PROBLEMS IN PROFESSIONAL RESPONSIBILITY OUTLINE
Ch. 1 – Creating and Maintaining a Profession
Hart and Hogg Principles of the Legal Profession
· Disdain for competition, self-promotion, advertising, and bald profiteering;
· A belief in the principle of payment for work – rather than working for pay; and
· A belief in the superiority of the motive of service
– Three Philosophical Approaches to the Question of “what it means to be a lawyer?”:
Wasserstrom – lawyer has a duty to represent client to full ability irrespective of moral worth; lawyer is only playing a role
Postema suggests three perspectives
· Viewing law as an amoral enterprise that is exempt from moral judgment
· Viewing law as an amoral enterprise which, by definition, permits lawyers to participate so long as, but only so long as, they are willing to sacrifice their morals
· Viewing the law as an activity that must be subjected to an “integration strategy,” pursuant to which the essential moral imperatives of the legal profession and one’s own essential moral imperatives are balanced (involves constant need for change, an appreciation of what is possible to change, and a willingness to withdraw if in the face of irresolvable conflict).
Powell – religious/moral conflicts w/ profession are few but when there is conflict, the lawyer can w/draw from representation or from the profession
· Playing out your moral beliefs in the profession can be a burden but also can invigorate you; doesn’t take as cynical standpoint as Postema does w/ his third view
Ch. 2 – The Gates to the Profession – Keys to the Office
The Bar Exam
– Everyone has to take it unless WI schools
– Purpose is to ensure minimum competency; designed to screen out people who are not qualified , in terms of knowledge or communicative ability or time management, to practice law
– Ensures basic familiarity w/ these ethics codes
– Tests general knowledge about legal ethics; Goes beyond model rules
– Additional inquiry – tests routine law issue – how to work with it; ex. drafting assignments based on a simulated file
MR 1.1 – requires lawyers to be competent; competence – specific knowledge about the fields of law in which the lawyer practices
Others will hold you responsible as well
a. Clients – how clients express anger / dissatisfaction / lack of confidence in a lawyer who fails to perform competently à don’t recommend, fire the lawyer, bad mouth, sue
b. Employers, co-workers, and support staff – employers: w/hold raises, give out boring work, fire; co-workers: ask not to work w/ or fire; support staff: give them low priority
c. Judges – criticize the work of incompetent/dishonest lawyers, impose sanctions, report them to disciplinary authorities
d. The Press – run stories
e. Other attorneys – give bad recommendations; refuse to refer business; refuse to grant extensions or other favors
f. Juries – sock the attorney w/ enormous damages
g. Disciplinary authorities – sanctions include: disbarment, suspension, interim suspension, probation, monetary fines, public reprimand, community service, continuing legal education, private reprimand, warning
h. Client Protection funds – reimburse clients whose attorneys have stolen from them
i. Prosecutors – criminal prosecution – usually serious offenses
j. Gov’t Agencies – FDIC; agencies often disbar lawyers from practicing before them in the future
k. Malpractice insurers – can raise premiums, impose conditions on insurance, or refuse to renew a policy; most states permit lawyers to practice w/out malpractice insurance coverage
Ch. 3 – Admission to the Bar
State control of law school curriculum.
Character and Fitness: Misconduct Before Law School
– States highest court appoints a Character and Fitness Committee that collects reams of data from bar applicants, checks numerous references, and interviews each candidate individually
– Recommending against your admittance à usually lack of candor on application
Character and Fitness: Misconduct During Law School
In re Mustafa – 3L student at UCLA stole money moot court program. Reported to the school dean. University satisfied that he had made full restitution and disposed of the matter by issuing a letter of censure to be placed in his student discipline file for four years. School was impressed by Mustafa’s forthrightness and honesty. If Mustafa was an attorney and he mismanaged funds then he would most likely be disbarred. D.C. did not admit Mustafa to the bar at that time b/c of his fitness – not demonstrated necessary character to practice law.
Character and Fitness: Lying on the Bar Application
M.B.S. – investigation into M.B.S.’s background revealed material that reflected adversely upon his character and fitness. Four separate charges. Drugs/alcohol/violence/lying. However the board found that M.B.S. had “proven his rehabilitation by clear and convincing evidence.” Attends AA; works for legal aid working w/ inmates; lots of people testified to his rehabilitation/honesty/integrity; religious; huge list of community service. Board was thoroughly impressed by M.B.S.’s involvement in the community. Board recommended conditional admission – then went to FL Supr Ct and they denied – he didn’t have present fitness to practice law (look at the record)
Should lawyers educated outside the US be admitted in the US?
Osakwe – Facts Board denied application of Osakwe to sit for Mass. Bar exam. Osakwe was educated in Nigeria (undergrad and law). Then went to Trinidad and Tobago and earned a legal education from there. Then went to Univ of Connect and earned a master of laws. He then passed the NY Bar. Currently practices Federal Immig law. Board says there must be a resemblance b/w the applicant’s legal education and the education that is provided to a recipient of a JD degree in a ABA accredited law school. Want to examine the applicant’s familiarity w/ American law fundamentals (2 ways – exposure to CL tradition or general evaluation then an evaluation of exposure to American Law or the Particular evaluation.) – looking for equivalent legal education
General Evaluation – Nigeria has a legal system derived from English CL – he has taken various core curriculum courses. – satisfied w/ this part
Particular evaluation – LLM training – satisfied
Evaluation reveals that Osakwe should be allowed to sit for the bar exam.
