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Ethical Lawyering
University of Toledo School of Law
Martyn, Susan R.

Legal Ethics Outline
Fall 2009
Lawyers, Role and Law
Ethical Theories
client autonomy theory – lawyer should not preempt the client – lawyers should see clients as an end in themselves, not as means to an end
                                                               i.      attorneys should not use clients to further own social, political, or personal goals
1.        client should have right to decide what her own interests are
consequential theory – focus is on the consequences of an act, attorney should strive for the greatest good for the greatest # of people
relational theory – ethic of care; lawyers should see the client as a person with relationships
Ethics Issues
4 main fiduciary duties of attorneys – ** see the 5 C’s
                                                               i.      loyalty
                                                              ii.      competence
                                                            iii.      communication
                                                            iv.      confidentiality
when an attorney violates any one of the F duties a client can:
                                                               i.      bring malpractice claim
                                                              ii.      bring breach of F duty claim
                                                            iii.      pursue professional discipline against the attorney
                                                            iv.      bring a fee forfeiture claim
                                                              v.      bring ineffective assistance of counsel claim in habeas corpus petition
1.        criminal only
Should M file a claim after SoL has expired?
                                                               i.      yes, b/c SoL is an affirmative defense and will be Δ’s duty to assert
Opposing side incorrectly believes property can be subdivided, should M correct the mistake?
                                                               i.      M probably does not have duty to correct opposing side’s mistaken belief unless law in that jurisdiction imposes such an affirmative duty to disclose
                                                              ii.      Note – M cannot give ½ truths; for instance M, if asked, cannot state “the lot cannot be subdivided into 10 lots” when the lot cannot be subdivided at all
                                                            iii.      let client know of all possibilities, see what he/she has to say
1.        b/c could be bad for your relations with client, they may argue you made material misrep., etc.
Opposing counsel who is M’s friend mistakenly believes alimony can be later negotiated, but M knows such claim will be barred
                                                               i.      at some point, attorney’s relationship with colleagues must be put aside to further the client’s interests
1.        however, want to keep good relationship with fellow attorneys
                                                              ii.      Martyn – disclose everything to client, even non-legal considerations – let them decide
Should M tell client the chances of getting caught doing something illegal?
                                                               i.      no – lawyers have been found criminally liable for such statements (Pizz)
                                                              ii.      though some argue yes – tell your client everything!
Lawyer’s Roles
lawyer as instrument
                                                               i.      focus is on providing individual client representation and adversarial advocacy; their preference for client autonomy may tempt them to suppress their own moral judgment and cede all authority to the client
lawyer as director
                                                               i.      focus is on the attorney’s role as an officer of the legal system and of a professions; lawyer cedes little authority to the client and the lawyer’s values control the representation
lawyer as collaborator
                                                               i.      focus is on providing expertise and perspective so the client can make his own decisions concerning his own interests as well as the effect of their decisions on others
ideal role for lawyer is that of collaborator – join with clients, but neither dominate nor be dominated by client’s values
Judicial and Professional Regulation
In General
judicial branch of gov’t regulates the practice of law in 2 ways
                                                               i.      admission to practice
                                                              ii.      professional discipline
license to practice law is required in ever state – issued by state’s supreme court
states remain free to impose admission requirements on residents and non-residents alike ALA pre-reqs. favor resident lawyers
General Admission Requirements
                                                               i.      proper education
                                                              ii.      bar exam
                                                            iii.      oath
                                                            iv.      additional reqs. for federal courts – can set up just about anything they want
                                                              v.      character and fitness
1.        applicant has the burden to prove good character and standard is clear and convincing Evid.
2.        bar admission committee will look to totality of evidence in determining whether person fit to practice
3.        committees disfavor lying on the application – err on side of disclosing
4.        committee will look at applicant’s criminal history, credit history, school discipline
5.        some indiscretions will keep applicant from sitting forever, but most will only suspend applicant from sitting for a few years
                                                               i.      Will M be denied admission b/c of plagiarized law review article?
1.        single isolated mistake probably won’t bar you from the bar, but would trigger further review of your record, even though reflects untrustworthiness, dishonesty
                                                              ii.      Will M be denied admission based on 2 DD convictions?
