In re Pautler:
1. if you make a mistake, do what you can to mitigate the damage as early as possible.
2. there is no justification for willful misrepresentation or fraud of any kind by an attorney.
All disciplinary actions are reported on SC’s bar website/directory.
Discipline for lawyers for misconduct is not only limited to lawyers committing misconduct in their role as lawyers. (8.4 c, 8.5). Same is true for trustees, fiduciaries, other positions in business.
Unrepresented Parties: Rule 4.3 states that in dealing on behalf of a client with a person who is not represented by counsel:
a lawyer shall not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client
§ In the present case, Pautler was dealing on behalf of a client. As a solicitor, his client is the state.
Compare with Rule 4.2 (represented parties may only be communicated with through their attorney)
Rule 8.3: A lawyer who knows that another lawyer has committed a violation that raises a serious question as to that lawyer’s honesty, trustworthiness or fitness to practice must report that violation. This is subject to the duty of confidentiality.
§ For the avg citizen, you don’t have to report a crime. It is a different standard for lawyers.
§ Lawyers are part of a self-regulating profession.
§ Obligation only attaches if you know about the misconduct. You can be convicted of knowing about a violation and not reporting it.
§ Actual knowledge v. Strong Suspicion
Wieder: Δ under duty to report violations, so law firm couldn’t fire him for it
Bohatch: firm not liable for damages to a partner whom the firm had expelled for alleging in good faith that another partner had violated ethical rules
In Re Himmel: a-c privilege did not excuse an attorney from the duty to report misappropriation of funds by the client’s former attorney (privilege only applies to a-c evidentiary privilege, and the conduct wasn’t communicated, so not privileged)
If I as a lawyer realize I’ve committed a violation (I screw up a statute of limitations), do I have to tell on myself? No, but I do have a duty to tell my client. It would not be acceptable to tell my client that the judge just dismissed the case.
§ Also have a duty to cooperate with my malpractice carrier.
Confidentiality Agreements: Under rule 8.3 (c) there is not a requirement for disclosur
ng purpose of the rules.
Defending the Guilty
1. Constitution requires every citizen receive the same protection. 6th Amendment right to counsel—innocence is irrelevant.
2. Erroneous convictions—DNA, you have to have a competent lawyer to make sure that techniques are used properly.
3. Everyone deserves to have good representation. Make sure the penalty fits the crime and they don’t try to get railroaded into a worse sentence.
4. “Making the screens work” aggressively advocate so everyone does their job in future cases. Helps protect the community rights as a whole.
Competency of Counsel:
Rule 1.1 is the basic rule. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Sandstrom: attorney liable b/c failed to take any pretrial depos, failed to conduct proper investigation, failed to timely challenge admissibility of evidence, failed to present recording to impeach prosecution witness, failed to become familiar w/ phys evidence in case
§ Malpractice/ civil liability
Constitutional protection for ineffective assistance of counsel.