Prof. Chambliss – Fall 2014 – Professional Responsibility
I) Chapter 1: creating and maintaining a profession
a) Lawyer’s prescribe to a higher set of standards than other professions in order to protect the a-c relationship
b) Powell – lawyer’s “terrible burden” – The conflicts b/w one’s moral views and the profession’s views.
c) The four protected classes: clients, court, public, profession
II) Ch 2 -The gates to the profession
a) Becoming and being a lawyer: requires passing 1) graduation from law school, 2) bar exam (also often the MPRE), 3) character and fitness test.
b) Rules governing competence
i) R 1.1 – “A lawyer shall provide competent representation to a client. Competent rep requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the rep.
c) Punishments to a lawyer:
i) Disciplinary authorities: disbarment, suspension, interim suspension, probation, monetary fines, public reprimand, community service, continuing legal education, private reprimand, warning.
ii) Malpractice claims, lose clients, bad press/image
III) Ch 3 – Admission to the bar
a) Character and fitness test – ultimate standard: has the applicant demonstrated current fitness to practice law.
i) In Re Mustafa – Because of the relatively short period of time since the date of his misconduct (writing checks on moot court checking account), Mustafa has failed to show that he has the good moral character required for admission to the Bar.
(1) Rule of thumb: The time of rehabilitated behavior ought to be at least as long as the duration of the bad conduct.
ii) MBS – MBS is denied acceptance on the bar b/c he just recently conformed his behavior to appropriate standards. He has demonstrated a 13 year history of delinquency which cannot be erased in a couple years of community service and sobriety. Most disturbing is the shocking lack of honesty exhibited on his law school app and bar app because this goes directly toward your current fitness
b) Should lawyers educated outside the US be admitted?
i) Osakwe – Graduation from an ABA accredited law school is normally necessary to sit for the bar. Here, Osakwe is allowed to sit for the bar under the exception for foreign –trained lawyers: the board may permit graduates of law schools in foreign countries whose jurisprudence rests upon the common law tradition and who have had exposure to particularly American law. Law school is not simply meant to prepare one for the exam and the bar alone cannot substitute for the intellectual development and professional acculturation that form the basis of the legal education requirement.
IV) Ch 30 – Misconduct
i) R 8.4 – Misconduct. It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so,
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
(1) (c) Deceitful conduct is misconduct regardless if it violates the law. Only applies here in extreme circumstances that hugely pervert integrity of the deal; Puffery in negotiation is allowed.
(2) Lawyers can still be punished for misconduct occurring outside the practice of law. Lamberas case- LLM candidate plagiarized and tried to defend by saying he was not practicing law. Court says too bad.
(3) Whelan’s Case – Respondent let another lawyer at his firm draft a codicil to his client’s will giving the respondent the client’s real estate. This violated 1.8c, 1.10a, 5.1c2, and 8.4a.
(4) Wallace – An attorney repeatedly physically abused his girlfriend and was sentenced to 180 days in jail but only had to serve 10 days of it. He self-reported the conviction and admitted that his conduct violated R8.4b violation.
(5) Segretti v. State bar – Segretti worked on Nixon’s campaign and made false allegations concerning Nixon’s opponents. Court said R8.4c was violated. Held: 3 months suspension is appropriate. The attorney argues a private censure is appropriate. Note: aggravating and mitigating circumstances. He self-reported but is a repeat offender. Our primary duty in attorney discipline cases is to protect the public from unfit practitioners, and the respondent’s multiple acts of violence are indicative of a dangerous volatility which might well prejudice his ability to effectively represent his clients’ interest given the pressures associated with the practice of law. A private censure, b/c it does not inform the public about a lawyer’s misconduct, should be used only when the lawyer is negligent, when the ethical violation results in little or no injury to a client, the public, the legal system, or the profession, and when there is little or no likelihood of repetition.
(6) Oklahoma Bar Ass’n v. Sopher – Respondent attorney pulled up the blouses of two clients, mother and daughter. Court found R8.4d violated b/c clients are in a vulnerable position and exploiting them for gratification will not be tolerated. Also, engaging in a sexual relationship with a client undergoing a divorce may destroy chances of a reconciliation, and blind the attorney to the proper exercise of independent judgment.
