the lawyer is admitted.
o Most ethics code subject only lawyers admitted to practice in that state to the discipline for violation of the rules.
o A lawyer disbarred in one state could continue to practice in another sate unless or until the other state imposes reciprocal or other discipline. A lawyer who is admitted in more than one state must report to the other states where she is admitted if discipline is imposed in one of those states.
· Discriminatory behavior. The ABA model rules do not explicitly prohibit discriminatory behavior, but several states do through their disciplinary rules. Others interpret more general rules to prohibit such conduct, some of them including a comment after Rule 8.4 explaining that some discrimination violates Rule 8.4(d).
3. Reporting Misconduct By Other Lawyers
· The issue of whether an act must be reported arises often in connection with the analysis of other ethical issues.
a) The duty to report misconduct
Rule 8.3: Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer 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…
[(b) Requires reporting misconduct by judges.]
(c)This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.
A lawyer who “knows” of a violation by any other lawyer (an adversary, a public official, or a lawyer in own firm) must report it to the bar disciplinary agency.
Exceptions:
(1) Not all violations must be reported—only those raising a “substantial question” of the lawyer’s “honesty, trustworthiness, or fitness”
(2) A report need not be made if it would reveal information required to be kept in confidence under Rule 1.6. But a lawyer should encourage a client to waive confidentiality and permit reporting if that would not substantially prejudice the client. Comment 2.
(3) A lawyer who learns information about misconduct while participating in an “approved lawyers’ assistance program” is exempted from the requirement to report that information. Comment 5.
· Knowledge. The duty to report is triggered by a lawyer’s “knowledge” of another lawyer’s misconduct. The standard for assessing knowledge is objective. The knowledge must be more than a mere suspicion that misconduct has occurred. The question is whether “a reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred.”
· Bosses. If the conduct raises a “substantial question” about the “honesty, trustworthiness or fitness” of your boss, the reporting rule requires lawyers to report it. The reporting rule requires every lawyer to report serious misconduct by any other lawyer, whether the other lawyer is an adversary, a partner, a boss, or in some other relationship. Associates have a duty to report misconduct by partners. A lawyer can’t get off the hock by informing senior lawyers in a firm about the misconduct of another lawyer.
· Reporting your own conduct. The rule requires reporting of misconduct by “another lawyer,” which would appear to exclude self-reporting. Furthermore, if the reportable conduct could lead to criminal charges against the lawyer, the lawyer could conclude that she is entitled not to report her conduct because of her constitutional right against self-incrimination.
· Disclosure of confidential information. A lawyer is not required to report (1) information protected by the confidentiality rules and (2) information learned while participating an a lawyers’ assistance program. The confidentiality exception does not require a lawyer to get client approval before reporting misconduct of another. Neither does it allow a client to veto the lawyer’s reporting of misconduct. The rule simply shields lawyers from reporting confidential client information. The Restatement takes the position that if a lawyer learns of misconduct during an adversary proceeding and reporting would harm the client’s interests, the lawyer should defer reporting until the client’s interests can be
Rule 5.2: Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
A lawyer is not excused from responsibility on the ground that she was just “following orders.” However, if a supervisor directed the action, the subordinate lawyer may be able to prove that she did not actually know the action was improper. Comment 1.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Lawyers often disagree about whether proposed conduct would violate a rule. If the supervisor reasonably thinks the conduct is proper, the subordinate may undertake the action even if she believes otherwise. If the supervisor turns out to be wrong, however, the supervisor could be disciplined. Comment 2. If the supervisor was so wrong that her belief that the action was proper was not reasonable, the subordinate may also be disciplined.
· Responsibility for colleagues’ ethical violations. These rules make lawyers only partially responsible for each other’s actions. The law does not allow discipline of all the lawyers in a firm, or even all of the partners, if one of the firm’s associates violates a disciplinary rule. Supervising lawyers are liable for the unethical acts of lawyers they are supervising if they direct the act or know of the proposed act and do not prevent it. Other managers of the organization are also responsible if they know of the proposed actions. Under Rule 5.2(b), subordinate lawyers may be held accountable for unethical actions that they were ordered to undertake if the supervisor’s instruction was not based on a “reasonable resolution of an arguable question of professional duty.”
Reasonableness of a supervising lawyer’s decision. The associate needs to assess whether the supervisor’s instruction is a “reasonable resolution of an arguable question of professional duty.” To answer that question, the associate should (a) do some research, and (b) seek advice from someone more experienced. The research might include the study of the case law and commentary interpreting the ethical or procedural rules involved. The associate should look for authority that supports or refutes the supervisor’s interpretation or his own. The associate might seek guidance from a trusted mentor within the firm or from the firm’s ethics advisor, or the associate might seek confidential advice from a former professor or another lawyer outside the firm. If the associate seeks advice outside the firm, he should endeavor not to disclose client
