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Professional Responsibility
University of North Carolina School of Law
Remus, Dana Ann

Remus-PR Spring 2014

I. Regulation of Lawyers

a. ETHICS V. MORALS:

i. Ethics= the field of what is right or wrong, set of principles

1. Unethical= in violation of code of ethics set out for lawyers

ii. Morals= whether an act is right or wrong, usually refers to a higher authority

1. Immoral= when particular response was not “the right thing to do”

KEY POINT FOR EVERY ISSUE IN PRàWHETHER CERTAIN TACTICS THAT ARE TECHNICALLY “ETHICAL” MIGHT NEVERTHELESS NOT BE MORAL

b. PROFESSSION: members permitted to do something that non-members can’t and are licensed to do this thing; commitment to serving others with training; internal standards of performance; external standards of conduct

c. HISTORY:

i. ABA Canons: developed in 1908, most states accepted, not consistently treated (mandatory v. suggested)

ii. ABA Model Code: developed in 1969, more like binding law, 2 types:

1. DRs [disciplinary rules]: bindingàminimum level of conduct below which no lawyer can fall w/o being subject to disciplinary action

2. ECs [ethical considerations]: advisory in natureàaspirational rather than mandatory, but courts have occasionally used them as if they’re mandatory

iii. ABA Model Rules of Professional Conduct: passed in 1983, limited changes, states less eager to adopt

1. Rule-of-law treatment: largely abandoned the aspirational tone of the Canons and the ethical Considerations in favor of a “rule and comment” organizational schemeàmore rule-of-law treatment of the law of lawyering than was possible under the former, more aspirational, spirit-of-the profession codes

2. State-adopted codes: it is the state-adopted code, not the ABA model that actually controls in the particular jurisdiction

3. 1997 review – goal of greater uniformity among states, 34 have considered these changes and revised

d. §s & CASE LAW:

i. Case Authority: in several ways, courts make the law governing lawyersàinterpretation of codes (make the law of lawyering in the same way as courts making law in interpreting §s) and inherent power to regulate lawyers

e. CONSTITUTION: constitution operates as an overriding element of the law of lawyering

i. Commercial Speech: lawyer’s commercial speech (advertising & solicitation of clients) is afforded considerable 1st Amend protection

ii. Speech Rights of Lawyers: 1st Amend provides some protection from regulation for lawyers called on to speak publicly for clients—1st Amend prevents punishment of lawyers despite violating disciplinary rule pertaining to extrajudicial statements

f. OTHER LAW:

i. Contracts: governs basis elements of A-C contractual relationship

ii. Torts: governs liability to clients for malpractice and to 3Ps for intentional wrongful acts and incompetence; also plays a major role in law of contingent fee arrangements

iii. Fiduciary Law: governs the special relationship & duties of lawyers to clients and certain other beneficiaries

iv. Agency: governs and informs much of the A-C relationship, with lawyer acting as the client’s agent

v. Criminal Law: governs lawyer criminal liability not only for the lawyer’s individual acts, but also for possible liability as an accomplice/conspirator with client engaging in criminal conduct

vi. Procedural Law: criminal/civil procedural law governs lawyer conduct—especially rules that implicate the imposition of court sanctions for various lawyer conduct

vii. Antitrust: governs bar association efforts to restrain trade

viii. Administrative Regulations: tax, banking, securities, environmental, and occupational safety regulations governs lawyers in special ways

ix. Employment Law: apply to law firm employment of lawyers—employment discrimination laws

II. Controls on Lawyer Conduct

a. DISCIPLINE= imposed for the protection of the public generally and for the benefit of the profession—imposed for violations of the ethics code rules; acts involving moral turpitude; criminal conduct; dishonesty, fraud, and deceit; and acts that are prejudicial to the administration of justice

i. GROUNDS FOR DISCIPLINE:

1. Violation of Adopted Ethics Code: lawyer is subject to discipline when violating a mandatory rule of the relevant state’s adopted ethics code

2. Acts Indicating Moral Turpitude: no longer the explicit standard under the MR (see 8.4) but moral turpitude language finds its way into court decisions, especially sexual misconduct by lawyers, applying MR 8.4à”reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects”

3. Criminal Conduct: minor criminal conduct that says little about the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects will not subject the lawyer to discipline; HOWEVER, even criminal conduct outside the role of lawyer that reflects adversely on his fitness will subject him to discipline

