Professional Responsibility – Scaperlanda 1/12/15 3:23 PM
Introduction to Professional Responsibility
· “Turning back the meter” set of questions.
· On slides.
· The Rules
· 1.2(d): a lawyer shall not assist a client in conduct the lawyer knows is fraudulent.
· 3.3(a)(1): A lawyer shall not knowingly make a false statement of material fact to a tribunal.
· 4.1(a): a lawyer shall not
· You are on 24.7. You can get disbarred for things not involving the practice of law.
· Often times there are no answers. Not a clear one, anyways.
· Family law and criminal law get a lot of ethics complaints.
· Reason: $$$$$
No Man is an island
· Overlapping moral communities
· Does defending those you know to be guilty?
· What about keeping clients secrets?
· Knows where the kid is that your client killed.
o Law makes you stay quiet.
· Society wants you to keep peoples secrets to yourself.
o Even tough secrets.
o You can harmonize this stuff.
· Kid was alive and in grave danger. Rules now allow you tell someone. They didn’t used to.
· If I can help save the kid, then it is different than if the kid is already dead.
Tensions in the rules
· Rule 9: “Virtually all difficult ethical problems arise from a conflict between a lawyer’s responsibilities
· To clients
· Get from slides
· How I practice law is important.
· Rule 2.1 Attorney as Advisor
· In representing a client, a lawyer
o Shall exercise independent professional judgment and render candid advise.
· In rendering advice, a lawyer may refer not only to law but to other considerations such as: moral, social, and political factors
· What are the hopes and desires of my heart that have called me to enter law school?
· Who am I becoming as a person as I enter more deeply into the life of the law?
· Begin with the End in mind?
· What do you hope to accomplish?
PROBLEM 1: pg. 41.
· Arthur Hollins – lawyer. advice and incorporation of small businesses.
· Arthur is minimally competent to take the personal injury case.
· We are going out there with minimal competence versus a doctor (residency)
· Do you charge for learning?
· Lower hourly fee.
· I would say no.
· Split the difference. Charge part for learning but if it’s taking me way too long then no.
Two Important Traits for Laywers
· Know what questions to ask, pg. 4, ***
· Know your own limits.
· Two stories
· Borrowing client’s money for weekend – know your own limits
· Assisting a friend in developing and financing a condominium project. – know what questions to ask
o Is this a security?
Three Concepts for Problem One
· Ethical rules/Bar discipline
· Fiduciary Duty
· When does it begin?
· What does it require of Arthur?
· Full Disclosure
· Of inexperience
o Be upfront and honest about it
· A lawyer shall provide competent representation to a client.
· Competent representation requires the
· legal knowledge
· thoroughness and
· Reasonably necessary for the representation
· Can be achieved through preparation and studying of materials.
Comment 1, Rule 1.1 – slideshow
Comment 2, Rule 1.1
Rule 1.5(e) – Division of fees.
· Basically prohibited if of different law firms unless 1) fee is proportional to work done, 2) client agrees, 3) total fee is reasonable.
· Practice question 1: I picked B. Professor would go with B.
· Exercise independent judgment. Sally cannot consent to your incompetence.
PROBLEM 2: MUST WE TAKE THIS CASE?
· Law firm represents clients on first amendment law.
· Maybe it’s about the 1st amendment.
· Gotta consider the business of the law firm and Dean’s political career.
· Maybe have a Jewish person represent it.
· Depends on what your identity is.
· Fighting for 1st amendment, not their views.
· Would hope the financial concerns could be overcome and recruitment.
· No rule that says you have to take a case.
· Numbers changed from No to Yes pretty drastically.
· You are not required to take every case but when you assume representation, it becomes your duty to finish the representat
– unless acting ethically is habitual for you.
· Good lawyer needs 3 things
· Religion – believe in something greater than yourself.
· Good friend who wants your good that fights with you.
Practice question: I put C because it is court ordered. C is the correct answer.
· One of the tricks of MPRE. They offer distractors that are right if the question is different.
PROBLEM 3: TAKING ON A CLIENT AND GETTING PAID
Question Set #1: Alice Tennant and old friend, Olive re: real estate
· 1. No, there was no atty – client relationship.
· Prof goes with Yes.
o Shes been given advice. “Don’t be underinsured”.
o “We all ought to treat this as “yes” just in case.
· 2. I think so. I mean she could have set up an appointment to have a face to face meeting and discuss maybe establishing a atty-client relationship. She also could have gave Olive advice and told her to hold off and have the spots inspected or to not enter into it.
· 3. Nope.
· 4.a. No, even if Olive wasn’t her client because Olive told her confidential information (her knowledge of the spots).
· 4b. She could sue but she would lose.
· 5. I don’t think so. I’m not sure what that changes.
· When does the Attorney-client relationship begin?
Kurtenbach Test for establishing lawyer client relationship
· 1) Did the client seek advice from the lawyer?
· 2) Was it within the lawyer’s area of competence?
· 3) Did the lawyer, either directly or implicitly, agree to give the requested advice?
Relationship for different purposes
· Loyalty (conflicts rules)
o Can Olive sue Alice for malpractice?
§ Yes. Willing to take the case, anyways.