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Professional Responsibility
University of South Carolina School of Law
Chambliss, Elizabeth

 
PPR CHAMBLISS FALL 2015
Introduction: What is a “Profession?”
·         A Little Theory
o   The law is highly stratified
§  Starts in law school – sorted into a highly stratified system based on our grades
§  The entire system is highly competitive with a ranking system
o   Functional & Critical Explanation
§  It’s better for society this way
o   What is a “profession”
§  Organized community / association based on claims of specialized knowledge & training (K) w/ exclusive right to certain kinds of work backed by political power (P)
·         Functional: K                P (knowledge leads to power)
·         Critical: P                 K (power leads to knowledge)
·         Monopoly
o   Any professional monopoly starts w/ some claim of specialized skill
§  Skill alone isn’t enough though, need gov’t backing AND your skill/talent must have some important function
o   US Lawyers Monopoly (a timeline)
§  British Roots – King’s Courts (1620 – 1770)
§  American Revolution – Deregulation (1770 – 1870)
§  Harvard Model – law as a science (1870 – 1950)
§  Monopoly over the practice of law (1930 – current)
o   The highest court in every state regulates what is “the practice of law”
§  UPL v. Parsons (1999)
·         Arguments for justifying monopoly/strict regulation:
o   Consumer protection
o   Court goes w/ fiduciary regulations v. market regulation
·         Arguments against it:
o   Restricts access to law
o   Market ramifications would be sufficient for consumer protection
·         Here, Forms + Instructions = UPL
o   This was later overturned, and most states no longer follow this
·         Liability
o   Fiduciary v. Market Models
§  Fiduciary
·         Based on idea of a professional relationship
·         Lawyer has unique expertise
·         Client lacks ability to assess
·         Consumer protection requires fiduciary duty/liability
§  Market
·         Lawyer has unique expertise; but allow the professional to be regulated by a market model
·         Client capable of assessing
·         Consumer protection requires information, disclaimers
o   Togstad v. Vesely (1980) (duties to perspective clients) – MR 1.18
§  Attorney is on the hook for legal malpractice for the initial consultation, even if lawyer doesn’t take on the client
·         Attorney-client relationship can still exist even if retainer isn’t paid
·         Lawyer owes a fiduciary duty to non-clients too
§  Elements of Legal Malpractice
·         (1) Duty
o   Lawyer owes a duty upon giving advice
o   And this duty extends to perspective clients
·         (2) Breach
o   Failure to perform minimal research before advising
o   Failed to advice on the statute of limitations
o   Standard is the “ordinary prudent attorney”
·         (3) Causation
o   “special verdict form”
§  Trial w/n a trial; court essentially tries the med mal claim b/c the SOL has passed
·         (4) Damages/Harm
o   In most legal malpractice cases, limited to economic harm
o   Would have won the med mal case but the lawyer cost her the opportunity
§  Practice Tip:
·         Have template letter for person to tell them to find other representation
o   Legal Malpractice Elements:
§  (1) Attorney-Client Relationship Existed
§  (2) D acted negligently or in breach of K
§  (3) Such acts were the proximate cause of P’s damages
§  (4) But for D’s conduct, P would have won the case
·         Overview of Professional Regulation
o   Five Things About the Legal Profession
§  (1) Its really big
·         26% of lawyers are in NY and CA
·         Only 10,000 lawyers practicing in SC
·         1.3 million lawyers in US
§  (2) Unified
·         In other countries, there are different schools and tests for different types of law
§  (3) Private
·         Over 75% of practicing lawyers in private practice in 2005
·         8% are in the private industry
§  (4) Corporate
·         Over 66% of private practice lawyers work for corporations / large organizations
·         So, most lawyers are serving organizational clients
§  (5) Bimodal
·         Two distributions for salary pre-2008
·         There’s another hump on the chart from those making big bucks in West Coast and NY
o   Ramifications for US Legal Markets
§  Market Segmentation
·         Market will continue to segment as global law increases
§  Deregulation
·         There are lots of competitors for lawyer’s jobs
 
The Model Rules of Professional Conduct
·         Introduction
o   History of Model Rules
§  Pre-1990’s: No model rule
·         Only court-by-court rules
§  1969
·         All about regulating advertising, they didn’t want low-class advertising
·         Canons (vague)
·         EC (less vague)
·         DR (disciplinary rules) – actual codified rules
§  Model Rules – 1983
·         All states have the numbering system
·         Has a rule / comment structure
·         Not fully enforced in any J/S
o   Why have the Model Rules?
§  Public Relations
·         Evidence of self-regulation
§  National Market for law
§  Standardization good for the legal profession
·         ABA can only model the rules, but cannot enforce them
·         Judicial branch in each states regulates its lawyers
§  Remember: the model rules regulates individual lawyers, NOT firms/entities as a whole
o   MR 1.1 – Competence
§  “a lawyer shall provide competent representation to a client…”
§  This is the argument behind all of our monopolization. We are competent to do this, and no one else is
§  Cmt 2
·         Low bar for competency. Competency of a general practitioner
§  Cmt 8
·         Must stay abreast of relevant technology
§  Preamble makes it clear that these model rules is NOT standard for civil liability
o   MR 5.1(a) – Law Firm Discipline
§  Law firm to make sure all its lawyers conform to the rules
o   MR 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law (MJP)
§  UPL state statutes regulate all citizens, whole MR regulate those practicing law
§  A & B all about keeping lawyers in their

igger duty to your client, so you don’t have to report it if it breaches that duty of confidentiality
·         Supposed to encourage client to give consent to report the misconduct here
§  Report to the state bar, do NOT go public w/ it
§  This rule does NOT apply to lawyer retained by another lawyer to represent him in a misconduct trial/hearing
·         Duty of Confidentiality
o   Policy
§  MR 1.6, Cmt 2
·         Encourage full and frank communications
·         To facilitate effective legal advice
·         To ensure protection of individual rights
·         And compliance w/ the law
o   Assumptions underlying this policy
§  People need lawyers to protect their rights; understand & comply w/ the law
§  Clients need full; & frank conversations w/ lawyers
§  Clients understand the rules (and limits) governing attorney-client communications
o   MR 1.6 – Duty of Confidentiality
§  Basically: a lawyer SHALL not reveal info relating to representation of a client
§  1.6(a) – Basic Duty
·         Covers all situations, not just trials & depositions
o   This duty last forever
§  1.6(b) – Exceptions to the rule
·         (1) to prevent reasonably certain death or significant bodily harm;
o   This is a MAY rule, so discretionary
·         (2) Client Crime or Fraud
o   MAY disclose only to prevent the client from committing a crime or fraud that is reasonably certain to result in a substantial injury to a 3rd parties financial or property interests
·         (3) lawyer learns of crime/fraud AFTER the fact
o   MAY report to rectify/prevent/mitigate substantial injury to 3rd party financial interest
·         (5) Self-defense of attorney
o   Lawyer can reveal information to establish a claim/defense when he is facing a malpractice suit from client
o   A lawyer can preemptively disclose if it looks like trouble is coming
o   Organizational Clients
§  1.6(b)(2) – (3) must be read w/ 1.13(b) & 1.13(c)
§  1.13(a)
·         Management is NOT the client – the client is the organization
§  1.13(b) – Reporting Up (MANDATORY)
·         Requires lawyer to report up within the client organization
·         Happens when you see someone doing something illegal w/n the corporation, duty to report up to someone higher in the company
·         Must report to Board of Directors, NOT CEO
·         Note: Note disclosure to the world, just to the client
·         Covers both in-house and outside lawyers