Professional Responsibility Outline

PROFESSIONAL RESPONSIBILITY
DONALDSON
SPRING 2012
 
I.                   The Legal Profession: Background and Fundamental Issues
a.      Development of standards of professional conduct
                                                              i.      1969: Model Code of PR was adopted almost universally by state supreme courts around country
1.      9 canons were axiomatic norms
2.      Disciplinary rules were mandatory in character: violations would subject attorney to discipline up to and including disbarment
3.      ethical considerations were aspirational in character: said to be unenforceable but hopeful statement of profession’s consensus about proper lawyer behavior
                                                            ii.      1983: Model Rules of Professional Conduct that were structured in Restatement format—black letter rules followed by explanatory comments and notes
                                                          iii.      2002: ABA adopted extensive revisions to 1983 Model Rules
                                                          iv.      Model Rules have only status of proposed law and ABA must lobby state and federal courts to enact these Rules as positive law
                                                            v.      4 important sources of authority:
1.      court decisions
2.      ethics opinions issued by ABA and state and local bar associations—advisory opinions that respond to specific question or assumed state of facts (not formally binding)
3.      Restatement Third, The Law Governing Lawyers
4.      regulations issued by federal agencies (e.g., SEC)
b.      Ethics of duty v. ethics of aspiration
                                                              i.      Ethics of duty: there is minimum level of ethics to which lawyer should adhere
                                                            ii.      Ethics of aspiration: what the best lawyer would do (even though we’ll never reach these standards
                                                          iii.      Model Rules reflect more ethics of duty
                                                          iv.      Maintaining satisfaction between rule ethics and personal ethics: dilemma is between what you feel like you should do as a lawyer b/c it is morally right and what you have to do under legal rules
c.       Consequential approach: illustrated by utilitarianism
                                                              i.      Act utilitarianism: asks which behavior will lead to more happiness in  or well being in particular situation
                                                            ii.      Rule utilitarianism: takes view that there is value in establishing appropriate standards of behavior for particular classes of cases
1.      wouldn’t ask how best to produce maximum welfare in unique case but what principle or course of conduct is most appropriate for class of similar cases
d.      deontological approach: tend to be based on set of first principles, such as responsibility or equal rights
                                                              i.      duty category says that there are particular general principles of moral responsibility that can be derived logically and applied universally (golden rule)
                                                            ii.      rights category asserts that individuals have certain human rights that lawyers should help preserve and protect
1.      sees particular behavior of lawyers as appropriate without regard to what effect would be on general happiness or well being of rest of society produced by rights
e.       ethics of care: focus on lawyer’s acting as healer who takes comprehensive view of her situation and seeks to make everyone, not just client, better off
II.                Regulation of the Legal Profession
a.      Admission to Bar
                                                 i.            Lawyers are regulated by courts, not state bar association
                                               ii.            What is required for lawyers in admission for and application to bar?
1.         must not only pass bar but also possess proper character and fitness to practice law
a.      court has to rely on lawyers to tell truth
b.      uphold reputation of bar
c.      protect clients
2.         Rule 8.1 (bar admission and disciplinary matters): applicant for admission to bar shall not:
a.      Knowingly make false statement of material fact
b.      Fail to disclose fact necessary to correct a misapprehension known by person to have arisen in matter, or knowingly fail to respond to a lawful demand for info from an admissions or disciplinary authority, except that lawyer doesn’t have to disclose info otherwise protected by 1.6 (confidentiality)
3.         comment 3: lawyer representing an applicant for admission to bar, or representing a lawyer who is subject of disciplinary injury or proceeding, is governed by rules applicable to client-lawyer r’ship
                                             iii.            Other attempts to regulate
1.         state may not require bar applicant to be US citizen—that would deny alien 14th Amendment guarantee of equal protection of law
2.         state can’t limit bar admission to state’s own residents—would violate Privileges and Immunities clause
                                             iv.            What does it mean that lawyers must have good moral character?
1.         Rule 8.4 (misconduct): it is professional misconduct for lawyer to:
a.      Violate or attempt to violate Rules or knowingly assist someone else to do so
b.      Commit a criminal act that reflects adversely on lawyer’s honesty, trustworthiness or fitness as lawyer
c.      Engage in conduct involving dishonesty, fraud, deceit or misrepresentation
d.      Engage in conduct that is prejudicial to administration of justice
e.      State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate rules
f.       Knowingly assist judge or judicial officer in conduct that is violation of rules
2.         comment 2: lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice
                                               v.            What does law license allow you to do?
1.         Rule 5.5(a): lawyer can’t practice law in jx in violation of regulation of legal profession in that jx or assist another in doing so
b.      Lawyer discipline and disabled lawyer
                                                 i.            rule 1.1 (competence): a lawyer shall provide competent representation to client which requires legal knowledge, skill, thoroughness and preparation reasonably necessary for representation
1.         comment 5: competent handling includes inquiry into and analysis of factual and legal elements of problem and use of methods and procedures meeting standards of competent practitioners
a.      includes adequate preparation
2.         comment 6: lawyer should keep abreast of changes in law and its practice, engage in continuing study and education and comply with all CLE requirements
                                               ii.            Rule 1.3 (diligence): lawyer shall act with reasonable diligence and promptness in representing a client
1.         comment 1: lawyer should act with commitment and dedication to interests of client and with zeal in advocacy upon client’s behalf
                                             iii.            Rule 8.4: says you are subject to professional discipline for violation of any of rules set forth which was significant change in legal profession (previously could be disciplined for conduct unbecoming of lawyer
1.         eliminating arbitrariness: move to codification of rules of professional conduct was effort to avoid an arbitrariness
                                             iv.            Purposes and functions of discipline process:
1.         to identify and remove from profession all seriously deviant members (cleansing function)
2.         to deter normative deviance and maximize compliance with norms among attorneys (deterrence function)
3.         to maintain level of response to deviance sufficient to forestall public dissatisfaction (public image function)
                                               v.            Which state can discipline a lawyer?
1.         MR 8.5:
a.      Disciplinary action: lawyer admitted to practice in this jx is subject to its disciplinary authority regardless of where lawyer’s conduct occurs; lawyer not admitted in this jx is also subject to its disciplinary authority if lawyer renders or offers to render any legal services there; lawyer may be subject to disciplinary authority of both this jx and another jx for same conduct
b.      Choice of law: in any exercise of disciplinary authority of this jx, rules applied as follows:
                                                                                               i.          For conduct in connection with matter pending before tribunal, rules of jx in which tribunal sits, unless rules of tribunal provide otherwise; and
                                                                                             ii.          For any other conduct, rules of jx in which lawyer’s conduct occurred, or, if predominant effect of conduct is in a different jx, rules of that jx shall be applied to conduct; lawyer shall not be subject to discipline if lawyer’s conduct conforms to rules of jx in which lawyer reasonably believes predominant effect of lawyer’s conduct will occur
                                             vi.            What’s the duty involving another lawyer’s misconduct?
1.         MR 8.3:
a.      Lawyer who knows that another lawyer has committed a violation of the Rules that raises substantial question as to that lawyer’s honesty, trustworthiness or fitness as lawyer in other respects, shall inform appropriate professional authority
b.      Lawyer who knows that judge has committed a violation of applicable rules of judicial conduct that raises substantial question as to judge’s fitness for office shall inform appropriate authority
c.