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Legal Ethics
University of Toledo School of Law
Pizzimenti, Lee Ann

Legal Ethics
Fall 2010
Lee Pizzimenti
 
1. Introduction
·         Ethics Source
o   Philosophy
o   Rules/Standards: Model Rule
o   Related areas of law e.g. Agency/Partnership, Civil Pro: R. 11, 26, work product privilege, Con Law: 1st Amend, 6th Amend, Contracts—fee contracts, when lawyer-client relationship begins, Crim Law/Procedure: lawyers can’t assist in crime, Evidence: Attorney-client Privilege, Torts: malpractice Remedies : fee disgorgement
·         Theories
o   1. Rights based, deontological: autonomy of client/individual: focus on act: character of act itself—Is this right? maxim: persons as ends not means; respect—wrong to use people as means
·         1. Using 3rd parties to advance clients ends
·         2. Don’t like what client is doing—paternalistic towards client
·         Agency law is in line with deontological theory
o   2. Consequential (utilitarian): focus on consequences maxim: what rule would produce the greatest good for greatest # Problem—may help majority but may violate individual rights
o   3. Relational, ethic of care: motivating force behind agency law
2. Judicial and Professional Regulation of Lawyers: Ls serve public & should protect public
·         Admission to Bar Requirements (State SC regulates)
o   Education: ABA accredited school
o   Bar Exam (or waive, practiced in another State, Privilege & Immunities Cl. prevents citizenship/residency requirements)
o   Oath: Federal Ct. Requirements, often State requirements, SC bar 3 yrs out of law school
o   Character and Fitness
§ When: Evaluate character at the time of admission
§ Burden: applicant—Standard: Clear and Convincing Evidence
§ R. 8.1 Bar Admission/Disciplinary Matters: Applicant for Adm. to bar, L in connection w/ a bar admission app or disciplinary matter SHALL NOT
·         Knowingly make false statement of Material Fact OR
·         Fail to disclose a fact necessary to correct misapprehension known to the person to have arisen in the matter, or knowingly fail to response to lawful demand for info from an admission or disciplinary authority UNLESS disclosure of info protected by R. 1.6
§ Evaluates: trust, honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations, civility, professionalism
§ Problematic Issues: criminal record, academic misconduct, neglect of Prof and financial obligations, anything involving money, lack of candor, drug & alcohol, Taking advantage of people
·         Would the behavior if done by a lawyer would it be grounds for discipline?
·         R 8.4, anything that violates Prof. R for L will be looked at for admission purposes
·         Lack of Respect for Legal System In re Application of Converse p. 24
·         Pattern of Behavior (not isolated incident) Converse
§ Proper Qs: anything w/ a rational relationship to Fitness
·         1st Amend: must be balanced with public protection—group membership if relevant to fitness e.g. Communist Party, Orgs overthrow gov’t.—Too Broad: list all memberships”
·         Status: status alone not enough to prevent e.g. alcoholic but problem if not taken care of
o  May not be denied admission b/c of status but conduct right now doesn’t qualify to practice law
·         Disabilities: Can admit someone if otherwise qualified and reasonable accommodations can be made—State ex rel. OK Bar Assn v. Busch p. 42
o  Disability has to have something to do with your violation e.g. lying not a symptom of ADD State ex rel. OK Bar Assn v. Busch pg 42
o  Applicant failed to treat alcohol problem & attributed it to immaturity In Re Wall Ralls—supp
§ Pro hac vice: “for this time” Should grant unless legitimate state interest, (often require an in state attorney to oversee)
·          No due process right to pro hac vice, right to counsel but no right to particular counsel; prior to being granted pro hac vice there are no due process rights
·         due process rights if revoked: court can’t just revoke for no reason
·         If repeated Court appearances then should waive in or associate with lawyers in state or take State bar
·         Discipline
o   Source: State SC inherent powers to discipline (federal USSC)
o   Process: complaint filed by anyone, client, another lawyer, judge, Notice to L, Hearing
§ Person filed complaint absolutely immune from suit for reporting
o   Standard: quasi-criminal (more than civil case); procedural safeguards
§ Clear and Convincing b/c quasi-criminal
§ Rules of Evidence applies
§ Fifth Amendment applies—can’t force lawyer to testify against interest
§ Double jeopardy doesn’t apply p. 47-48
·         In re Ruffalo—due process applies, notice of charge, right to supeona documents, cross exam witness
o   Appeals:  through courts or state bar, Ultimately by State SC (absent fed Con claim)
o   Sanctions
§ Private reprimand:  
§ Public reprimand or censure
§ Suspend: either for stated amount of time or indefinite suspension—e.g. suspended unless or until you clean up your act
§ Disbar—some states done and can’t come back in other similar to indefinite suspension
§ SC can require training, restitution, re-taking bar, monitoring, etc.
§ Co-mingling money = suspension, stealing money = disbarred
o   ABA Factors for sanctions p. 54
§ Duty violated, (duty to C, or duty to Court as officer)
§ lawyer’s mental state, (intentional)
§ the actual or potential injury cause by misconduct and
·         don’t have to have actual injury (unlike torts)
§ existence of aggravating or mitigating factors see pg 55
·         Aggravating: Past discipline, Dishonest/ selfish motive, Pattern of misconduct or multiple offenses, Obstruction of a disciplinary proceeding, Refusal to acknowledge responsibility, Vulnerable Victim, Illegal Conduct, Substantial experience in law practice—can be A or M, Disability & Emotional/Personal problems if NOT treated
·         Mitigating: Personal and Emotional problems if in treatment, Physical or Mental disability—M if treated, Absence of prior violations or selfish motive, Timely efforts to rectify harm, Cooperative attitude towards disciplinary boards
·         Ohio hasn’t adopted ABA
·         Grounds for Discipline (conduct subject to D)
o   R. 8.4: Prof. Misconduct to:
§ (a) Viol

