Exam attack plan:
1. Issue spot/ find the rules it’s talking about.
2. find part of book it’s in and open to that for reference
3. read rules carefully: look for may v. shall, etc
4. apply each rule to the fact pattern (do all of step 3,4, 5 for one rule b/f moving to next rule)
5. argue both sides of each rule
6. mention any relevant cases/articles (if have time)
7. make a determination of outcome, if possible. If it’s not clear, say so.
How to write answers:
Start essay with “a violation of any rule is a violation or Rule 8.4.”
1) issues: (This scenario raises issues under Rule…, Rule…, Rule…, etc)
2) Rule 1….
Could argue A…apply rule to facts
Could argue B…apply rule to facts
Cases/articles
But probably … (pick A or B)
3) Rule 2….
Could argue A…apply rule to facts
Could argue B…apply rule to facts
Cases/articles
But probably … (pick A or B)
4) Conclusion
Introduction (1-17)
A. Ethics, morals, and Professionalism
B. Some central themes in the book
1. Conflicts of Interest
2. Truthfulness
3. Lawyers’ duties to clients versus their duties to the justice system
4. Lawyers’ personal and professional interests versus their fiduciary duty
5. self-interest as a theme in regulation of lawyers
6. lawyers as employees: institutional pressures on ethical judges
Chapter 2: Lawyer Liability (73-147)
A. Professional Discipline
1. History and process of lawyer discipline
2. Grounds for discipline
In re Peters: Rule- public reprimand for sexual harassment is proper.
a. lawyer may be disciplined for conduct that has nothing to do with the practice of law
b.lawyer can be disciplined for misconduct that took place while the lawyer was serving in an elected or appointed government position.
c. lawyer may be disciplined for committing a crime
d. lawyer can be disciplined based on the actions of an employee.
e. lawyer can be disciplined for something she does outside the state in which she is licensed to practice
f. if a lawyer violates a rule in a state in which he is not licensed, whether or not he can be disciplined by the authorities in that state depends on the ethics rules in that state.
g. if a lawyer is admitted to practice in several states but is suspended or disbarred in one of those states, the lawyer cannot continue her practice in the other states.
h. lawyer can be disciplined for engaging in discriminatory behavior
i. lawyer can be disciplined for conduct that occurred at law school (ie deans, professors)
3. Reporting misconduct by other lawyers
Rule 8.3: duty to report professional misconduct.
a. every lawyer in a state with a reporting rule must report serious ethical violations by other lawyers, even if the other lawyer is your boss (if the question raises substantial questions about the honesty, trustworthiness or fitness” of the boss).
Rule 5.1: responsibilities of partners, managers, and supervisory lawyers
Rule 5.2: responsibilities of a subordinate lawyer
a. lawyers are only partially responsible for each other’s actions.
b. In most states, only an individual lawyer, not the whole firm, may be disciplined for violations
c. the law provides protection for lawyers who are fired because they refuse to participate in unethical conduct or because they report misconduct of other lawyers to the disciplinary authorities
Kelly v. Hunton & Williams: Rule-A law firm breaches an employment contract with a contract employee when they fire the employee and won’t give him a good reference in order to keep that employee from reporting billing fraud.
B. Civil liability of lawyers
1. legal malpractice
a. elements of a tort claim of legal malpractice..client must assert:
– the lawyer owed a duty to the P
– the lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances (rest 52(1))
– the breach of duty caused harm to the P (rest. 48)
b. most common mistakes by lawyers that lead to malpractice suits are
-ignore conflicts of interest
– sue your former client for an unpaid fee
– accept any client and any matter that comes along
– do business with your client
– practice outside of your area of expertise
– grow too quickly
– settle a matter w/o client authorization
-fail to communicate with your client/do things in reasonable time. (biggest one)
c. lawyer owes to client fiduciary duties of –safeguarding the client’s confidences and property-avoiding impermissible conflicting interests – adequately informing the client – following client’s instructions- not employing adversely to the client powers arising from the client-lawyer relationship
d. if a lawyer is found to have owed a duty to a third person, and it’s shown that harm was caused by improper conduct by the lawyer, the lawyer might be found liable to the third person.
2. malpractice insurance
a. lawye
le v. Belge: Facts: A lawyer was told by his client that he killed a person and he told the attorney the location of the body. The lawyer went to the location and saw body and did not notify anyone. Issue: Did the lawyer violate any laws by not notifying authorities about the body?Holding: Unclear.
2. risk of future injury or death
Spaulding v. Zimmerman: lawyer doesn’t reveal info. Boy dies.
3. Client frauds and crimes that cause financial harm
Rule 1.2(d):Scope of rep. and allocation of authority bw client and lawyer
Comment 10:
a. fraud (1.0 d): conduct that is fraudulent under the substantive or procedural aw of the applicable jurisdiction and has a purpose to deceive.
b. rule 1.2 only prohibits assisting a client in conduct that the atty ‘knows’ is fraudulent.
c. atty can commit fraud by failure to act or by omission if the atty intended to deceive another person
Rule 1.6(b)(2)-(3): Confidentiality of info.
a. Sarbones-Oxley Act: relationship b/w 307 of SOA and rule 1.6- 1.6 broader than SOA.
Rule 4.1(b): Truthfulness in statements to others
a. Rules allowing or requiring revelation of criminal or fraudulent conduct: 1.2, 1.6, 4.1, 8.4, 1.13, 3.3, 3.4, 1.16
4. revealing confidences to obtain advice about legal ethics
Rule 1.6(b)(4)
5. using client’s confidential info to protect lawyer’s interest
Rule 1.6(b)(5)
a. if a lawyer is being sued for malpractice, he does not have to wait until the lawsuit is filed b/f he may reveal info to defend himself.
b. if a third party makes a claim a/g a client and the lawyer is accused of some minor role in the client’s misconduct, the self-defense exception will allow the atty to reveal confidences (chart p 207)
6. revealing confidences to comply with other law or court order
Rule 1.6(b)(6)
C. use or disclosure of confidential info for personal gain or to benefit another client
Rule 1.8(b)
Comment 5
a. a lawyer may use confidential info to benefit another one of her clients, so long as the first client gives informed consent or is not disadvantaged by the use of the information.