4. Dishonesty/Fraud/Deceit: acts, whether in or out of the lawyer’s role, that involve dishonesty/fraud/deceit, even if not rising to the level of criminal conduct, subject him to discipline [MR 8.4(c)]

5. Conduct Prejudicial to the Administration of Justice: broad, catch-all category including various forms of misconduct which is also prohibited by more specific rules [MR 8.4(d)]

a. Litigation Conduct: most often invoked to discipline conduct that is regarded as tactically out-of-boundsàdisregarding court orders, rude conduct in open court, being intoxicated in court, paying witnesses to engage in inappropriate conduct, etc.

ii. FORMS OF DISCIPLINE:

1. Disbarment: an indefinite dismissal from the rolls of lawyers licensed to practice in the particular jurisdiction—most serious form of discipline and often effective ends a lawyer’s legal career

2. Suspension: fixed-period revocation of the license to practice law

3. Reprimand: a statement of reproach issued by the bar to the lawyer—may be either private or public

iii. DISCIPLINARY PROCEDURE: each state maintains its own process by there are many common features

1. Complaint: initiated by filing a complaint with the bar disciplinary authority

2. Investigation by committee: usually a local committee made up of members of the bar in the locality in which the complained-of lawyer practices who decide whether, if true, the allegations constitute misconductàthe process is designed for internal regulation of lawyers so when a complaint is dismissed, the complaining party has no right of appeal

3. Hearing committee: a lawyer appointed by the state bar presents evidence against the accused lawyer; no right to jury trial; bar bears the burden of proving allegations; accused lawyer has a right to be heard; and at the conclusion, the hearing committee will either dismiss the complaint or impose sanctions

4. Review by appeal board: if hearing committee has imposed sanctions, the lawyer may appeal to an internal bar appeal board

5. State court of last resort: (usually state SC) lawyer bears burden of showing that the bar’s actions were unwarranted

6. Due process: lawyer is entitled to DP in disciplinary processes

7. Mitigation: consider a broad rand of circumstances when considering sanctionsàlawyer’s past record of bar complaints/discipline, lawyer’s attitude during proceedings, evidence of rehabilitation, lawyer’s personal problems, and the state of mind of the lawyer when the violation was committed (i.e. whether the act was intentional, negligent, done in good faith, vindictively motivated, etc.)

b. MALPRACTICE: a tort or contract based civil action meant to compensate victims of a lawyer’s negligence or contract breach

i. Breach: lawyer must breach the duty owed to his client—falling below the applicable standard of care

ii. Causation: lawyer’s breach of duty must cause the client’s damages—case within a caseàclient must often prove that he would have prevailed in the matter but for the lawyer’s breach of duty of care

c. LIABILITY FOR CLIENT CONDUCT: lawyers are prohibited from “counseling a client to engage or assisting a client in conduct that the lawyer knows is criminal or fraudulent” [MR 1.2(d)]

d. CONTEMPT OF COURT: gives judges reasonable control over the courtroom and to enforce standards of courtroom behavior among litigants [applies equally to attorneys, clients, and spectators]àdraws the line between zealous advocacy & obstructing administration of justice

i. A last resort: contempt power is meant to be used as a last resort to police in-court lawyer conduct

ii. Disruption of the proceedings: contempt should be exercised only when the lawyer’s conduct has an actual disruptive effect on the proceedings

1. Thoreen: A substitutes a look-alike for criminal defendant and dresses him up in order to confuse the prosecution’s sole eye witness

a. Issue= can A be held in criminal contempt?

b. Holding= for criminal contempt A must have requisite INTENTàknew/reasonably aware that he’s exceeding outermost limits of his proper role & hindering rather than facilitating the search for truth…satisfied here because:

i. Substitution was w/o permission or prior knowledge of court/counsel

ii. Identification issue did not exist in this case

iii. Disrupted trial

iv. Deceived the court

v. Violated court custom

c. Note= when close call between zealous advocacy & actual obstruction, doubts resolved in favor of zealous advocacyàbut here A’s conduct harms rather than enhances his effectiveness as an advocate

2. Simac= unlike Thoreen, A acted spontaneously on a single day, never misrepresented the person, didn’t dress up defendant or dress down stand-in, identification was not an irrelevant issue, BUT the big problem was that A failed to inform the court in advance of his substitution

3. Miskovsky= court found no fault in A’s use of a substitute for defendant, the contempt was based solely upon A’s failure to inform the court

iii. Direct/summary contempt: relates to conduct that is w/in the personal knowledge of the judge, it occurs in his presenceàjudge may act immediately and w/o further hearing to punish

