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Legal Profession
Villanova University School of Law
Brogan, Doris DelTosto

LEGAL PROFESSION

Professor Brogan – Spring 2015

I. Lawyers, Their Roles, and the Law

A. Views of Legal Profession

1. Freedman: Understanding Lawyers’ Ethics

a. Lawyers are hired guns who must work for client, do what client says

b. Once you take a client, you have no right to impose your moral views on your client

c. Pick clients with care, lawyer is not untethered from morality because it’s lawyer’s choice to pick or reject a client

d. Clients call the shots, lawyers represent zealously

e. Emphasis on individual autonomy: when lawyers act, act for and as the client, can’t substitute lawyer’s judgment for client’s

f. Believes in adversarial system – advocates on both sides arguing for their side, best way to get to truth of matter

g. Stresses the individual autonomy of the client à role of the lawyer is to advance the client’s cause and tell her everything so that she can make informed decisions to further her cause

i. Access to the legal system for clients à client is only engaging with you in order to navigate the legal system

ii. Genius of the adversarial system à both sides are doing this

2. Rhode: In the Interests of Justice

a. Emphasis on lawyer’s personal morality, substitute it for that of the client

b. Problem with adversarial system: it’s not equal

i. Money, talent isn’t equal – outcome can depend on what lawyer you have

ii. Permits “all the justice that money can buy”

iii. Assumes that every case goes to trial

c. Lawyers should be able to direct things in some cases

d. Professional action shouldn’t erode moral personal beliefs

i. Alternative framework should have lawyers accept personal responsibility for moral consequences of professional actions

e. More paternalistic view à lawyer knows best

B. The Client-Lawyer Relationship

1. Lawyer’s personal sense of morality and the professional codes should foster a model of the client-lawyer relationship

2. Two Versions of Ethics

a. Adversary Ethic: lawyers have fiduciary duty to represent clients zealously, motivated by client’s values and goals, lawyer neutral and partisan, not accountable for client’s conduct

b. Public-Interest Ethic: lawyers morally accountable for consequences of their actions, consider social harm

C. Sources of Law

1. Rules of Professional Conduct

a. Lawyers licensed and regulated by judicial branch

b. ABA’s model professional code adopted by all states

c. Disciplinary proceedings: require clear and convincing evidence, administrative in nature, allow for appeal to highest state court

2. General Law

a. Violation of RPC may be evidence of breach of standard of conduct, breach of fiduciary duty

b. Malpractice suits

3. Lawyers may face criminal and civil liability for same conduct

II. Regulations of Lawyers

A. Bar Admission

1. MR 8.1: Bar Admission and Disciplinary Matters

a. Applicant to the bar shall not:

i. Knowingly make a false statement of material fact or

ii. Fail to disclose a fact necessary to correct a misapprehension known, or knowingly fail to respond to a lawful demand for info, except doesn’t require disclosure of protected info by 1.6

2. General Requirements for Bar Admission

a. Satisfactory completion of the Bar exam

b. Undergraduate degree

c. Study of law at a law school in the US

d. Absence of prior conduct by the applicant which in opinion of board indicates character and general qualifications incompatible with the standards expected to be observed by members of the bar

e. Cannot require:

i. US citizenship

ii. Residency in state

3. Character and Fitness

a. Applicant must tell Board any character problems – applicant has burden of proof to show he has character

b. Must disclose any:

i. Arrests – doesn’t include traffic offenses except for DUIs

ii. Denials of enrollment, probations, suspensions due to plagiarism, cheating

iii. Approaches by employer or teacher about truthfulness, absence, inability to work with others, etc.

iv. Addictions to narcotics, liquor, other things, provide explanation on current status

v. Info that could be considered a character issue

c. Must disclose even if expunged

d. Criminal background check

4. Bar tends not to flat-out deny admission unless it’s extremely serious, would likely make someone wait a year, or wait and do something additional

5. Bar understands youthful indiscretions

6. Will check bar application against law school application to see if they match

7. In re Converse (Neb. 1999)

a. Law school graduate denied for taking bar exam because of rude, confrontational behavior

b. Conduct arguably protected by First Amendment can be considered by Commission during investigation into applicant’s moral character and fitness to practice law

8. Standards for good moral character

a. Record of conduct justifies the trust of clients, adversaries, courts

b. Ability to conduct oneself with high degree of honesty, integrity, trustworthiness in all professional relationships and legal obligations

c. Ability to conduct oneself with respect in accordance with law and Code of Professional Responsibility

d. Ability to conduct oneself professionally and in a manner that engenders respect for the law and profession

