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Professional Responsibility
University of South Carolina School of Law
Powell, Burnele Venable

University of South Carolina School of Law
Problems in Professional Responsibility
Professor Burnele Powell
Fall 2008
Professor Powell’s Lawyers and the Legal Profession, 4th Edition (forthcoming), by Roy D. Simon, Jr., Carol A. Needham, and Burnele V. Powell

Chapter 1

Lawyers as Professionals

Hart and Hogg give us 3 questions to start with
· What is a professional?
· What is a lawyer?
o Wasserstrom – lawyer is an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established
§ Can be indifferent to a variety of ends and consequences
o Postema – 3 perspectives
§ Law is an amoral enterprise exempt from moral judgment
§ Law is an amoral enterprise that lets lawyers participate so long as they are willing to sacrifice their morals
§ Law is an activity subjected to an “integration strategy” – integrating the morals of the self and of the legal profession – then balance
· Need for change
· Appreciation of what is possible to change
· Willingness to withdraw from profession in the face of irresolvable conflict
o Powell – mix of religion and law – religion will not greatly inhibit a lawyer, but the potential for moral loss is there, so escape from the profession may be necessary
· How can we practice law at the highest level?
o Become a professional over an individual
o Don’t be engaged in the selling of goods, delivery of services – pay for work, not work for pay

Chapter 2 – Gates to the Profession

Competence
· Rule 1.1 – lawyer shall provide competent representation with below, reasonably necessary for the representation
o Legal knowledge
o Skill
o Thoroughness
o Preparation
· Legal competence
o Specific knowledge about the fields of law in which the lawyer practices
o Performance of the techniques of practice with skill
o ID of areas beyond lawyer’s competence and bringing those areas to client’s attention
o Proper preparation
o Attention to details and schedules
o Developing a strategy in collaboration with the client
o Don’ have to be competent at the time of 1st agreement – can research it and become competent in time for representation

Parties necessary to the lawyer’s existence
· Clients – have power by not recommending, firing, bad-mouthing, reporting, suing
· Employers, co-workers and support staff
· Judges – can criticize work in court, impose sanctions, report to disciplinary authorities; can also provide good schedules and take good attorneys at their word to submit documents
· Press – More monthly national lawyer magazines and daily city legal newspapers
· Disciplinary Authorities
o Disbarment – cannot practice and must make a motion to state’s highest court to get readmitted (some states, must be 5 years)
o Suspension – cannot resume practice without submitting evidence of good moral character
o Interim suspension – effectively immediately, followed by full investigation
o Probation – if he violates another rule, will face harsh penalties
o Monetary fines
o Public reprimand – step down from suspension published in bar joutnal
o Community service
o CLE – take and pass law school ethics class or CLE or MPRE
o Private reprimand – like a misdemeanor
o Warning – if lawyer comes close to violating rules, but does not do so
§ Why sanction attorneys?
· Not for punishment – that is what criminal law is for
· To protect the clients, court and the profession
· Deterrence
· Maintain appropriate standards of professional conduct
· Preserve the integrity of the legal profession
· Malpractice insurer – raise premiums, impose conditions of insurance, or refuse to renew policy
o These do not cover intentional wrongs

Chapter 3 – Admission to the Bar

Character and Fitness
· Test – current fitness to practice law
· Things that can lose your recommendation
o Failure to disclose/misrepresentation of a past sin
§ If omission is intentional – “Watergate Principle” – cover-up is worse than the original sin
o Misconduct during law school
§ In re Mustafa – converted moot court funds to his personal use
· He confessed, talked to dean and Bar Committee – school placed censure letter in his file
· Committee was impressed with his honesty and forthrightness and his good letters of recommendation
· To gain admission to bar – applicant must demonstrate “by clear and convincing evidence that the applicant possessed good moral character an general fitness to practice” at the time of admission
· Court rules – incidents happened too close to bar admission – not fit
o Lying on Bar Application
§ FL v. MBS – false info on law school application; false info on application to participate in Sup Ct. practice program; false info on Bar
· Problems
o Lack of truthfulness/honesty/candor
o Minimal rehabilitation in scope and depth
o 13 year history of lying, stealing, breakin

mpetitiveness Charge
o Products liability litigation is raising costs, diverting investment, discouraging innovation
§ These products are dangerous and people deserve compensation
§ Only about 2-3% of cases in state courts
§ PL is contracting now, and punitive damages are decreasing

Chapter 35 – Diversity of the Legal Profession

Equal Employment Opportunity Commission – Dominguez
· 3 megatrends – (1) more women, (2) more racial, ethnic, and linguistic groups, and (3) younger workers

Recruiting Efforts by many bigger firms to recruit minorities
· Pull from first years
· Set up fellowships
· Minority job fairs
· Aggressive headhunter approach – pulling laterals
· Mentoring – minorities do not want to be the first in the firm, so it is good to have a mentor

Women in the legal profession
· 50% of women in law school, 30% of lawyers, 15% of federal judges and partners, 10% law school deans, 5% of managing partners of large firms
· Why?
o Gender stereotypes
§ Traditional characteristics of women at odds with “assertiveness, competitiveness, and business judgment” needed for lawyers
o No presumption of competence
o Subjectivity of performance evaluations, esp. with families and children
o Lack of informal networks of mentoring and client development
§ Men don’t associate due to sexual harassment fears or how it might look
o Need for face time conflicts with family commitments
§ Maternal wall (Williams) – get “mommy track work”

Why do we Diversify?
· Collins – need for the black community to develop expertise and power
o Renovate the perception of roles in the black community
o Build confidence in the community
· Vernon Jordan – cannot just serve the minority community – must become fully integrated into all aspects of the profession
o Must have access to same positions of power and prestige as whites
· Dominguez (EEOC) – either align with the trends or get buried by them – stay ahead of the times