1.        probably – 2 convictions for DD raises an issue b/c it could be seen as an addiction, shows disrespect for the law, also put others at risk
ADA → APA applies to bar admissions offices and in accordance with the ADA, bar admissions offices must make accommodations for otherwise qualified persons
                                                               i.      giving more time to take the bar based on learning disability
1st Amendment issues → an applicants unpopular belief in something should not be the basis for the denial of admission to practice – implicates the 1st amendment
                                                               i.      however, commission can go behind the exercise of those freedoms and consider an applicant’s moral character
                                                              ii.      Example – M believes in Aryan supremacy and has announced plans to become counsel to KKK
1.        if M demonstrates pattern of volatile behavior in assoc. with group then could possibly be denied, otherwise should not be denied based solely on beliefs
Bar exam officials may ask about specific associations, ALA membership in that group indicates shared belief contrary to L’s ability to represent clients in this country’s legal and political institutions
Pro hac vice – admission where court, upon party’s motion, permits out of state lawyer to practice in this state just this one time
                                                               i.      usually grant unless legitimate state interest in refusing, such as making sure person knows laws of the state
Discipline – state supreme courts decide disc. issues
                                                               i.      complaint – anyone can file (absolute immunity) – client, another attorney, judge
                                                              ii.      hearing – quasi-criminal and attorney has procedural safeguards such as right to subpoena W’s and X-examination
                                                            iii.      decision – atty. either cleared or not, must be proven by C&C Evid.
                                                            iv.      appeal – can appeal through state courts or state bar
1.        reviewed de novo
Sanctions include
                                                               i.      private reprimand
                                                              ii.      public reprimand or censure
                                                            iii.      suspension – inform clients!
                                                            iv.      disbar – atty can no longer practice law in the state
                                                              v.      additional sanctions – supreme court can impose additional sanctions as it sees fit – virtually no limit
To determine which sanction appropriate, courts will consider
                                                               i.      rule the atty violated
                                                              ii.      attys. mental state – was it intentional or negligent
                                                            iii.      injury or potential injury

or, with knowledge of the specific conduct, ratifies the conduct involved OR
2.        L is partner or has comparable managerial authority in the law firm in which the L practices, and known of the conduct at time when its consequences can be avoided or mitigated but FAILS to take reasonable remedial action
                                                              ii.      5.2 – L bound by MRPC notwithstanding that the L acted at the direction of another person BUT
1.        a subordinate L does not violates the Rules if that L acts in accordance with a supervisory L’s reasonable resolution of an arguable question of professional duty
                                                            iii.      5.3 – L shall be responsible for conduct of a non-lawyer assistant that would be a violation of the Rules if engaged in by a lawyer if
1.        the lawyer orders or with knowledge of the specific conduct, ratifies the conduct involved OR
2.        the lawyer is a partner or has comparable managerial authority in the law firm in which the lawyer practices AND knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take R remedial action
                                                            iv.      Example
1.        M, a partner, discovers A, associate, stole $ from C’s trust account. M confronted A, A repaid, will not repeat b/c now on bipolar medication
a.        M tells F, an associate, of the matter
                                                                                                                                       i.      under 5.2, F probably cannot keep quiet b/c not R resolution to A’s actions
Choice of Law Issues
when atty is licensed in more than 1 state, each state can discipline the atty for misconduct that took place in another state
Rule 8.5 → L admitted to practice in a jurisdiction is subject to the disc. auth. of that jurisdiction, regardless of where L’s conduct occurred
for conduct relating to proceeding pending before a tribunal, the rules of the jurisdiction in which the tribunal sits apply
                                                               i.      for other conduct (negotiations, contracts, wills), the rules of the jurisdiction in which the L’s conduct occurred where there is a predominant effect apply
double jeopardy does not apply to disc. proceedings – therefore, atty can be forced to answer to allegations in other states and in criminal and civil proceedings
Deciding Whom to Represent
1.        In general – no general duty to take every client that walks in
2.        The 5 C’s
a.        communication – affirmative duty to communicate
b.       control – recognizing client’s right to control (goals)
c.        competence
d.       confidentiality
e.        conflict of interest resolution – these duties automatically attach when you have an atty-client relationship
3.        Rule 6.2, cmt 1 → lawyer ordinarily is not obliged to accept client whose character or cause the lawyer regards as so repugnant as to impair relationship/ability to represent
a.        however, L’s freedom to select clients is qualified
b.       all L’s have resp. to provide pro bono legal service
c.        “absolutely beyond your ability to represent b/c of moral repugnance”
d.       Rule 6.2 → L shall not seke to avoid appointment by tribunal to rep. a person except for good cause, such as:
                                                                 i.      rep. client likely to result in violation of MRPC
                                                                ii.      rep. C likely to result in unR financial burden of L, or
                                                              iii.      client or clients cause so repugnant to L as to be likely to impair a-c relationship or L’s ability to rep. the client
Rule 1.2, cmt 5 → legal rep. should not be denied to people who are unable to afford legal services, or whose cause is