Ch. 34 – Who are the Lawyers?
MacCrate Report –
– the report makes the arg that legal education is at a crisis point (during 1985-95 à lots of chaos);
– focused on what law schools ought to do; urged for a set of expectations students will learn and the values that will be transmitted; said we are witnessing the break down of legal profession; put a lot of emphasis on the numbers
Powell – this report is more a discussion about the numbers rather than discussing the benefits that we have received
– Diversity of duality: gender diversifications combined w/ enhanced communications
– Criticism of MacCrate’s representation of the profession by its treatment of the emergence of two groups: women and minorities
– MacCrates is concerned w/ tracking presence of these two groups – not with their ability to deliver professional service to their clients; not very interesting according to Powell
– MacCrate’s concern w/ the legal profession’s demographic changes reflects its desire to establish diversity of the profession only as a predicate for its argument that the unitary concept of being a lawyer is in jeopardy.
– What values and skills the future will demand.
Marc Galanter, “News from Nowhere: the Debased Debate of Civil Justice”
I. Too Many Lawyers?
– Myth that US is home to 70% of world’s lawyers – more like 1/4
o A quarter is roughly the US’s proportion of the World’s GNP and less than our percentage of the world’s expenditures on scientific research and development;
o America is a highly legalized society that relies on the law and courts to do many things that other industrialized countries do differently
II. The Cost of the Legal System
– False report of legal system costing an estimated $300 billion a year
– Most cost of litigation figures have two significant flaws:
o They inflate costs and transfers
o They only talk about the costs and not the benefits
III. The Competitiveness Charge
– Escalating PL litigation is blamed for undermining competitiveness by raising costs, diverting investment, and discouraging innovation
– For the most part there has been a sustained contraction of PL exposure rather than the runaway expansion that alarms adherents of the jaundiced view of civil justice
IV. The Missing Knowledge Base
– To maintain credibility in debate about education or health or defense – participants have to critically take account of a shared fund of info; however, players in the legal policy can w/ impunity disregard reliable info, make up dubious facts and repeat discredited fables
Ch. 35 – The Diversity of the Legal Profession
Why do we want diversity?
Does it make a difference?
How do w
news releases, false letters urging switch voting, etc. (see pg. 498-99)
– he was suspended w/ probation and take Prof Resp. Test
Rule 8.4 it is prof misconduct for a lawyer to:
(a) violate/attempt to violate the RPC, knowingly assist/induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness;
(c) engage in conduct involving dishonesty, fraud, deceit or mirep;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a gov’t agency or official or to achieve results by means that violate the Rules or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
2. Sexual Misconduct Outside of Law Practice
– growing awareness of the effects of interpersonal conflicts, especially violence against women
The People of the State of Colorado v. Wallace
– respondent attorney beat his girlfriend; sentenced to little jail time; he admitted he violated prof resp laws; Panel recommended 3 month suspension;
– duty of supr court was to discipline attorneys that were unfit practitioners; suspended him
In the Matter of Max K. Walker, Jr.
– prosecutor represented the grievant in her dissolution of marriage; afterward they developed a personal relationship – which deteriorated, and he got in argument where he punched her in the face and pushed her child;
– His job to enforce the law – instead he broke it; how to look at system now; He was suspended for 60 day period
In re Lamberis – plagiarized while getting his LLM; lawyer is a lawyer is a lawyer; no such thing as in our private activities; kind of activity can be related to the requirements to practice law then that is sufficient
ABA Standards for Imposing Lawyer Sanctions
1. What ethical duty did the lawyer violate?
2. what was the lawyer’s mental state?
3. What was the extent of the actual or potential injury caused by the lawyer’s misconduct?
4. Are there any aggravating or mitigating circumstances?
Structure of Disciplinary Process –
Intake office – where complaints come in
Intake panels – might include one non-lawyer; usually 3 people; should matter be diverted to arbitration panel or it should be referred for prosecution by Office of Disciplinary Counsel (ODC)
Diverted to Arbitration/Mediation Panel or Lawyers assisting Lawyers (LAL) or Peer Counseling Bodies
ODC – appointed by Supr Court; Disciplinary Hearing Panel; reviews what intake panel had to say; then appeal to board
Board of Review – this recommendation then goes to the Supr Ct; board typically includes one non-lawyer
Supreme Court (highest court in each jurisdiction) – review board’s recommendation
Ch. 31 – Are you your Brother’s Keeper?
Rule 8.3 Reporting Prof Misconduct
(a) a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness shall inform the appropriate professional authority
(b) a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority
(c) this rule does not require disclosure of info otherwise protected by Rule 1.6 or info gained by a lawyer/judge while participating in an approved lawyers assistance program
Knows – an objective standard; would a reasonable lawyer under the circumstances understand this to be the facts