Professional Responsibility
INTRO –
Intro:
Key questions are policy/moral questions.
3 main concerns:
1. Lawyer as practitioner
2. Lawyers as a person –
3. Lawyers in system – PP – how they should be expected to act, how should rules be reformed.
History of the Rules:
àPre 1887 – pr was about how people acted in a gentlemens profession, be loyal, etc. but these rules weren’t enforceable.
à1887 Ala Code drafted a code
àABA Canons Code of Ethics followed closely the AL code – states either adopted them or nothing at all. Discipline wsa enforced on lawyers but more by state scs.
à1969 Code of PR – change, b/c demography of bar changed – more people entered legal profession like minorities, women. Civ Rights movement began to have diff view of what law should do, challenging establishment, which was distasteful to trad bar. So CPR said that we have to legalize what lawyers can do so this change can be kept under control. CPR was much more specific than the 1908 Canons. You could be disciplined for things. It was clearer. It addressed more difficult sits. CPR adopted by 49 states. (CA didn’t adopt).
-à After adoption of 1969 code, divisions started. Legal services, L C confidentiality were two of these divisive issues, so ABA appointed a commission to review + to propose changes.
à 1983 – Model Rules of Prof Conduct were adopted with some signif changes. Response to this was not as unanimous as 69. States split, some took CPR, some took Model Rules, some split with both, etc… (but eventually about 45 states gravitated towards this, but CA went own way)
àEthics 2000 project – looked at rules to see if things should be changed.
à around the same time, the Restatement by American Law Institute suggested that this view of the rules as being the only control of lawyer behavior is wrong. (because there are other constraints on lawyer behavior besides the rules). ALI said you should talk about the whole law governing lawyers. It made a change for the NPRE in that now we’ve got to look at everything that regulates lawyers, which creates a problem.
à 2002 Model – new model rules revised things a lot, but it was all under same format. You have rules + comments. Adopted in 02, but there were two areas where they couldn’t reach agreement – 1) confidentiality 2) lawyers in + for corps. (rat – hope for uniformity)
à2003 Revision – Eventually aba came up w/ new rules re these 2 subjects. (rat – uniformity)
à Today – this is where we stand with the exception of CA.
Do the rules have to do with ethics? A little. They try to tell you what ABA thinks how a lawyer should operate in ordre for the system to work in its intended fashion.
– i.e. you know someone has cheated someone else. You shouldn’t tell in most jDs if you’re a lawyer.
Do the rules have to do with moral behavior?: Yes, moral behavior for lawyers. There may be addtl considerations that lawyers hve to take into account that others might not have to deal with.
What codes must we know?: FOCUS ON 2002-2003 MODEL RULES + A LITTLE ON CA.
Why do people hate lawyers?:
· people are dependment upon them
· litigation has no winners
different contexts call for different approaches from lawyers, but the rules don’t really do this. Should the code be written in a content specific fashion? This would be hard but possibly beneficial.
What do we mean by legal ethics + why follow model rules at all?: involves some conflict of loyalties/interests. + the inquiry is how do lawyers resolve that. Lawyers naturally turn to the ethics code, but they might not be the most important place to turn to because the model rules have no force of the law. The model rules just have some instructional effect. Only the state’s professioanl code is law (subject to state SC).
HYPO – you represent president of a company who is involved in organized crime. What do you do?
Ask yourself can you get into trouble for this,
asking yourself about confidentiality,
maybe look at the state code,
You might be criminally liable – look at the criminal law to see if you can get in trouble that way.
Disclosure to cops might cause you to lose credibility with future Cs + with your partners.
You might be civilly liable (C could file malpractice suit, breach of contract, breach of fiduciary duty)
HYPO – If other side says I demand to know what your C said – evidence code determines what he’s entitled to.
HYPO – What if the judge asks you to disclose? You have to figure out contempt/sanction rules + how those mesh with the confidentiality rules. See if theres wiggle room.
POINT: codes aren’t only what constrains you as a lawyer (theyre the first thing you look at). There are many other constraints (econ, reality check, liablitiy + discipline considerations, + qs of whats right + wrong)
Control of Quality: Remedies for Professional Failure
A. Malpractice + Breach of Fiduciary Duty
Malpractice: if its tort action its negligence, if it were K, it’s breach of warranty. Why does it matter which one?
· SOL,
· the remedy,
· for who can sue. (whether its characterized as tort or K can make a big difference)
1. Liability to Cs
· Standard: Did you act in the rnage of activity that an ordinarily prudent lawyer would?) (Togstad – C successfully sued L for legal malpractice, even though she had not formally retained him.)
· Rule: In a legal malpractice action of this type, 4 elements must be shown:
1) than an AC relationship existed;
2) That D acted negligently or in breach of K;
3) That s
cept this defense
o Most jDs – do not accept this defense b/c under 3rd party analysis, the K creates a “duty” not only to the promise, the C, but also to the intended beneficiary, negligent nonperformance may give rise to a negl action as well.
o Liability may turn on whether P sues in tort or K.
· i.e. Opinion letters – C asks L to express legal opinion in order to induce 3rd party to take action – claims for negl misrep have been upheld if L’s opinion is a product of negl.
4. Vicarious Liability – Law partners, like other partners, are responsible for each other’s professional failures w/in the scope of legal partnership. Whether lawyers who are shareholders in a prof corp are vicariously liable for defaults of their co shareholders generally depends on the jD’s corporation law. Dominant view – co shareholders aren’t vicariously liable by virtue of status alone (Vanderhoof v. Cleary)
· LLPs – work like ordinary partnerships except that partners are personally liable only for their own prof negl or breach of duty + potentially liable for similar conduct of lawyers they supervise. The partnership, as an entity, remains liable for the malp of any of its lawyers.
B. Proving Malpractice
1. Use of Ethics + Expert Testimony – Cts are split on on whether they’ll allow use of codes as expert test to be used as a standard in malpractice actions. –
· Some cts – wont allow any reference to ethics codes (only standard is “orindarily prudent lawyers”)
o We don’t want lawyers setting their own rules.
· Some cts – Rules of professional Conduct may be relevant in establish legal malpractice (if theres expert there). (Smith v. Haynsworth)
· Other cts – code is largely dispositive. Rely on code. Violation malp per se.
2. Expert Testimony: RULE:There is an exception to rule of a need for expert testimony where the claimed legal malpractice is so gross or obvious that laymen can rely on their common knowledge or experience to recognize or infer negligence from the facts. (Wagenmann v. Adams)
Rationale for Expert Testimony Rule:
Reason for a rule saying you must have expert testimony – 1) juries don’t like lawyers so putting in expert is a way to have a sympathetic view towards them.
