PROBLEMS IN PROFESSIONAL RESPONSIBILITY OUTLINE
Professor Robert Wilcox
a. Professionalism is an aspirational standard.
i. The rules only set a minimum requirement.
b. Characteristics of a Professional
i. Education, Knowledge, and Skills Requirement
ii. Fiduciary Concept – Self-interest subliminated
iii. Public Trust
1. Unique aspect of the legal community.
2. View of the public and concerns of lawyers disciplining lawyers.
c. Lawyer’s Duty in the Adversarial System
i. Who do you owe a duty to?
2. The Profession
3. Opposing Counsel
4. Other Parties
5. The Court
ii. Rules are in place to govern conduct within the adversarial process (e.g., FRCP, FRE, etc.)
iii. How do you balance the duties?
d. Rules of Professionalism
i. Adopted and governed by the State’s highest court.
1. Model Rules were created by ABA.
ii. Ethics Advisory Opinions
1. Issued by the bar that are persuasive responses to prospective professionalism questions.
e. South Carolina Oath
i. Heavy emphasis on the “civility” section.
1. Issues: Too vague? How do you define it? Constitutional issues? Justification of discipline versus duty to “zealously represent your client.”
2. Court reasoned that this could impair and interfere with coming to a satisfactory resolution that may affect the goal of justice.
f. General Overview of Standards on Professional Responsibly
i. 1’s – Duty to Clients
ii. 2’s – Roles of an Attorney
iii. 3’s & 4’s – Duty to Others
iv. 5’s – Business Aspects
v. 6’s – Public Service
vi. 7’s – Advertising
vii. 8’s – Discipline
II. PUBLIC SERVICE (6’s)
a. RULE 6.1: VOLUNTARY PRO BONO SERVICE
i. This is a responsibility, not a mandate.
1. “A lawyer should aspire to render…”
ii. No disciplinary arm
b. RULE 6.2: ACCEPTING APPOINTMENTS
i. “Shall not seek to avoid an appointment except for good cause.”
1. 6.2(c) – “REGPUGNANT EXCEPTION”
a. “So repugnant to the lawyer as to likely impair the client-lawyer relationship or ability to represent the client.”
i. Focus could be on whether the attorney could provide fair representation (example: Sexual assault victim representing an accused rapist).
2. S.C. Rule of payment for services.
a. Appointments are now viewed as a “taking” and the attorney must be reasonably compensated for their services.
III. DISCIPLINE (8’s)
a. RULE 8.1: FAILURE TO DISCLOSE ON BAR APPLICATION
i. Knowingly making a false statement regarding past criminal offenses, substance abuse, etc.
1. Requires the attorney to take responsibility for their actions. See In re Chapman.
b. RULE 8.3: DUTY TO REPORT
i. Duty to report kicks in only if an attorney/judge has “knowledge” of conduct that raises a “substantial question” as to the attorney’s “honesty, trustworthiness, or fitness of lawyer.”
1. Exception: Does not require disclosure of info otherwise protected. (8.3(c)).
c. RULE 8.4: CATCH ALL RULE
i. Professional misconduct to attempt/violate rules, commit criminal act regarding honesty, engage in conduct involving deceit, conduct that is prejudicial to the administration of justice (catch all), etc.
d. RULE 8.5: CHOICE OF LAW PROVISION
i. Rule of the state where the conduct is committed governs the disciplinary action.
IV. BUSINESS ASPECTS (5’s)
a. RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS & SUPERVISORY LAWYERS
i. Have an affirmative duty to implement the following:
1. Effect appropriate compliance measures to ensure other lawyers in firm are conforming to the rules of professional conduct;
2. Those with direct supervision over other lawyers have a duty to ensure other subordinate lawyer is conforming to the rules of professional conduct;
3. Lawyer shall be responsible for the violation of the rules by the other lawyer if
a. He orders or with knowledge of specific conduct ratifies;
b. Or knows that such conduct is on-going.
b. RULE 5.2: RESPONSIBILITIES OF SUBORDINATE LAWYERS
i. If acting in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty – The Subordinate Lawyer does
i. Who is the client? (example: Executor versus Testator)
1. Solution: written retainer agreement that identifies the client and the scope of representation.
ii. Can conduct alone create the relationship (Implied)?
1. Issue arises when attorney answers personal questions rather than general opinions of law or general legal advice.
2. Note: Need not be paid for the relationship to solidify.
a. Based on the belief of the reasonable client; NOT the attorney’s assessment.
3. Test for Implied Relationship
a. Person seeks advice or assistance from an attorney;
b. Advice sought pertains to matters within the attorney’s professional competencies;
c. Attorney gives the desired advice or assistance; and
d. Subjective belief of the client that the relationship existed.
i. Burden is on the attorney to make sure intentions are clear.
1. Assent or manifest a lack of consent.
e. Questions for the test: Did they seek legal advice? Did you give legal advice? Did they rely on that advice? Were “confidences” shared?
b. RULE 1.2: SCOPE OF RELATIONSHIP
i. Lawyer may limit the scope of the representation if:
1. Limitation is reasonable under the circumstance; and
a. Reasonableness determined by analyzing the services provided to see if they can be “unbundled” in an appropriate way.
i. Example: Divorce/Tax issues rather than Cross/Direct examinations.
b. Note: Rule 2.1 – Attorney as an Advisor
i. Lawyer may render advice outside the strict realm of the law/legal world.
2. Client gives informed consent.
ii. Decision-making and Allocation of Authority
1. Lawyer must abide by the client’s decision concerning the objective of the representation and will consult with client as to the means by which to pursue those objections.