Professional Responsibility Outline

Professional Responsibility Dzienkowski Spring 2012

Topic 1: The Legal Profession

The American Bar Association

· ABA is a voluntary organization.

o In order to gain influence, the ABA had produced model codes. In legal ethics, there have been four different models.

· In 1908, Cannons of Professional Ethics were drafted. Don’t lie, cheat, steal, etc. Very broad statements of fundamental attorney-client concepts.

o Too difficult to apply.

· In 1969, the Model Code of Professional Conduct was released.

· Three Criticisms

o It was a litigator’s manual with lots of areas untouched.

o Embraced a duty of zeal – all lawyers must represent clients with zealous advocacy. Not now a mandatory duty in any subsequent code. Aspirational, not required.

o Conflicts of interest were not addressed with clear rules.

· In 1983, the Model Rules were created.

o Has text and comments. Text is mandatory. Comments explain.

o Appearance of impropriety used to be an issue. Now much more detailed.

· In 2002, the ABA did Ethics 2000 (E2K), which resulted in the version of rules we have now.

· ABA is currently involved in Ethics 2020, drafting rules based on global law practice.

ABA and the States

· Most state courts have a lot of regulatory power concerning how people practice in front of them. California is the classic case of mixed jurisdiction.

· Integrated bar means an agency (State Bar of Texas, etc.) helps the Supreme Court regulate the practice of law.

o State Bar is involved in admission, rulemaking, discipline, and regulation.

· Model Codes in the Cannon – 40 States had identical rules.

o More recently, there is a lot of disparity. Differences between states are usually in fees, conflicts, and confidentiality

· There is also a federal system. Supreme Court requires that you be a member of one of the state bars. Under the Supremacy Clause, the federal system could completely override the state system. Only in certain areas, does the federal system trump the state system.

o For example, special rules for lawyers in the IRS or SEC.

Topic 2: Admission to the Bar

· Usually, the State Bar has a committee that is responsible for admission issues. The Supreme Court along with that committee comes up with the requirements, which are usually basic.

1. Graduation from an ABA accredited law school is included by most states.

a. If you graduate from an unaccredited law school, you can only practice in the state where your school is located.

§ Concord Law School in CA is an internet-based law school currently fighting for accreditation. Would cause major issues for small and unaccredited schools locally.

o In the U.S., law is a graduate program. Around the world, law is an undergraduate program.

§ Includes a 3-year program with books, teachers, and traditional tests. Not how it used to be!

§ Foreign graduates can sometimes qualify to take the bar if they show that their curriculum was similar enough. L.L.M. students also have opportunity to take the bar.

2. Exam

a. Want a local part of the exam for your state. The 3rd day of Texas’s is for local concerns.

b. Any kind of challenge to bar exams has usually failed.

§ Supreme Court in your state must set the passing score.

§ If the judiciary sets the passing score, it is immune from the anti-trust laws.

3. Age – Most states have a limit.

4. Citizenship + Residency

a. Now unconstitutional to exclude someone from taking the bar if they are at least resident aliens. Not tourist or student visas. In re Griffiths held it unconstitutional based on the equal protection clause.

b. Residency requirements used to be fine. Not now. States don’t want temporary lawyers taking over the local law practices. Small states (Rhode Island) and vacation states (Florida) got mad.

i. Piper v. New Hampshire found residency requirement unconstitutional. Privileges and Immunities Clause protects fundamental rights of non-resident citizens, such as the right to practice law.

1. New Hampshire argued that lawyer would be less likely to be available for pro bono and court appearances and more likely to have ethics issues. SC said no! Said that there were other ways to handle those problems.

ii. Virginia said that a VA resident going to a VA law school didn’t have to take the bar, but residents of all other states who go to a VA law school do have to take the bar. VA said that you were more likely to know about local law if you were from VA. Stupid argument. SC said this violated the P+I Clause. Virginia lost.

iii. Virgin Islands imposed the Constitution and the P+I Clause by statute. Argued they wanted only residents. Had a vacation issue, like Florida. Argued administrative convenience, having to track people down in the 80s. SC found there were less restrictive means to doing this. Can charge a bit more for bar membership, but not a huge amount more than normal.

5. Fitness to Practice and Character Test – No absolute ban on any issue.

a. Declaration of Intent to Practice and Study Law looking for:

i. Violations of civil and criminal laws.

1. If you violate the law, you are likely to help your clients do the same thing.

2. Narrowed to things that actually relate to legal practice and fitness and people who are a danger to society.

3. Any crime can be forgiven. Murderers have become lawyers.

4. If it is a law everyone violates, it is likely to be overlooked. But a lot of incidents of this type may be an issue (parking tickets, speeding tickets, unreturned library books, etc.).

ii. Dishonest behavior in your business, educational, and personal life.

1. Tax laws fall in between this category and the first category. Taxes are serious business.

2. A lot of lawsuits, with you on either side, can keep you from being admitted.

3. Bankruptcy is a federal right, even if it shows that you don’t know how to handle money. Supremacy Clause prohibits a state from denying you bar admission because of bankruptcy.

a. But if you don’t declare bankruptcy, your debts can be factored in to your case.

iii. Substance abuse.

1. A DWI in law school falls under this and the first category. Without filing a lawsuit, you may be given a conditional admittance with other requirements.

iv. Psychological issues that might impair your ability to practice law.

1. Both substance abuse and this category have