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Professional Responsibility/Legal Ethics
University of South Carolina School of Law
Crystal, Nathan M.

PROFESSIONAL RESPONSIBILITY
PROFESSOR NATHAN CRYSTAL
 
Exam March 7th, casebook, rulebook, outline ¾ multiple choice, ¼ essay
Take anywhere in building
25 multiple choice, 3 hours…1pm. Friday
 
1)      Duty to Report
a)      8.3 Reporting Professional Misconduct
i)        (a) a lawyer who knows that another lawyer…
ii)       Knows: RPC 1(f): Knowingly, known, or knows denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
iii)     The standard is ACTUAL KNOWLEDGE
iv)     No duty to report ethical violation unless there is actual knowledge
(1)   Practical Reasoning—look at options, advantages, disadvantages, and chose the best option
(2)   Nothing in rule shows obligation to investigate
(3)   You could ignore, report, check with ethics advisory committee
b)      8.4 (d)
i)        conduct prejudicial to the administration of justice
(1)   could argue that failing to investigate was prejudicial to the administration of justice. (strained)
c)      1.1
i)        could argue competence (strained)
d)      no duty to investigate
i)        contact lawyer, client
ii)       may get more beneficial info from the insurance company(should know if 250K settlement) BUT they may contact your boss, he won’t like it
e)      RPC 5.2
i)        (a) a lawyer is bound by RPC notwithstanding direction of another
ii)       (b) a subordinate lawyer does not violate the RPC if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
(1)   The difference between the two is the REASONABLE resolution of an arguable question of professional duty
(2)   The question is “did it happen?” not a question of professional duty
iii)     5.1/5.3 (supervisors/ non-lawyers)
(1)   Structural Responsibility—structural requirements 5.1a, 5.3a, must have rules in place to ensure comply with RPC
(2)   Supervisory Obligation 5.1a, 5.3 b, must have mngt committee, different depts., obligations of supervisory lawyer, must take reasonable efforts to ensure that you instruct paralegals no talk
(3)   Vicarious Responsibility 5.1c, 5.3c—taking responsibility for misconduct of another lawyer or paralegal
(a)    vicarious liability in tort—op within scope of employment
(b)   ethics law—lawyer ethically responsible
iv)     Almost always, info. Obtained by another lawyer cannot be revealed due to RPC 1.6 –anything gained in the course of representation may not be revealed even though professional misconduct, must get client permission, thus 8.3 may not impose duty, PRIMAC

nfo, both subject to exceptions, but these exceptions are very different
iv)     Waiver, Crime Fraud Exception, and whether communication is for purpose of seeking legal advice
(1)   Attorney-client privilege: p.85—where legal advice of any kind is sought from a professional legal advisor in his capacity as such, made in front of 3rd parties, paralegals not included, but others may lose the priv., or unless the client waives the privilege…crime fraud exception?   
5)      Combine 1.2(d)–assistance and 8.4(b)—conduct v. 1.6
6)      WUSLT:
a)      A lawyer’s ethical and legal obligation when a lawyer comes into possession of the fruits, instrumental ties, or evidence of a crime (“tangible criminal property”)
7)      Weak identification…but client admits crime, money in girlfriends apt. (no know)
a)      Obligation to inform authorities?
i)        Confidentiality—1.6 governs
ii)       Advisor—2.1 governs as well
(1)   If lawyer not in financial misconduct, where client commits and retains, lawyer not justified in revealing