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Professional Responsibility
University of Oklahoma College of Law
Scaperlanda, Michael A.

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

· 8.4(c):

· 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

· Competence

· Ethical rules/Bar discipline

· Malpractice

· Fiduciary Duty

· When does it begin?

· What does it require of Arthur?

· Full Disclosure

· Of inexperience

o Be upfront and honest about it

· Learning

Rule 1.1

· A lawyer shall provide competent representation to a client.

· Competent representation requires the

· legal knowledge

· skill

· thoroughness and

· preparation

· 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

· Exercise

· 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

· Confidentiality

· Loyalty (conflicts rules)

· Malpractice

o Can Olive sue Alice for malpractice?

§ Yes. Willing to take the case, anyways.