Professional Responsibility Outline (Strong, 2016)
Preliminary Perspectives
Rule 8.1: [Bar Application]
Applying to the bar, you can’t:
Knowingly make a false statement of material fact
Not correct a misapprehension that you know to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from the Bar.
What does “false” mean? It has two distinct meanings in areas of the law
Evidence is false if it’s objectively erroneous
Evidence is false only if it’s a deliberate falsehood known to the witness
Model Rule 8.1(a) provides that falsehood must be made knowingly, so the second definition
What constitutes “knowing”?
Knowledge can be inferred from the circumstances (Rule 1.0(f)).
Although a lawyer should resolve doubts about the veracity of evidence in favor of the client, the lawyer cannot ignore obvious falsehoods.
Can you discipline a lawyer for something they did before becoming a lawyer?
If it’s not encompassed by 8.1, you cannot be disciplined.
In other words, 8.1 is the only rule that deals with conduct before bar admission. Even if it’s character proving, prejudicial, etc…you won’t be disciplined for it if it’s not in 8.1.
Examples:
Suppose the Bar learns that Josh, before he was a lawyer, had twice falsely represented himself as a police officer — can he be disciplined for this crime involving deceit?
No. Not encompassed by 8.1.
Rule 8.2: [UNIMPORTANT]
In lawyer assessments of persons being considered for election or appointment to judicial office / public legal offices, the lawyer needs to be honest.
Rule 8.3: [Snitches Get Stitches]
A lawyer who knows that another lawyer/judge has committed a violation of PR rules that “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness” needs to tell professional authority.
Rule 8.4: [*Important* Misconduct]:
It is professional misconduct for a lawyer to:
Violate or attempt to violate PR rules, knowingly assist another to do so, or do so through the acts of another
Commit a criminal act that reflects on lawyer’s honesty, trustworthiness or fitness as a lawyer
Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
Engage in conduct prejudicial to administration of justice
Lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists (comment 4)
State or imply an ability to improperly influence a gov agency, or to achieve results by means that violate PR rules
Knowingly assist a judicial officer in conduct that’s a violation of judicial conduct rules.
Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even minor ones, can also indicate indifference.
Examples:
John is admitted to the bar, then commits perjury in a court of law — is he subject to discipline?
Definitely. Under 8.4(a-c).
Say John was charged with perjury, then acquitted, then on independent review, a committee determines that he really did lie to a court of justice. Subject to discipline?
Yes. Independent committee has a broader evidentiary basis.
If you have a conviction in the first case, that’s good enough for the disciplinary committee and you won’t need independent review.
John convicted for solicitation of prostitution. Subject to discipline?
Probably not. Comment 2.
Repeated convictions for possession of marijuana?
Maybe. But it might demonstrate chemical dependency, so lawyer might be referred to lawyer assistance program rather than disciplined.
Rule 8.5: [C
oyees Usually covered by privilege, except some states employ the control group test.
Control Group Test: Privilege applies to officers who direct company action in response to attorney advice.
Employees Not Acting In Scope of Employment No, communication from them to general counsel isn’t protected.
UNLESS
An exception applies; or
Crime-Fraud Exception:
There is a crime-fraud exception if:
Client’s purpose in communicating with the lawyer
Is to use the advice or assistance
To further an intended or continuing
Crime or fraud.
But a lawyer may discuss legal consequences of any proposed course of conduct by the client, even if it may be illegal.
If a client is merely telling you what criminal shit they’re going to do, then that conversation is not seeking legal advice because they’ve already made up their mind, so it’s protected atty-clt privilege. Purcell v. District Attorney (Mass. 1997)
Rule 1.13: If a lawyer is employed/retained by an organization, and knows that a person associated with the organization is shit that could legally implicate the organization, lawyer has an ethical duty to report it to higher authority. If higher authority doesn’t give a shit, then the lawyer can reveal information to extent reasonably believed necessary to prevent substantial injury to organization, but only if violation is reasonably certain to result in substantial injury to the org.
