Professional Responsibility Outline

McGinniss PR Fall 2012

1. Regulations of Lawyers

a. Institutions that regulate lawyers

i. Highest state courts/Lawyer disciplinary agencies

ii. State and local bar associations

iii. Federal and state trial courts

iv. American Bar Association (“ABA”)

v. American Law Institute (“ALI”)

vi. Legislatures/Administrative agencies

vii. Prosecutors/Malpractice Insurers

viii. Law firms and other employers

ix. Clients

b. Ethics Codes

i. ABA Canons of Ethics (1908) (“Canons”)

ii. ABA Code of Professional Responsibility (1969) (“Model Code”)

iii. ABA Model Rules of Professional Conduct (1985)

iv. then….

v. Ethics 2000 Commission

vi. ABA Model Rules of Professional Conduct (2002)

c. Consequences of Professional Misconduct

i. Sanctions imposed by trial courts

ii. Disciplinary sanctions by state or federal courts of admission

iii. Civil liability (e.g., legal malpractice; fraud/breach of fiduciary duty)

iv. Criminal liability

2. Themes of PR

a. Conflicts of interest Confronting and resolving (as appropriate) conflicting obligations to two or more people, one of whom may be yourself….

b. Truthfulness – Duty of honesty and candor

c. Lawyers’ duties to clients vs. their duties to the legal system à “Client-centered”>>>SPECTRUM<<<“public-centered”

d. Lawyers’ personal & professional interests versus their fiduciary obligations

e. Self-interest of lawyers re: regulation à “Client-centered”>>>SPECTRUM<<<“lawyer-centered”

f. Lawyers as employees: institutional pressures on ethical judgments

3. Professional Discipline

a. Liability

i. Civil liability of lawyers

1. Legal malpractice

2. Elements of tort claim:

a. Duty to plaintiff

b. Breach of duty: (failure to exercise “competence and diligence normally exercised by lawyers in similar circumstances”

c. Breach of duty caused harm to plaintiff.

3. Malpractice Insurance – covers negligence not intentional action

4. Other civil liability of lawyers

5. Disqualification for conflicts of interest

ii. Criminal acts of lawyers à Felony for sure, but broad application à Rule 8.4(b)—”It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects

iii. Client protection of funds

iv. Summing up: What law governs lawyers?

b. History

i. State’s highest court runs disciplinary system.

ii. Generally a hearing committee staffed by volunteers accepts and investigates complaints determining which should be sent to the judiciary along w/ the committee’s recommendations.

iii. Generally, most complaints get dismissed.

c. Grounds for discipline

i. Model Rule 8.4 – – professional misconduct for a lawyer to:

1. (a) violate or attempt to violate the Rules of Professional Conduct. . . . knowingly assist or induce another to do so, or do so through the acts of another;

2. (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects

3. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

4. (d) engage in conduct that is prejudicial to the administration of justice….

ii. When – regardless of whether the violation happened in the course of practicing law

iii. Employee Action – can be disciplined for their employees’ actions in certain circumstances.

iv. Out State – Can be disciplined

1. Some states allow the discipline of lawyers committing violations in that state who aren’t licensed in that state.

2. licensed multiple st and get sanctioned in one, à must notify other states and they will decide whether/not sanction as well.

v. Illegal Discrimination – Some states discipline discriminatory behavior.

vi. Law School – Lawyers can be disciplined for their actions at a law school (even if they are not practicing law).

d. Reporting misconduct of other lawyers

i. duty to report misconduct – Rule 8.3 obligates lawyers report others serious ethical violations (but not all violations).

1. Mandatory – can be disciplined for not reporting – Himmel, NY “law firm rule” (latter holds entire firm liable 4 ethical violations)

2. Elements

a. Knowledge – actual – can’t have willful blindness

b. Seriousness

3. Limit – R. 8.3(c) – does not require disclosure of confidential material (Rule 1.6)

ii. Lawyer’s responsibility for ethical misconduct by colleagues and superiors – Rule 5.1 – 5.2

1. 5.1 – lawyers w/ authority positions in firms are obligated to ensure (reasonably) ethical compliance of other lawyers at firm &

a. may be held responsible if they order or ratify unethical conduct, or

b. had enough authority to know of such conduct and didn’t try to fix it.

2. 5.2 responsible for your own actions even if you were told to do something wrong, unless:

a. ordered to do something that seemed reasonable solution to ethical dilemma. à Do your research as to reasonable!

iii. Legal protections for subordinate lawyers

1. Some states have doctrines of protecting attorneys who insist on ethical behavior or report unethical behavior.

a. NY – not allowed to fire whistle blowers (Wieder decision)

b. IL – denied attorney’s relief for wrongful discharge (Jacobson case pg 114)

e. Must Discharge times

i. Violate professional rules of conflict

ii. Non-consent able conflict

4. Confidentiality

a. Protection – of “information relating to the representation of a client” – Rule 1.6

i. Allowed disclosure

1. unless client gives informed consent,

2. disclosure is impliedly authorized in order to carry out the representation

3. disclosure under 1.6(b)

ii. Revelation: includes info that could lead a 3rd party to discovering confidential info à i.e. Even the fact you are representing

iii. Application – Protection if:

1. reasonable prospect of harm to a client’s interests

2. Restatement has a lower standard of confidentiality so that you can reveal info as long as it won’t harm the client

3. Past criminal conduct

iv. Consequences – prof discipline, tort action (breach of duty), disqualification from representing client, prohibition by ct of further revelation.

v. Policy Reasons – clients need to be candid to have good representation, without being candid good rep. impossible

b. Exceptions 1.6(b)

i. Extent reasonably believes is necessary to:

1. (1)prevent reasonably certain death or substantial bodily harm àSome sts say disclosure is mandatory, others say permitted

2. Looking forward – (2) Prevent client from committing 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. Looking back – (3) prevent, mitigate, or rectify substantial injury to financial interests/property of another that reasonably certain to result/has resulted from client’s commission of crime/fraud in furtherance of which client has used lawyer’s services

ii. Client Frauds and crimes that cause financial harm –

1. Assistance – Rule 1.2(d) – prohibited from advising or assisting client’s crimes and frauds

2. Withdrawal and Notice – Rule 1.16(a) – must withdraw and/or give notice of any material lawyer previously submitted that was in furtherance of the crime/fraud

a. False Testimony – ABA, failure to disclose false testimony attorney has offered constitutes furtherance of fraud

b. Omissions and half-truths can constitute fraud.

c. Key stone = INTENT to deceive, or KNOWLEDGE of falseness

3. Revealing Confidential Information – Limitation of 1.6(2-3) – only reveal that which client has used your services – if they did something bad but didn’t use your services for it, à then you can’t reveal it

iii. Mandatory Disclosure

1. Rule 4.1 – In the course of representing a client a lawyer shall not knowingly:

a. make a false statement of material fact or law to a third person; or

b. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

2. Sarbanes-Oxley Act – requires lawyers who practice before the [Securities and Exchange Commission (SEC)]

a. report any information about securities fraud to the highest officials of the corporation

b. If the fraud is likely to harm investors, the reporting lawyer may (but is not required to) report the matter to the SEC”

c. also recommended to make a “noisy withdrawal,” but it is not required

iv. Civil and Criminal Liability – still subject if elect not to reveal confidences regarding client fraud

v. Ethics Advise – extent necessary to obtain advice about legal ethics is allowed– Rule 1.6(b)(4) –

1. Rule compliance is more important than client confidence

2. Revealing confidences is permitted to comply with other law or a court order – Rule 1.6(b)(6)

vi. Self-interests – allowed to disclose to protect lawyer’s interests – Rule 1.6(b)(5) à

1. only to the extent necessary.

2. 3rd party wrongdoer à still applies (ex: claim made by 3rd party rather than your client)

3. Applicable circumstances:

a. claim against client for unpaid fees

b. defense against claim of malpractice or other civil liability

c. defense in disciplinary proceeding

d. defense against criminal charge

vii. Consent – should inform your client before revealing the info à but client does NOT need to consent

1. Rule 1.8(b) allows this if you get your client’s consent & you are complying w/ the law.

2. Applicable for personal gain or to benefit another client, or to the disadvantage of your current client

5. Attorney-Client Privilege and the Work Product Doctrine – Ch4

a. Privilege vs. Confidentiality

i. privilege = evidence law / confidentiality = ethics law

ii. neither lawyer nor client can be compelled to testify in court about protected communications.

iii. Difference in scope –

1. privilege limited to client-lawyer legal advice/services communication;

2. confidentiality on the other hand is broad.

iv. Enforcement

1. privilege is a common law evidence rule (since Common law, dif in each state)

2. can use privilege to quash subpoenas

Type of Case

Privilege might be invoked as to arguably privileged material if:

Criminal

– Lawyer/client is subpoenaed to testify before grand/trial jury

– Client is cross-examined during a trial

– Client’s documents seized from lawyer pursuant to a search warrant

Civil cases and admin adjudications

– Depositions, interrogatories, or request for production of docs of lawyer/client

– Lawyer is called to testify before a judge/jury at trial

Legislative and admin investigations

– Lawyer/client is subpoenaed to testify before a legislative committee or an administrative agency

reporting statute appears to compel lawyer disclose info even w/o official request

– Lawyer seeks to avoid disclosure by preemptive proceeding (e.g. declaratory judgment or injunction) or invokes the privilege to defend against penalties for not having made disclosures

b. Elements of Privilege

i. Communication (between lawyer and client)

ii. Privileged persons

1. Includes: agents of lawyer (staff, etc.), interpreters, ppl present sake of psychological support (psychologist), parents of a minor

2. Prospective Clients – communication w/ a prospective client is privileged

iii. Communication in confidence – client must reasonably believe that the communication is confidential.

1. Fail: no privilege for communication that occurs in the presence of other people, such as in an elevator).

2. Application –both client and lawyer communication – (includes memos for self, client, or co-counsel)

3. Facts – client can still be compelled to testify about factual info à Documents/Evidence – evidence not privileged

a. docs given by client to lawyer are generally evidence (copies of a contract, will, etc);

b. docs that are communications for seeking legal advice (letters, memos, etc) are privileged

4. Client Identity – generally not privileged, but it can be

iv. Legal assistance – only privilege if for purpose of seeking legal assistance

1. Billing – not required

2. Conversation – o