Ethics Outline: Legal Ethics, Professor Susan Martyn, Spring 2016
Chapter 1: Lawyers, Role, and Law:
-Model Rules of Professional Conduct:
Preamble  p. 7: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
If you violate the rules, there will be professional discipline.
Each state adopts its own version of the model rules.Usually are very similar to the model rules of professional conduct.
Instrument – Hired Gun, plumber, cab driver, puppet, prostitute; Instrument. (Does whatever the client wants; forgets their own morals).
Basis- Rights; duties to and rights of clients.
L’s view of law- Malleable means to pursue client’s desire.
Translator- Wiles counsel, teacher, friend, statesman; Translator.
Basis- Blended; concern for outcome of client.
L’s view of law- Moral norms that apply to human behavior.
Director- Traditional, paternalist, professional, officer of the system; Director. (takes away choices of the client- “here’s what’s going to happen and this is what you’re going to do; usually run into malpractice issues).
Basis- Outcomes greatest good served by expert legal advice.
L’s view of law- Means to promote social stability and order.
*Problem 1-1: Should M and F file a claim on behalf of a client after the statute of limitations has expired? What if we are fairly sure the opposing party will not be represented?
A lawyer must represent clients zealously with single minded devotion to clients within the bounds of the law.
It is not illegal to file a claim after the SOL as run. SOL is an affirmative defense meaning that the defendant must raise the statute.Claim can be filed and will not be barred if the defense does not raise a SOL defense.
Lawyers must however advise clients candidly of the legal and moral aspects of their behavior (lawyer must tell client that the SOL as ran).
*Problem 1-4: Should M and F tell a client the chances of getting caught doing something illegal, for example, deducting the cost of a child’s wedding as a business expense? How about the chances of getting caught withholding a document in response to a legitimate request for production of documents?
Tax fraud is a federal crime.You must tell your client that it is a crime and that it may result in litigation sanctions in the case of withholding documents. (Client may lose the case because of a dismissal).
*You can decline to represent a client. However, once you take on a client, you must do what he wants.
*Compliance counseling- The mass of lawyers who advise and then assist with noncompliance in a situation could, in the vigorous pursuit of their clients’ interests, effectively nullify the laws.
*Problem 1-2: During negotiations, a lawyer for the buyer agrees on behalf of his client to pay an extra $50,000 because, the lawyer observes, “the land is zoned for ten lots.” M and F, representing the seller, knows that the lawyer is mistaken. Should M and F close the deal without correcting the mistake?
This is a unilateral mistake.There is only relief for the mistake when there was a misrepresentation (M or F misspoke first; this would be fraud).(If there was nothing done to induce reliance on a misstated fact, then there is no problem on M and F’s side).
Can represent the client zealously within the bounds of the law if there was no misrepresentation.
*Problem 1-5: During negotiations, a lawyer for the buyer agrees on behalf of his client to pay an extra $50,000 because, M, representing Seller, has assured him that “the land is zoned for ten lots.” M had checked the zoning just before the negotiation and in fact knew it was zoned for only one lot. Is M in trouble? What kind?
This is deliberate fraud and thus there is no contract.The client will lose the deal.
Lawyers cannot lie.M will be subject to professional discipline.Often will result in disbarment in this case.
Client can attempt to recoup his loss from M.Client will sue M for malpractice.Client can sue for damages (punitive).
Liability to third party.
Summary of what kind of trouble (Professional discipline, liability to third party, liability to client). Possibly also criminal fraud (lawyer could be indicted for criminal fraud).
*Citizens and lawyers can be charged for crimes. Citizens and lawyers can be defendants in tort suits.
-The Law Governing Lawyers: RLGL section 1:
Rules of Professional Conduct: RLGL section 5: Violation results in professional discipline.
General law (civil and criminal, statutory and common law) applied to lawyers: RLGL section 6 (procedure, evidence, criminal sanctions, civil and equitable remedies beyon
isciplinary Counsel, State Bar Assn.); appeal to highest state court
-Burden of Proof: Different:
Admission: On Applicant
Discipline: On Disciplinary Authority
-Rule 8.1: Bar Admission and Disciplinary Matters: 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.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1)the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved;
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
-Rule 8.4: Misconduct:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . .
By doing something that somebody else says to do, whether it’s right or wrong, that is a ratification of their conduct.