Natkin, Professional Responsibility, Spring 2016
Professional Responsibility
1/11/16: who are lawyers and what do they do?
What can lawyers do to improve their reputation?
Educate the public about how to handle common legal problems (81%)
Do a better job of communicating with their clients (80%)
Do a better job of policing and regulating themselves (78%)
In what practice setting do most attorneys work?
75% private practice
8% government
8% private industry
whom do most attorneys represent?
Entities – corporations, government, associations
% of attorneys who represent individuals has dropped to 29%
Takeaways for PR
The practice of law is evolving
The independence and authority of law and lawyers alike depend on the extent to which lawyers uphold the rule of law and access to justice
The model rules need to fit into many practice areas and situations, so keep those in mind as you study. Don’t be wedded to one model of practice
Preamble
Chapters 2.1 & 2.6: Sources of law
In most states, which of the following sources of law that may govern attorney conduct would be the binding (as opposed to secondary or persuasive) authority for a state court in determining discipline?
A state statute governing attorney conduct
A state supreme court rule
The text of the ABA Model Rules of Professional Conduct
An ABA formal ethics opinion
The legislature licenses professions
Except in most states, not attorneys
Preamble (par. 10–13) to the Model Rules
Attorneys are regulated by multiple sources of law
Common law liability (case law)
Legislation (with some separation of powers limits)
Administrative regulation (with federalism implications)
Judicial regulation
Disciplinary rules
Rules of procedure
Rules of evidence
Inherent authority (contempt power)
Milavetz, Gallop, & Milavetz
After Milavetz, what do you think it would take for an attorney to successfully argue that a particular consumer protection statute does NOT apply to attorneys?
Key trends in the regulation of lawyers
Increasing legalism – regulations are more precise, objective, and reach a broader range of conduct and attorney roles than in the past
Lawyers as “legal service providers” – regulation reaching work that lawyers do that overlaps with other professionals
Increasing regulation by legislators and administrative agencies rather than solely the court
Consider codes of civility
Why enact a civility code?
How are these codes different from rules of conduct?
Can we regulate civility through law?
Comment 20 in the “Scope” section of the ABA Model Rules
You can’t sue someone for violation of the rules.
Violation of the rules can’t be used as a basis for negligence per se in a malpractice action
Violation of the rules doesn’t mean a trial court has to automatically disqualify an attorney
The rules are supposed to be used for discipline only.
But notice that the rules go on to say
Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct
What does this mean?
Problem 2-A, p. 21
Most relevant rules would be 1.2 (assisting a client in a crime), 1.6 (confidentiality), 3.3 (candor to tribunal), 4.1 (candor to others)
Other relevant rules might be 1.16 (withdrawal), 1.4 (communication) and perhaps 3.4 (fairness in litigation)
However, in any question of discipline, Rule 8.4 is ALWAYS the starting point.
Basis for discipline: Rul
ecause a narrower prohibition is not violated doesn’t mean that a broader prohibition doesn’t still apply.
What is we apply the Missouri Rule? (p 22–23)
8.4(g) may better apply
we can debate the meaning of “in representing a client” but courts tend to read this broadly.
The narrower rule may be easier to apply. People v Gilbert where the court held that an attorney’s lack of civility to court staff, intemperate behavior during a hearing, or use of a repugnant epithet in the course of representing his client was not “conduct prejudicial to the administration of justice” but that it did violate 8.4(g).
Be able to identify and argue some of the tensions in defining misconduct
Broad v narrow construction of the rules
e.g., if an attorney violates a rule he or she believes is unconstitutional or otherwise invalid, will the attorney be subject to discipline?
Predictability v discretion
e.g. what is criminal conduct that “reflects adversely on . . . fitness as a lawyer”? what is “conduct prejudicial to the administration of justice”? should these standards be more clearly defined or is an open-textured rule better?
Overly broad description of sanctions
Knowing + serious injury or potential injury
Disbarment
Knowing + injury or potential injury
Suspension
Negligent + Injury or potential injury
Reprimand
Isolated Negligence + Little or No Injury
Admonition
1/12/16: Self-Regulation
