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Professional Responsibility
University of Toledo School of Law
Martyn, Susan R.

Legal Ethics Outline
Chapter 1: Lawyers, Role, and Law
I.            1-1 Should Martyn & Fox 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.       Dilemma between zealously serving clients vs. filing frivolous lawsuits
                           i.      What if the opposing side did not file a motion to dismiss?
1.       Or the opposing side was not represented and won’t know of the defense
                          ii.      Catholic abuse case example – file anyway b/c hoping for an appropriate moral response
1.       i.e. its immoral for the church to raise the defense b/c people actually harmed
b.       SOL is an affirmative defense which is waived if not pleaded
c.        Answer – basically depends on what the claim is
                           i.      A lawyer can ethically refuse to represent someone by agreeing to represent them and raising the defense can say they will only represent if negotiate a settlement
d.       What if we are fairly sure the opposing party won’t be represented?
                           i.      Freedman — Until there is a contracted relationship – a lawyer acts entirely w/in the scope of your own autonomy
1.       If there is a k relationship – it is up to the client
                          ii.      Rhode — Should lawyers care about the wealth disparity between parties or if one side is represented and the other not
II.            1-2 During negotiations, a lawyer on the other side agrees on behalf of his client to pay an extra $50,000 because the land is zoned for ten lots. Martyn & Fox knows that the lawyer is mistaken. Should Martyn & Fox close the deal without correcting the mistake?
a.       This is a factual mistake
b.       Rhode – if you aren’t sure what you would do in these type of situations, ask non-lawyer who you trust what to do
                           i.      They would say that you tell the other side from the stand point that you will have to work w/ them in the future and would hope they would help you
c.        If it’s a unilateral mistake, you get the benefit of the bargain and it goes forward
d.       The Law of Fraud – needs a representation (speaking or holding out in some form)
                           i.      A shrug is a representation
                          ii.      An assumption is not a representation b/c the other side has in no way created the misrepresentation
e.        Freedman – client should choose, but only if they are aware of all of the legal consequences
                           i.      Okay to proceed if client agrees to assume the risk of future litigation
f.        Answer – client must be given information of legal consequences
                           i.      Consider future business representation of client as well
g.        What if they materially misrepresented a material fact that the other side relied on?
                           i.      The 3rd party can sue for fraud
                          ii.      Your client can sue you for malpractice
                        iii.      It can destroy a reputation
                        iv.      An attorney who commits fraud can be disbarred
1.       The Ohio Rules of Professional Conduct govern this (The Law Governing Lawyers)
a.       The ideas in the professional code come from common law
b.       These rules can be applied by a court as evidence/relevant facts not negligence per se
III.            1-3 Should we advise our client to sign an agreement in a divorce case that settles property division and child support where the opposing lawyer mistakenly believes alimony can later be negotiated, but we know that the law will bar such later claim? What if the opposing lawyer is a best friend and has not handled many divorces?
a.       This is a mistake of law in private negotiations
b.       Answer – represent the client who does not want to pay alimony and will not be happy if you disclose
                           i.      The friend will be sued for malpractice
                          ii.      Its hard to re-open a final divorce decree
c.        Freedman – if we settle, they will sue to re-open, your relationship w/ your kids will spoil w/ this quick deal b/c the other spouse will bad mouth you…represent the client before professional responsibility
                           i.      Take into account the future legal expenses incurred by your client b/c of more litigation
d.       Gillers – w/o thinking twice, you tell the other attorney the law b/c we have a professional responsibility before telling the clients about it
IV.            1-4 Should we tell a client the chances of her getting caught doing something illegal (i.e. deducting a child’s wedding as a business expense? How about failing to produce a document in response to a legitimate request for production of documents?
a.       Freedman – must tell the client that its illegal and moral responsibilities
                           i.      They should be counseled as to where the law ends and assist them in carrying out their lawful decisions – if the client is acting illegally, you can be liable for aiding and abetting in fraud, etc.
b.       Rhode – if the legal rule is clear and the chance of getting caught is low – the lawyer is basically assisting their client in breaking the law and effectively nullifying the law
V.            Lawyers’ Roles
Hired Gun, plumber, cab driver, puppet, prostitute, client centered
Wise counselor, teacher, friend, statesman, translator
Traditional, parentalist, professional, officer of the legal system
Client’s rights and goals
Client’s interests w/in the bounds of the law
Clients values dominate
Joint moral accountability
Lawyer’s values dominate
Deontological, duties to and rights of clients
Respect for clients, concern for outcome and professional relationship
Utilitarian, greatest good results from expert legal advice
View of Law
Malleable means to pursue client’s desires
Moral norms that apply to human behavior
Means to promote social stability and order
a.       Instrument (Freedman)
b.       Collaborator – this is the safest and most moral position
c.        Director (Rhode)
Chapter 2 – Licensure
Rules 3.8, 5.1, 8.3, 8.4
Rst. 5
-BOP is on the applicant
-Lawyers are the only profession regulated by the judicial branch, so standards for admission to the bar are court created
I.            Bar Admission
a.       Converse Case (p.24) – dean refused to sign off on bar exam and suggested further examination should be done on the applicant
                                 i.      Converse was denied the ability to sit for the bar, an appellate review is done and then the state supreme court makes the final decision
                                ii.      The court noted that he had a pattern of behavior and was prone to hostile abusive behavior
1.       And he tended to attack people and did so in an arena outside of the established procedures for handling disputes
2.       MP — It was not based on what he said or his tone of voice – it was his behavior
                              iii.      Look at it from the view had he been in practice and could he have been disciplined
1.       Rule 4.4 Respect for the rights of 3rd persons – p 75
a.       In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such person.
