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Legal Profession
Villanova University School of Law
Brogan, Doris DelTosto

Legal Profession

Brogan

Spring 2014

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

Instrument

Collaborator

Director

AKA

Hired Gun, plumber, cab driver, puppet, prostitute, client centered

Wise counselor, teacher, friend, statesman, translator

Traditional, parentalist, professional, officer of the legal system

Focus

Client’s rights and goals

Client’s interests w/in the bounds of the law

Values

Clients values dominate

Joint moral accountability

Lawyer’s values dominate

Philosophy

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. If it had been a felony, its an automatic suspension

3. At the time of admission to the bar there is a different standard

a. 2 dui’s during law school and refused to admit a problem and accept any kind of treatment or evaluation, so not given admission

4. Recommendations – take responsibility

a. Get an evaluation and begin treatment before you want to take the bar b/c it shows taking responsibility

5. The bar admission council basically wants to make sure that whatever your problem may be, it will not affect your future clients

iii. C — What if Moore believes in white supremacy and has announced plans to become General Counsel to the KKK White Council?

1. The supreme court can ask what groups you belonged to – they can’t ask generally, but if you are a member of the communist party for example

a. Hale Case p. 32 – refused to admit b/c of racist beliefs b/c he said he would only obey the rules of professional conduct only when he felt like it

2. So if she agrees to obey the professional standards, she’ll probably be admitted

a. But if she does engage in unlawful discrimination (evidence she has acted out on these beliefs) then could be denied – the belief is NOT enough

II. Professional Discipline

a. Rule 8.4 Misconduct

i. Its professional misconduct for a lawyer to:

1. 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

2. Commit a criminal act that reflects adversely on the lawyer’s honestly, trustworthiness or fitness as a lawyer in other respects

3. Engage in conduct involving dishonesty fraud deceit or misrepresentation

4. Engage in conduct that is prejudicial to the administration of justice

5. State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of

6. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law

b. 2-2.Fox meets his close friend and law school roommate, Prosecutor, for dinner. Prosecutor tells Fox that he’s just learned he has only months to live before he dies of colon cancer. After several drinks, he also confides that two years ago he suppressed exculpatory blood evidence in order to obtain a murder conviction. What should Fox do?

i. Prosecutors have a constitutional obligation to disclose evidence that would clear the defendant under the Brady act

ii. 3.8d – special rule for prosecutors that models the Brady Act giving them a professional obligation to turn over evidence making them subject to discipline for violation

1. 3.8d – make timely disclosure to the defen

alternative representation

c. Should a lawyer care about their reputation in regards to which cases they take on?

i. Should take on a client w/o considering the consequences of doing so – Rhode

1. So since the majority of this case would be played out in litigation in “scorched earth” type litigation, the victims of the holocaust would be somewhat exploited

d. Here the objective is for Credit Suisse to pay the least amount of money possible

i. The most money will be made from the client in discovery

e. With a delicate situation – Credit Suisse wants to make themselves look better, so they are going to want the “Jewish” lawyer on their side

i. Decided to take the case if the client agreed NOT to engage in scorched earth tactics and negotiate a quick settlement (since the survivors were elderly)

ii. It would preserve the client’s image w/ a quick settlement

f. MP – before you take on a client, you can limit what you are willing to do for the client 1.2c

i. But once you take on the client w/o any ground rules, you are bound to what the client wants

ii. This is a good example of the limitation of the scope of representation

II. 3-2 Should Martyn and Fox represent an anti-gay and lesbian group that pickets the funerals of deceased soldiers from the Iraq War as a way of protesting the armed forces’ willingness to recruit gays and lesbians under the “don’t ask don’t tell” policy?

a. Model Rule 1.2 b – don’t have to agree w/ them to take them on

i. MP – don’t have to take them on if you don’t agree w/ them either

b. Model Rule 6.1b1

i. B – provide any additional services through:

1. 1 – delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate

a. i.e. services for the public good

i. neo-Nazi group wanting to march through Jewish neighborhood represented by Jewish lawyer seeking to protect 1st amendment rights

ii. black NAACP attorney representing KKK (pro bono) v. the government who wanted them to turn over their membership lists on the idea if they have to turn them over, then what about the NAACP, etc? – then fired from NAACP for doing so

III. 3-3 Should Martyn and Fox represent a client who wants to disinherit an adult child b/c he is married to a person of a different race and religion? Would it make a difference if the prospective client near death and Martyn and Fox is the only available law firm?

a. Model Rule 1.2 b

b. Freedman – just don’t take on the client whose viewpoints you just don’t like

i. But here you wont know it until after you have taken them on

c. Rhode – wouldn’t want to be a part of what this person is doing to his kids – Rhode focuses on the individual case

d. Best response – advise client what is really going to happen – the family will be split apart and it will have an impact on your relationship w/ that person and it will be forever broken

i. Advise them of alternatives like writing them a letter and/or setting up a trust that makes it hard for the spouse of that person to get at the money

e. If you are the last person in town available to do something, you may have moral obligations to do something

i. This may be an important factor to consider in deciding to do something

IV. 3-4 Should Martyn and Fox represent defendant on death row who brutally abused and then stabbed 2 young girls? How should we respond if a court appoints us to represent the defendant?

a. Model Rule 6.1 – Pro Bono Services

b. Model Rule 6.2 – Accepting Appointments

i. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as

1. A – representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

a. One of the rules of professional conduct is that a lawyer must be competent, so incompetency can be a defense

i. i.e. show that you are a trusts and estates lawyer and haven’t practices criminal law

b. conflict of interest – the blatant conflict of interest is the best defense

2. B – representing the client is likely to result in an unreasonable financial burden on the lawyer; or

a. Means that it must take over your practice and its all you will be working on

3. C – the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or lawyer’s ability to represent the client

a. The repugnancy exception means personal repugnancy and is a high threshold

i. Best argument is from a female attorney who has been raped, then knowing people, then having worked w/ people who were victims of said crime