B. Professional Discipline

1. MR 8.3: Reporting Professional Misconduct

a. Lawyer who knows another lawyer has committed a violation of RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer, shall inform appropriate professional authority

i. Anonymous reporting doesn’t satisfy – must be honest

ii. Don’t report to someone in firm, report to appropriate authorities

iii. Knows = actual knowledge of the fact in question. A persons knowledge can be inferred from the circumstances if the circumstances are such that there is no way you couldn’t have known

iv. Objective not subjective requirement

b. Lawyer who knows a judge committed violation of rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform appropriate authority

i. Usually requires more than one instance but if the single instance is significant it may require reporting

c. Rule doesn’t require disclosure of info protected by Rule 1.6 or info gained while participating in lawyer assistance program

d. Kentucky Bar Association Ethics Opinion E-430 (2010)

i. Have to report conduct that underlies the core values of the profession: honesty, trustworthiness, and fitness

ii. Obligation to the public outweighs any personal reservations for serious misconduct

iii. Don’t have to determine the other lawyer’s guilt, just report it so that the proper authorities can make that determination

2. MR 8.4: Misconduct

a. Misconduct to:

i. Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or through the acts of another

ii. Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer

iii. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation

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

v. State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate RPC

vi. Knowingly assist a judge or judicial officer in conduct hat is a violation of applicable rules

b. Do you have to tell the client about the misconduct? Brogan thinks that you are required to under you communication requirements à brings up the issue as to whether the client will keep the lawyer and can trust him

3. MR 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers

a. Lawyer responsible for another lawyer’s violation of the RPC if:

i. Lawyer orders, or with knowledge of specific conduct, ratifies the conduct involved, or

ii. Lawyer is a partner or has managerial authority in law firm in which other lawyer practices, or directly supervises another lawyer, and knows of conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action

1. Responsible for both lawyers and non-lawyers

2. Make sure that the firm has procedure and policies in place to adhere to the rules

4. MR 5.2: Respons

tiff’s ability to present his claim

v. The complexity of the legal issues

d. Marketability Analysis: (additional factor)

i. Whether there is a market of lawyers who practice in the legal area of the plaintiff’s claims?

ii. Does the plaintiff have adequate access to the market?

iii. Whether the market’s rejection of the party’s claims was the result of indigency?

1. Merits of claim

2. Costs of investigating

3. Handling necessary discover

C. Actual and Implied Client-Lawyer Relationships

1. MR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer

a. Lawyer may limit scope of representation if limitation is reasonable under the circumstances and client gives informed consent

2. MR 1.18: Duties to Prospective Client

a. Person who consults with lawyer about the possibility of forming client-lawyer relationship is prospective client

b. Even when no client-lawyer relationship ensues, lawyer who has info cannot use that info or reveal it

c. Lawyer in (b) shall not represent client with interests materially adverse to those of a prospective client in the same or substantially same manner if lawyer received info from prospective client that could be harmful to the person in that matter – no lawyer in the firm

d. When lawyer received disqualifying info in (c), representation ok if:

i. Both affected client and prospective client have given informed consent, confirmed in writing, or

ii. Lawyer who received info took reasonable measures to avoid exposure to more info than was reasonably necessary to determine whether to represent the prospective client, and

1. Disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and

3. RLGL § 14: Formation of a Client-Lawyer Relationship

a. Relationship arises when:

i. Person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either

1. The lawyer manifests to the person consent to do so, or

2. The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services, or

ii. A tribunal with power to do so appoints the lawyer to provide the services

4. RLGL § 15: A Lawyer’s Duties to a Prospective Client

a. When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, lawyer must

i. Not use or disclose confidential info learned in consultation

ii. Protect a person’s property in lawyer’s custody

iii. Use reasonable care to the extent the lawyer provides the person legal services

b. Lawyer subject to (1) may not represent a client whose interests are materially adverse to those of a former prospective client in the same or substantially related matter when the lawyer or another lawyer whose disqualification is imputed the lawyer, and has received from prospective client info on the matter, representation ok if:

i. Any personally prohibited lawyer takes reasonable steps to avoid exposure of confidential info, and

ii. Lawyer is screened

iii. Both the affected client and the prospective client give informed consent to the representation, and

iv. Written notice is promptly given to the prospective client