1. In re Kunstler= A held in contempt for telling J he is a disgrace to the bench

a. Dissent= summary contempt ONLY where A: (i)disrupted hearing; or (ii)interfered with court’s calendar

2. In re McConnell= SCOTUS says no summary contempt UNLESS A creates an obstruction blocking J in performance of his judicial duty

3. Standards for contempt based on A’s words vary greatly by jurisdiction, court, and circumstance…significant factors:

a. Whether A was making a GOOD-FAITH effort to make a clear record so that appellate court could rule later on the disputed issue

b. Manner & means of presentation

c. If J can rationally call it “disrupting the administration of justice” it’s likely contempt will stand

i. Barry P. Wilson= because A’s motivation for his loud & abusive outburst was his desire to get a juror excused the court held him in contemptàthat may have been the factor that put it in the “disrupting administration of justice” category

iv. Indirect contempt: occurs outside the presence of the judge (e.g. tampering with jurors/witnesses)àDP requires that the lawyer be given notice and an opportunity to be heard

v. Sanctions: when judge finds a lawyer to be in contempt of court, he may admonish the lawyer or impose fines/imprisonment

e. DISQUALIFICATION MOTIONS & OTHER LITIGATION-DRIVEN CONTROLS

i. Disqualification for COI: when a lawyer perceives that an opposing counsel may have COI in litigation, the lawyer may request that the court disqualify opposing counsel from further participation in the case

1. Other interests: because litigation consequences are at stake instead of lawyer disciplinary consequences, courts take into account interest in addition to the typical COI concerns

a. Court interests: courts consider the delay and court inefficiency in determining whether to grant disqualification motions

b. Equity: courts consider whether the moving party has made the motion promptly after learning of the grounds for the motion or has instead waited until close to trialàin extreme cases, the moving party may be found to have intentionally created the conflict for the opposing party’s lawyers

c. Client choice of counsel: courts consider the fact that clients who have presumably retained their counsel of choice are disadvantaged, usually w/o fault, when a disqualification motion is granted

ii. FRCP 11 (and its state law counterparts): impose possible money sanctions (which may be imposed on both the lawyer and his firm) against an offending lawyer for violating frivolous claim prohibition rules—generally when a lawyer violates FRCP 11 he is also subject to discipline under MR 3.1

1. Claims that lack a basis in law or fact:

a. Law basis: a claim that lacks arguable merit under existing law and lacks a good-faith argument for an extension or modification of existing law is frivolous and exposes the filer of the claim to sanctions

b. Duty to investigate: a lawyer is obligated by FRCP 11 to make a reasonable fact investigation before filing a claim and determine that there are reasonable factual grounds to support the allegations in the complaint

2. Safe Harbor: before filing a FRCP 11 motion, notice must be given to the alleged offending lawyer—a warning period of 21 days must pass after notice before the motion may be filedàduring that period, the offending lawyer may take actions to eliminate the violation (i.e. withdrawing or amending the claim)

III. A-C Relationship

a. Duty to Undertake Representation: in general, lawyers have NO DUTY to undertake a particular representation

i. Limited Duty to Accept Representation:

1. Rule 6.1 – encourages at least 50 hours of pro bono service each year

2. Rule 6.2 – court can appoint defense attorney and lawyer shall not refuse unless good cause (overloaded, morally repugnant, can’t represent competently)

b. Duty to Reject Representation: unlike the general rule that a lawyer has no duty to accept every client’s matter, lawyers are prohibited from accepting—must reject—representation in several different situations

i. Rule 1.16—lawyers MUST reject representation in several situationsàwhen accepting representation will violate an ethics rule or other law

ii. Rule 3.1 – lawyer MUST decline representation when the client’s claim or legal position is FRIVOLOUS or when the client’s purpose is merely to HARASS someone

iii. Rule 1.1 – lawyer MUST decline representation when he lacks the

“prospective client” (comment 2)

