Legal Ethics
Introduction:
Ethics Sources
Philosophy
Rules Standards
Model Rules of Professional Conduct (MR, Rules)
Code of Professional Responsibility (CPR, Code)
Related Statutes
Related areas of law, e.g.:
Agency/partnership
Civil procedure
Constitutional law
Contracts
Criminal law/procedure
Evidence
Torts
Remedies
Restatement of Law Governing Lawyers (RLGL)
Ethical Theories
Rights based, (also called deontological theory, or Kantian theory):
Focus on act
Maxim: must treat persons as ends, not means; right to respect
Consequential, teleological (utilitarianism):
Focus on consequences
Maxim: greatest good for greatest number
Relational, or ethic of care
Common Lawyering roles
Instrument of client (“hired gun”)
Parent/Director
Collaborator (open relationship w/client, give & take) – usually these lawyers get in less trouble
Spaulding v. Zimmerman
· Focus on major ethics issues in this case.
· Facts: P injured in car accident with D. D’s doctors examined P and found an aneurysm. P and his lawyer were not aware and did not obtain the info from discovery. Parties settled. Two years later, P found out about the aneurysm. P moves to vacate the settlement and sue for the injuries not known.
· Major ethics issues:
o Competence – communication w/client
o Confidences (respecting client’s autonomy)
o Loyalty (conflicts)
o Duty to system (“officer of the court”)
I. Preliminary Issues – Chapter 1
A. Admission
1. Req. for membership in bar:
a. Education
b. Bar exam (or waive)
c. Oath
d. Add req fed ct. (e.g., 2-day seminar on ct. rule; Sup. Ct. = 3+ yrs.)
e. Character fitness
i. Burden- burden is on lawyer to show character & fitness
ii. Standard – honesty, respect for law, professionalism; character & fitness is considered as it exists @ time of admission
iii. Behavior considered problematic – incompetence, conviction of a crime, substance abuse, child abuse/neglect, failure to report an adverse malpractice judgment/sttlmt to licensing agency
· association with a group is not enough
iv. Application of ADA
· ADA does apply to the Bar
· Connection between the disability & the act
· ADA requires “reasonable accommodation” if possible, for otherwise qualified individuals
· ADA may serve as mitigation in disciplinary proceedings
· Distinguish between status & conduct
v. Application of ADA
vi. See 8.1 – An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
2. Pro hac vice (pronounced veachay), means “for this time” (for lawyer licensed somewhere & with a need to practice elsewhere temporarily)
a. Should grant unless legitimate state interest
b. No due process right to pro hac vice
c. Due process rights if revoked (when given pro hac vice, then revoked)
B. Discipline
1. Source: Supreme Court
2. Process
a. Complaint
b. Hearing
c. Std. Quasi criminal, procedural safeguards (clear & convincing evidence)
d. Appeals through cts or state bar
e. Ultimately by S Ct.
3. Sanctions
a. Private reprimand
b. Public reprimand or censure
c. Suspension
d. Disbar
e. S. Ct. can require training, restitution, etc.
4. To determine appropriate sanction, consider: (ABA standard 3.0)
a. Duty – fiduciary duty violated, or
b. Mental state – was behavior innocent, intentional
c. Injury or potential injury
d. Aggravating or mitigation factors
C. Subject to discipline, Rule 8.4 ; 04-433 ethics opinion: It is professional misconduct for a lawyer to:
a. violate, attempt to violate, or induce/help another to violate
b. criminal act
c. fraud, dishonesty, deceit, misrepresentation
d. conduct prejudicial to the administration of justice
e. state/imply ability to influence public official
f. knowingly assist judicial officer in violation of rule of judicial conduct or other law
D. Duty to Report Behavior, Rule 8.3 2-Part Test
a. Knowledge (actual), but can be inferred from circumstances; objective standard; reasonable lawyer, firm opinion, something likely occurred
b. Substantial question as to lawyer’s honesty, trustworthines
ity to represent the client.
1. comment 1 – A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer’s freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service
2. Rule 1.2(b) comment 5 – representation is not equal to endorsement
B. Limiting representation possible? Rule 1.2(c) – c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent
C. Court Appointments – Bothwell case – When will court compel?
1. courts do have inherent authority to make appointment of counsel without being paid
2. factors are analyzed to determine why the client can’t obtain counsel
3. marketability analysis – whether a market of lawyers who practice in the legal area of P’s legal claims; whether the P has access to that market; whether the market’s rejection of P’s claims was the result of his indigency
4. So, Bothwell case says that the court does have the inherent power to make an appointment, but won’t exercise it unless for reasons of indigency. Court will compel when the reason is indigency and not the market for failure of client to obtain counsel.
5. Rule 6.2 – Shall Not seek to avoid appointment, except for good cause:
a. For Good cause, lawyer may seek to decline appointment:
i. Violates rules
ii. Unrsnbl financial burden
iii. So repugnant likely to impair relationship
D. Pro Bono, Rule 6.1
1. Rule 6.1 Lawyer as responsibility to provide services for those unable to pay.
2. Rule 6.2 Should aspire to do 50 hrs; substantial majority to
a. Persons of limited means
b. Organizations designated to address needs of those persons and
3. Rule 6.1b: provide additional services w/reduced or no fee (organizations, persons of limited means, improving law and legal system)
