University of South Carolina
A. Ethics, morals, and professionalism
v Why study the law that governs lawyers?
Ø It will help you stay out of trouble
Ø You can know when your opponent is doing something wrong and not let it hurt your client
v Why study the history and sociology of the legal profession?
Ø Background knowledge about the organizations
Ø Knowing the policy issues is important to help improve the profession
v What is the difference between ethics and morals?
Ø Morals = values attributed to a system of beliefs that help people decide right from wrong
Ø Ethics = moral philosophy, our set of rules in this class
Ø Legal ethics = principles of conduct that lawyers are supposed to follow in their practice
v What difference does it make that lawyers are professionals?
Ø Basically it means you have to be licensed to do these things, not just anyone can
Ø Commitment to serving others
Ø Doing an unusually careful job
Ø You are adopting a defined role and saying you’ll comply with the standards
B. Some central themes in this book
1. Conflicts of interest
v Overlapping duties that clash
v Whether or not and to what extent a lawyer is required to be truthful
3. Lawyers’ duties to clients versus their duties to the justice system
v Multiple lawyer perceptions of their role in society
Ø A cog in the “adversary system”: protect and advance the client interests (mostly defense attorneys)
Ø Other end thinks their primary responsibility is to protect our system of justice and to ensure that proceedings are fair, and that participants play by the rules, etc. (judges)
4. Lawyers’ personal and professional interests versus their fiduciary obligations
5. Self-interest as a theme in regulation of lawyers
6. Lawyers as employees: institutional pressures on ethical judgments
v There are institutional pressures on lawyers that are working for a company/firm
Ø Client centered
v Things like being pressured to not tell about an associate’s unethical behavior
Ø Public centered
C. The structure of this book
D. The rules quoted in this book: A note on sources
E. Stylistic decisions
Chapter 1: The Regulation of Lawyers
A. Institutions that regulate lawyers
**P 23 chart of the roles of branches of government in the process of establishing and enforcing lawyer ethics***
1. The highest state courts
a. The Responsibility of self-regulation
v Who makes “lawyer law?”
Ø The court adopts proposed rules of ethics
§ Can seek public comment
Ø The court is responsible for enforcement also
v How do the state courts regulate?
Ø Adopting ethics codes and procedural rules
Ø Setting/implementing standards for licensing
Ø Supervising the investigation and prosecution agencies
Ø Supervising administrative judicial bodies responsible for sanctions
b. The Inherent Powers Doctrine
v Why are the courts mainly responsible?
Ø Because they administer the courts
Ø Even if it isn’t in the state constitution, courts say it is inherent
Ø Inherent powers doctrine
v Negative inherent powers doctrine: Legislature can’t pass bills to change court rules
v Not all state courts claim exclusive authority, some share with all 3 branches
2. State and local bar associations
v Most are private nonprofit organizations
v Some have governmental functions
v Integrated/unified state bar: membership is required; the state bar has delegated functions
v Voluntary bar: you can choose to be a member or not and still practice
3. Lawyer disciplinary agencies
v Investigate and prosecute
v Final decisions in serious cases are made by a judicial body, usually the State Supreme Court
4. The American Bar Association
Ø Private nonprofit membership organization
Ø State bars do NOT fall UNDER this one
Ø Has a House of Delegates that governs
Ø How are ethics rules written/adopted?
§ Draft a rule/revision
§ Reviewed by states
§ Court accepts, rejects, or amends
5. The American Law Institute
v Private organization of judges, lawyers and professors
v Make the restatements
Ø Summarizes the rules
v The restatement isn’t always consistent with the Model Rules, but when this happens it is explained
Ø When this happens you have to balance and see what takes precedent
6. Federal and state trial courts
v They set and enforce litigation rules
v You have to be admitted to practice before federal district courts and court of appeals
v Tell us what to do as citizens and whether you can practice without a license or not (NO)
8. Administrative agencies
v You can usually appear before governmental agencies other than courts with a license to practice law in that state
Ø There are sometimes more procedural rules
v They sometimes have to prosecute other lawyers like in Watergate
10. Malpractice insurers
v They regulate the lawyers they insure
v They make sure you don’t miss deadlines, or they’d be at risk for malpractice
11. Law firms and other employers
v Some of these have their own structure of ethics, some even additional to the industry standards or more education
v Easier when the client is a big corporation or something
v Take care of things like block billing (8 hours but no specifics)
**See charts on page 36 about who regulates lawyers
B. The state ethics codes
v ABA adopted first Canons of Ethics in 1908
Ø Based on lectures by George Sharswood
§ Based on “Fifty Resolutions” by David Hoffman
Ø Some states treated as mandatory, others as guidance
v Judge Powell led to ABA Model Code in 1960s
Ø Then they became more like binding law
v Kutak Commission rewrote in 77, got adopted in 83
v Ethics 200 Commission rewrote in 1997
Ø As of Feb ’08 34 states have adopted
v What are the functions?