(7) In the matter of Max K Walker Jr – Chief deputy prosecuting attorney slapped his girlfriend several times and pushed her daughter violating R8.4b & d. Respondent's position as an officer who enforces the law requires even stricter scrutiny of this conduct because of his capacity to damage public esteem for the system.
ii) Transvalue ethics- TRANS – (transparency, redundancy, accountability, notice, synchronicity) – Powell’s notion that we must be sure that people understand what the rules are before they can be held accountable. By structuring our environment differently, by removing all the indoctrination (rules) and promoting and teaching people how to think for themselves, we will ingrain ethics in lawyer’s values instead of just teaching them the rule. Moderman’s roundabout had no signs (took away all the rules, forcing people to think for themselves). Synchronicity- all parts work in congruence and reinforce each other.
iii) ABA’s theoretical framework for standards for imposing sanctions:
(1) What ethical duty did the lawyer violate? Duty to client, the public, the court, or the profession?
(2) What was the lawyer’s mental state? Did he act intentionally, knowingly, or negligently?
(3) What was the extent of the actual or potential injury caused by his misconduct?
(4) Are there any aggravating or mitigating circumstances?
V) Ch 31 – Reporting Misconduct
i) R 8.3 – (Squeal rule) Reporting professional misconduct. (a) A lawyer who has actual knowledge that another lawyer has committed a violation that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(1) Does not require disclosure of info protected by R1.6. R1.6 prevents disclosure if you learn about the lawyer’s misconduct in the course of representing that lawyer or another client that tells you about that lawyer. Cmt 3 – However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests. The lawyer has a duty when seeking consent to present the facts as plainly and clearly as possible, without coloring them.
(2) (SC might not require actual knowledge).
(3) Wieder v Skala (KNOW) – It is against public policy for a law firm to fire a lawyer for reporting or insisting that the firm report a disciplinary violation by another lawyer. Substantial, although not absolute, protection exists for those who report. Erecting disincentives to compliance with rules of professional conduct would subvert the central professional purpose of a lawyer’s relationship with the firm—the lawful and ethical practice of law/upholding the standards of the profession. R 8.3 is critical to the unique function of self-regulation. The court overturns the employment-at-will doctrine in this context so that lawyers cannot be fired for reporting.
(4) In re riehlmann – Lawyer’s colleague told him of a violation he committed but he didn’t report until years later when he was reminded. Once a lawyer has knowledge that misconduct has occurred (that which would lead a reasonable lawyer to conclude misconduct has likely occurred), a lawyer has a duty to report violations of the rul
n a person guilty of stealing a car doesn’t deserve 100 years in prison. Thus lawyers defend the guilty from abuses of power and unjust sentences. By competing with the prosecution, the defense lawyer helps define the precise evil that occurred so that the sentence correlates to the wrong.
VIII) Ch 15 – Disclosure
a) Disclosure of Adverse evidence in litigation
i) The model rules mandate disclosure in only four situations:
(1) R3.3a2 – A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
(2) R 3.3a3 – when the lawyer has offered false testimony and comes to know of its falsity, he must disclose if the false testimony cannot be corrected w/o disclosure.
(3) R 3.3b – Disclosure is required when a lawyer represents a client in an proceeding and knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding
(4) 4.1b – A lawyer must disclose when disclosure is necessary to avoid assisting a client’s crime or fraud and R1.6 does not prohibit disclosure. Cmt 1 – Misrepresentation – A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts.
(a) NY Lawyer’s association on professional ethics – Attorney for D knew of an eyewitness to the incident present in the court that the other side did not and failed to disclose to the court. Held: This was not improper conduct b/c, b/w two private attorneys, each has a responsibility to fight for their client and it was the P’s lawyer’s responsibility to discover the additional facts relevant. Policy: This upholds the integrity of the courts.
(b) However, the rule is different for Ps. P’s must disclose facts that would destroy their cases. R 3.1 – A lawyer shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for a modification of existing law.
(c) There is a special obligation imposed on the attorney in an ex parte proceeding: B/c the other party isn’t there to contradict, he must present both sides of the case fairly in order to let the court make the best decision. This is to prevent undermining the integrity of the court.
(5) NY Committee on Professionalism
(a) Issue: Whether it is a lawyer’s duty to tell his adversary of a computational error that resulted in a lower judgment amount to the other side and to consent on behalf of his client to modification of the judgment.
(b) Holding: Yes. When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps.
(6) ABA committee informal opinion – After a K has been completed and a lawyer discovers the other side left out a provision in a contract benefiting his client, the lawyer does not have to inform his client under R1.4 of the error and can tell the other side to fix it. There has already been a meeting of the minds, and this is only a scrivener’s error. The client does not have a right to take unfair advantage of the error. R1.2d, 4.1b, and 8.4c would be violated if the lawyer did.