                              iv.      In re Baumgartner – repeatedly harmed client’s interests, manipulated the legal system, and publically accused dozens of people of criminal wrongdoing and whose actions were done as a means to retaliate against anyone who defied her — this is an example of erratic behavior after admitted and she was disbarred.
                               v.      Financial liability and irresponsibility
b.       2-1.Martyn & Fox represent Mary Moore, who is about to graduate from law school.
                                 i.      A — Will Moore be denied admission to the bar b/c she included as text, w/o attribution, 7 direct quotations, 3 from cases and 4 from law review articles, in a seminar paper in law school?
1.       Does this indicate that she has a character trait of being dishonest?
a.       If was disciplined in law school for doing this, then must be reported
b.       Radtke – part time professor at local community college, who wanted to get tenure attempted to publish something, but the publisher claimed it was plagiarized and he was fired
                                                                                                i.      On his bar application he did not disclose that he was fired and was not admitted for not disclosing this
2.       The bar is really looking for a pattern that indicates future probability of dishonesty
3.       Here this one instance is probably not enough, even if documented
                                ii.      B — What if Moore pled guilty to drunk driving 5 years ago and again last year?
1.       Note 10 p. 31 – 2 DUI convictions during law school combined with failure to accept responsibility for alcohol abuse precluded applicant from admission until he demonstrated sustained period of compliance w/ alcohol treatment programs…said that 3 years of sobriety was not enough to est. that the applicant’s past drug/alcohol abuse would not recur
2.       Look to the standard of if this person had been a lawyer when this conduct took place, could they be disciplined?
a.       This is a close case as to whether she could be disciplined as a lawyer, b/c once licensed the BOP shifts to the bar to show that you are no longer fit
                                                                                                i.      Drunk driving is a misdemeanor
1.       However if it’s a crime related to the fitness to practice law, you can still be disciplined
a.       Argument against is that no client has been harmed
b.       In support is that it’s a factor than can lead to malpractice issues

                 ii.      8.3 c – if know of the violation through the client-lawyer relationship, then 1.6 is triggered and informed consent must be given
1.       1.6 standard – information related to the representation
a.       If you would not have had this information, but for your representation, then it is protected
2.       Even after received the informed consent, the lawyer still must ask the client if its okay to report the misconduct to the disciplinary council
a.       This disclosure gives the client options as to how they want to remedy whether its report to council or sue in tort
                                                                                                i.      So if you do file a civil suit, there is an advantage to also file w/ the council b/c he would have more incentive to pay the money back to avoid the bar discipline
b.       Writing a letter to the other lawyer saying that you are going to file a complaint w/ the bar if they don’t repay the money is okay if you intend to make the complaint
3.       Purpose of 8.3 is to bring to attention of the authorities so that others are not hurt
                              iii.      Himmel – came to lawyer and said just get me my money back, but he never told the bar about the other lawyer’s misconduct and he continued defrauded other clients and demanded that the other lawyer repay his client 2x as much as he stole
1.       Himmel was disciplined for not telling and demanded more money
                              iv.      Realize that it’s usually not an ISOLATED incident!
e.        2-4 Martyn discovers that an associate in the firm has been charging clients for phantom travel expenses, thereby generating money that he has used to fund a gambling addiction. Martyn tells Fox she has investigated, the associate has repaid the money, and associate has joined Gambler’s Anonymous. Should Fox accept that solution?
                                 i.      He lied and stole money from his clients and Fox knows it and it is a serious violation of the rules, so under 8.3a
1.       But under 8.3c, it is subject to client consent and can only tell the bar if he has informed consent from the client under 1.6 – MP – Do I HAVE to tell the Client?
a.       The client MUST be told under 1.4 (have to keep clients well informed and keep them posted on any material news) and might even establish more trust in the long run w/ Fox
b.       This is just what we know, there could be more instances
                                ii.      Real Case – it was just one instance and they fired him, but didn’t tell the client or the bar and then later took a job w/ NYC and embezzled millions so the mayor filed a complaint against the law firm
                              iii.      Busch – p 41
1.       Gets a default judgment of $10 million dollars – sends letter to doctor saying I wont execute on personal assets and will sue insurance, but doctor doesn’t have any, so client gets nothing and he lies to cover it up, etc. and he claims his defense has having ADD
                             iv.      5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
1.       (a) a partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules
2.       (b) a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules
3.       (c) a lawyer shall be responsible for anther lawyer’s violation of the Rules if:
a.       (1) the lawyer orders or, w/ knowledge of the specific conduct, ratifies the conduct involved, or
b.       (2)the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to make reasonable remedial measures