Ø Guide lawyers in evaluating proper conduct
Ø Provide disciplinary basis for violations
v Judges have their own set of ethics
v Specializations have other suggested codes
v You can call the bar with ethical questions
C. Research on ethics law
v Websites p 44
D. Admission to practice
1. A short history of bar admission
v All but 2 states had bar exam by 1860 (oral, didn’t have to have degree)
Ø Fairly informal
Ø Didn’t really require law school as a condition or admission, but the requirement for an apprenticeship kept increasing until law school was mandatory
Ø 1928 West Virginia required law school, by 1941, almost all states required it
2. Contemporary bar admission requirements
v Most states require:
Ø Graduating from accredited undergrad
Ø Law school that is accredited
Ø Moral character
Ø Passing the bar
v Once you are admitted, you have to upkeep (like the educational things and stuff)
v If you pass one bar, after a number of years some other states will admit you without taking another bar
v If you just need to litigate one case in a state, they can admit you pro hac vice by association with a lawyer admitted in the state
v Most federal courts allow members of any bar to go before them
3. The bar examination
v Some states let you “waive in” to take the bar if you’ve practiced long enough in other states, satisfy the character requirements, and pay a fee
v It is criticized a lot, but no replacement has been made
4. The character and fitness inquiry
a. Criteria for evaluation
v Character requirement
Ø Everything from residence, employment, criminal, traffic, credit, litigation history and MORE
Ø Usually need letters of rec. from lawyers
Ø Chart of decisions based on certain offenses p 52
v If you tell them too much will you be rejected?
Ø They say you should be totally honest
Ø Some will deny you if they find out you are leaving off even something small
v What if it is something you should have included on your law school application?
Ø The two need to match, so if you are looking at the application and realize you left something off, try to make an addendum to your application asap, even though there may be consequences
v Letters of recommendation
v Some conduct personal interviews with all, some just call in people with questionable stuff
v If there are a lot of questions, there will be an investigation
v The standards aren’t clear: PROBLEM
b. The character questionnaire
v It is always better to tell the truth
Ø It could delay, but you will be in much more trouble if they find out later and you lied
v Look over the bar application before graduation so that i
e short time you’ve been involved with the law actively
Problem 1-2: The Doctored Resume
Chapter 2: Lawyer Liability
A. Professional discipline
1. The history and process of lawyer discipline
v Lawyers used to be charged with misfeasance (conduct unbecoming of a lawyer) by a client/another lawyer/bar association
v The judge could bar the lawyer from further practice in that court
v ABA adopted Canon of Ethics in 1908 which gradually led to the current system
Ø Took a long time due to funding issues and reliance on volunteer staffing
v Now the systems have administrative hearing panels for fact finding and recommendations, states have adopted procedural rules (mostly based on ABA Model Rules for Lawyer Disciplinary Enforcement)
v Chart of course of a disciplinary action p 76
v How does a disciplinary proceeding work?
Ø Usually run by the highest court
Ø Staff attorneys look into the accusations
§ Some offices are run by the state bars others are not
Ø If the complaint looks legit, it goes to a hearing committee, usually of 2 lawyers and on nonlawyer
§ Usually voluntary
§ They hear evidence, make findings of fact, and recommend sanctions
Ø Review by the court, then final decision made
v Do most complaints get investigated?
Ø Some research shows that as many as 90% never make it past investigation
Ø Certain things basically just get ignored!
v How could the system be improved?
Ø Educating the client base
Ø The system catches sole practitioners more easily
Ø Only the things that clients actually see get reported and only if they know about the system
Ø Sanctions tend to be more punitive than rehabilitative
2. Grounds for discipline
v Can a lawyer get disciplined for doing something that has nothing to do with the law?
Ø Anything that is dishonest or prejudicial to the administration of justice or that shows lack of fitness to practice
§ Domestic violence, child support, drunk driving, slugs in parking meters, etc.
v Can a lawyer be disciplined for misconduct that took place while they were serving in an elected/appointed government position?
Ø Think Nixon
§ He wasn’t acting as a lawyer interfering with the FBI investigation, but it was dishonest
v Can a lawyer be disciplined for committing a crime?
Ø It usually reflects on your fitness as a lawyer if you can’t even follow the laws
v What if the lawyer wasn’t convicted or charged with a crime?
Ø That makes no difference, but if there is a trial they usually wait to see the outcome
v Can a lawyer be disciplined based on the actions of an employee?
Ø If you induce someone else to break a rule so you don’t have to then you are guilty
v Can a lawyer be disciplined for something she does outside the state in which she is licensed?
Ø It doesn’t matter where you mess up, you are still getting in trouble with your bar
v In that case, can you be disciplined where you did it too?
Ø As of now only CA, DC, and MD let that happen
v What if you are admitted to practice in several states and disbarred or suspended in one?
Ø You have to disclose to your other bars
Ø ABA has a register and if you get caught hiding you are screwed
v Can you get in trouble for discrimination?
Ø Yes, either by way of explicit rules or general interpretation
v Can you be disciplined for things that happened at a law school?