Brogan_Legal Profession_Fall_2012
Introduction:
· Lawyers are a self regulation profession
· What is a “Profession” (pg 5)
o Have to be licensed
o Commitment to serving others
§ A lawyer has a responsibility to act in their clients best interest instead of their own
o Specialized training and skill set
o Standard of care – unusually carful job
o CLE’s and law school = standardized training
o Distinct ethical code
· Legal Ethics
o Principals of conduct that members of the profession are expected to observe in the practice of law
o Not whether the conduct is moral but whether the conduct in question violates the ethics code
· ABA’s Model Rules
o They are just models not “official rules”
o Most states have adopted some form of the model rules
o Delaware has adopted the Model rules almost verbatim including the numbering.
· ABA (American Bar Association)
o Accredits and regulates law schools
Admission (pg 53)
· Basic requirements:
o Accredited undergrad college
o ABA accredited law school
o Application for admission to the bar
o Character and fitness
§ Chart on page 60-63 of possible C&F issues and outcomes
§ Things that involve money
§ Things that involve dishonesty
§ If there is an issue, the earlier you take steps to fix the problem, the more time elapses from the even that you can show positive activity, the better your chance of being admitted
o Passing score on the bar examination
o CLE requirements
· “Pro Hac Vice”
o When a lawyer seeks admission to litigate only one case, the lawyer may be admitted by association with a lawyer admitted in the state
· “Waive in”
o Some states allow candidates to “waive in” to the bar if they pay a fee, have practiced for a specified number of years in another state and satisfy the character and fitness requirement
Lawyer Liability
· Duty to report misconduct (pg 101)
· Rule 8.3 the “snitch rule”
Professional Discipline
· Most common conduct that leads to discipline:
o Misappropriating client funds, comingling funds, missing court filing deadlines, failing to respond to client communications, fraud, tax evasion, and neglecting cases
o Most discipline stems from fraud
· Lawyer can be disciplined for any conduct that us dishonest or prejudicial to the administration of justice or that reflects a lack of fitness to practice
Rule 8.3 Reporting Professional Misconduct – “Snitch Rule”
· A lawyer who fails to report serious misconduct by another lawyer may be subject to discipline
o Has been used as a weapon against other lawyers
· Actually knows standard
· Pg 101
· A lawyer is not required to report:
o 1. Information protected by confidentiality rules
o 2. Information learned while participating in a layers assistance program
· do not need client approval before reporting misconduct and a client cannot veto a lawyers reporting of misconduct
· “Law firm Rule” (pg 108)
o NY has the first and only rule that attempts to hold an entire law firm responsible for lawyer misconduct even when an individual culprit cannot be identified.
· Himmel Case (pg 105)
o Illinois Case where a lawyer tried to recover unpaid settlement money for a client form another lawyer without reporting that lawyer to the disciplinary board. The lawyer was disciplined.
o Too many of the states lawyers were using skeletons in an opponents closet for leverage
o Most state courts have been reluctant to follow Himmel.
o After Himmel a number of attorneys have been charged with violating 8.3 and disciplined for failure to report the misconduct of another lawyer
Rule 5.3 Non Lawyer Employees
· Responsibility of lawyers who supervise non lawyer employees for ensur
Consent:
o If a lawyer (with client’s permission) reveals that he is representing the client, he must then avoid disclosing confidential information about the client’s matter
o The facts of the consultation or representation is confidential
· Impliedly Authorized?
o
· People other than your client:
o A lawyer could be held liable under tort law for revealing confidential information to the detriment of a third party
· E-mail Communications
o Unencrypted email often affords sufficient privacy
o Should inform you client not to use work e-mail because often times people read it
Rule 1.6 Confidentiality Of Information
· (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Information that MUST be protected:
· All information relating to the matter on which the lawyer is representing the client, except information that is generally known
· Personal information relating to the client tat the client would not want disclosed
· Information learned from the client, and informant learned from interviews, documents, photographs, observation, or other sources
· Information relating to the representation acquired before the representation begins (such as during a preliminary consultation) and after the representation terminates
· Notes or memoranda that the lawyer creates relating to the matter