jurisdictions rules (not on exam 8.5(b)?)
3. Representation of Client
·         General R: No duty to take a particular C
o   R. 6.2 Com. 1: don’t have to if repugnant to you but maybe should consider if cause is unpopular or if they are poor, etc.
o   R 1.2 (b) representation of client does not constitute an endorsement of views 
o   R. 1.2 Com. 5: Legal representation should not be denied to people unable to afford services or whose cause is controversial or unpopular
·         Limitations on Representation R. 1.2(c): May limit representation if
o   1. reasonable under the circumstances AND
o   2.  client gives informed consent
§ One way to represent poor: I will do some things to help more people
·         Accepting Court Appointments R 6.2: A L shall not seek to avoid appointment by tribunal to represent a person EXCEPT Good Cause such as:
o   (a) Representing Client likely to result in violation of R.s
§ Conflict of Interest (represent to co-d’s in criminal case)
§ Client doesn’t want counsel—or fires counsel
§ NOTE—Courts have rejected argument I’m a real estate lawyer and not criminal BUT if Can’t be competent under Model Rule 1.1
o   (b) Likely to result in Unreasonable Financial burden on L OR
§ Com. 2 last sentence—financial sacrifice so great as to be unjust—whole practice will go under, won’t be able to take other clients
o   (c) the client or cause is so repugnant to L as to likely impair the C-L relationship or L’s ability to represent
·         Pro-Bono (not technically mandatory)
o   1. R 6.1: L has responsibility to provide services for those unable to pay
o   2. R 6.1 (a): Should aspire to do 50 hrs, substantial majority to
§ Persons of limited means or Organizations who represent them (may give $)
o   3. R 6.1(b) AND Provide additional services with reduced or no fee (organizations, persons of limited means, improving law and legal system)
·         Court Appointments
o   Courts have inherent authority to compel L, to assure fair and just adjudicative process, usually criminal not civil unless basic right such as custody of children
o   Lane Factors Civil Case
§ 1. The factual complexity of the case
§ 2. The ability of the P to investigate
§ 3. The existence of conflicting testimony
§ 4. P’s ability to present his claims and
§ 5. Complexity of the legal issues
§ Additional factor: P’s ability to obtain counsel on his own
o  Reason for not getting lawyer is that P is indigent—must be about equal access not market condition