Accidental & Limited Clients & Others who may be owed a duty:

r Accommodation Clients: an added person/entity being represented by A along with A’s regular C, usually for a limited scope & no extra chargeàworking for both clients avoids duplication; most courts say that they’re clients because a “client” is not a first or second-class client, but just a “client” in all respects

r Self-Help Services

r Unbundled Services: providing limited legal services that cover only part of a client’s overall needs, often w/o A ever formally appearing in court; some states’ ethics rule explicitly allow unbundling in situations such as preparing papers but not going to court

r Ghostwriting: writing pleadings for pro se litigantsàABA says ghostwriting lawyers don’t have to disclose their involvement because it is not material to the merits of the litigation

r Duties to 3P Non-Clients: courts allow beneficiaries of wills to sue for malpractice

i. RETAINER AGREEMENTS & SCOPE OF REPRESENTATION:

i. Even if not required, make a written K

1. Protects C by clearly spelling out ambiguities

2. Protects A because courts resolve swearing contests against lawyers

ii. Agreement should state the manner of compensation + scope of representation

1. For malpractice purposes, it is almost always the REASONABLE EXPECTATIONS OF THE CLIENT that determine the duties of A (especially in terms of scope of representation)

r Unsophisticated parties: Several cases indicate that courts will find a duty to inform beyond the scope of representation:

In Nichols v. Keller (Cal. App. 1993), plaintiff hired attorneys to pursue a workers’ comp claim. They did not inform him of possible tort claims. “Generally … a WC attorney should be able to limit the retention to the compensation claim if the client is cautioned (1) there may be other remedies which the attorney will not investigate, and (2) other counsel should be consulted … However, even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent.”

N Sophisticated parties might not be so lucky (AmBase v. Davis Polk)

j. FEES:

Rules on Fees: The basic principles are prescribed in Rule 1.5—

r L may not make an agreement for, charge, or collect an unreasonable fee. Consider—

r Time and labor r Novel/difficult questions r Skill required

r Likelihood, if apparent to the client, of precluding other employment

r Local custom r Amount involved and results r Time limitations

r Nature and length of the professional relationship with the client

r Experience and reputation of the lawyers r Fixed or contingent

This rule can encompass some rather large fees. See Brobeck v. Telex (arms’ length negotiation, even for a giant fee, is undisturbed by the courtàfairness of fee arrangement is determined PROSPECTIVELY by the court; Telex should’ve known better—not ignorant nor did they have inferior bargaining power). Note this was a case about unconsionability in contract law.

r Communication requirements (Rule 1.5(b)) (“preferably in writing”)

r Contingent fees are permissible, must be in writing. Exceptions—

N Domestic relations matters N Criminal cases

The fee must still be reasonable. Consider the likelihood, time involved, size of recovery, amount of work, and size of the lawyer’s percentage.

r Fee Splitting: Dividing fees is permissible AMONG LAWYERS only if (need all)—

r Proportionate to services rendered, or each lawyer assumes joint responsibility

r Client agrees, confirmed in writing r Total fee is reasonable

N Fees may NOT be shared with non-lawyers except under limited circumstances as it compromises A’s independence and injects into A-C relationship the interests of someone who is not bound by the ethics code

r Lawyer’s estateàfees may be paid into A’s estate or as a death benefit r Retirement plan

N Unethical fees may be reduced or denied by the court (e.g., Kaplan v. Pavalon (7th))

Special fee agreements:

r Nonrefundable retainer fee agreements: Two approaches—

N Categorical ban (Cooperman)

r Acceptable if reasonable fees, sophisticated parties, clear provision, or L has changed position to accommodate client (McQueen v. Citgo).

r General retainers: Client pays a fixed sum in exchange for the promise to perform any legal services that arise during a specified period. (Brickman and Cunningham). Others define the term as a payment for mere availability. (Dowling v. Chicago Options)

r Minimum fees: May provide that the lawyer will be paid on an hourly basis, but anything under a certain number of hours will be charged at the minimum.

r For any advance, a lawyer must return any unearned portion (Rule 1.5, ¶4)

N Minimum fee schedules, adopted by a bar association, violate the Sherman Act (Goldfarb)

N Fee forfeitureà§s provide that lawyers’ fees that are paid by clients from crime proceeds may be forfeited to the government

Court-Awarded Fees

r Fee shifting cases often take lodestar approach (hours reasonably spent x reasonable rate)

r Class actions may either—

r Award a percentage of the recovery

r Apply lodestar with a “risk multiplier” reflecting the risk of loss for skillful work

r Use lodestar without multiplier (Goldberger (noting there was no particular risk))

r Federal courts do not abuse discretion by accepting a settlement agreement in civil rights case that required a fee waiver (Jeff D.).

[1] A lawyer may condition conversations with a prospective client on informed consent that no information released will prohibit the lawyer from representing a different client. Comment 5.