Professional Responsibility
Two main sources:
Rules of Professional Conduct
Canons of Judicial Conduct
Duties Lawyers Owe Clients:
· Care, skill and diligence (Examples: Model Rules 1.1, 1.3, etc.)
o Model Rule 1.1 – Duty of Competence
o 1.3 – Diligence – doing what you have to do, doing it well, doing it all the time (consistency)
o 1.4 – Giving information
· Loyalty (Rules 1.7, 1.9, 1.8(a) (the killer))
o Loyalty – working with a single interest, that of the client
· Confidentiality (Rule 1.6)
· To act as authorized (Rule 1.2) – who is in charge, who calls the shots; ethical rules of professional conduct become implied terms of the contract
· Fairness. 1.5
· Duty to give information
Duties Owed To Tribunals
· Honesty. Rule 3.3
· Hand’s-off treatment. 3.5, 3.6
· Duty not to obstruct justice or engage in conduct “prejudicial to a tribunal”
Duties Owed Opposing Layers
· Avoid frivolous contentions (3.1, 3.4)
· (Pleading the guilty client not guilty is NOT a frivolous contention.)
· “Expedite litigation”, Rule 3.2
· Behave yourself in discovery, Rule 3.4
· Act in a civil manner . . . oath of office.
Duties Owed to Opposing Parties
· Don’t interfere with attorney-client relations. Rule 4.2
o Not to go behind the back of opposing party (contacting client without going through lawyer).
· Don’t treat abusively. Rule 4.4
· Don’t lie. Rule 4.1
Duties to the Public
· Don’t mislead about who you are or what you’re up to. Rules 4.1, 4.3, 7.1
· Be civil. Rule 4.4, Oath of Office
· Lying is ALWAYS a bad idea.
In re Pautler
· What happened here? In baiting the trap to catch the killer, there was a lawyer pretending to be an advocate for the criminal. The court didn’t like the idea that Pautler lied in order to catch the crook, but also the failure to straighten this out immediately. There was a good result (he was caught), but had to lie in order to trap him.
· Some forms of deceptions are acceptable (plain-clothes cop buying drugs, informants, etc.). Here, Pautler crossed the line – if unsure, he should have sought an ethics opinion from someone else.
· Big Failings:
o Lying is not recommended.
o If you’ve got an honest alternative, take it.
o If you screw up, clean it up immediately. Paulter took no steps to correct the deception.
o Prosecutors have special duties.
o Watch out for a “macho” attitude; too much “blue light” in your blood.
· Further research:
o Go to Westlaw’s JLR database and enter your key search terms.
o For example, “Pautler” or Pautler /s 8.4(c)
The Business Side of Law
· Making money – charging fees. Tightly regulated
Times
Bar Admission
· Being admitted in state court does not get you admitted to federal court.
o Being admitted in SC gets you to SC supreme court, agencies, ALJ’s, family court – not federal court
o Same with circuit courts need to be admitted to fourth circuit, same with USSC
· Being admitted in one state does not entitle you to practice in another.
· Two ways to go to another state:
o 1. Pro hac vice admission is an option; check the local rules.
§ Means for this turn only – there are special regulations, may have to pay a fee or file application but virtually all courts have this
· Never want to be caught practicing law without a license
· Residency requirements have been struck down.
· Where it’s dicey – when someone comes to you with problem with SC defendant and you have to bring lawsuit and the documents say that the matter needs to go to arbitration in NC
o Do you go to a NC court for pro hac vice? You aren’t really practicing though? The profession is working out a system that allows you to do this without trouble
