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Professional Responsibility
Wayne State University Law School
Chapin, Boyd E.

 
PROFESSIONAL RESPONSIBILITY (SUMMER 2015, Prof. Chapin)
 
WEEK 1 – Origin of Ethics Rules
 
Judges v. Lawyers
A court may invalidate a law that purports to regulate lawyers even when it doesn’t contradict the court’s own rules  – negative inherent power
·         When invoked, it prevents popular attempts (via legislation) to control the lawyer conduct
·         Example: State ex rel. Fiedler v. Wisconsin Senate which invalidated a law that imposed a continuing legal education requirement on attorneys who wished to be appointed as guardians ad litem b/c “once an attorney has been determined to have met the legislative and judicial threshold requirements and is admitted to practice law, he is subject to the judiciary’s inherent and exclusive authority to regulate the practice of law
·         Example: Irwin v. Surdyk’s Liquor held that statutorily imposed limitations on attorney’s fee awards violated separation of powers
 
Kutak Commission formed in ’77 by the ABA to prepare a new set of rules to address ambiguity and gaps in the Code of Professional Responsibility – the Model Rules were adopted in 02AUG83
 
A jurisdiction’s ethics rules apply to all lawyers admitted in it mostly w/o regard to their practice settings or the nature of their clients
 
Legal profession is self-regulatory
 
A learned profession b/c they have a particularly long history, well-established rules governing professional conduct and are believed to require moral character
 
MI adopted the ABA Model rules in 1988 – MI SCOTUS adopted the rules so lawyer’s are required to follow them
 
ABA has not right to promulgate the Model Rules – it is a voluntary act
 
Differences between MRPC and ABA rules:
·         Rule 1.0 MRPC comments define things more clearly, but not the ABA
·         Rule 1.1 differs from ABA rule in wording
·         The 1._ rules are somewhat different
·         After 1.8, the rules are mostly the same
·         Most of the ch 2 rules are the same
 
The Attorney-Client Relationship
Rule 1.0 (Scope and Applicability): b/c the lawyer violates the rule doesn’t mean someone can sue them for malpractice
·         The rules don’t give them an obligation to sue
·         “Virtually all difficult ethical problems arise from conflict btw a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living”
 
Does MI have compulsory mandatory continuing legal education? NO; however, Rule 1.1 requires the lawyer to remain competent in their field of law
 
Rule 15 (Rules Concerning State Bar of MI) – gives the lawyer’s oath
 
Rule 1.1 (Competence): When you’re inexperienced, get mentoring, tell your client, go to seminars and get info
 
Rule 1.3 (Diligence): client’s biggest complaint is lack of communication from lawyer
Godinez v. Moran (1993): a landmark decision in which SCOTUS ruled if that D was competent to stand trial, they were automatically competent to plead guilty, and thereby waive the panoply of trial rights, incl. the right to counsel
 
The Case of Ted Kaczynski: illustrates what constitutes competence – pretty much one expert against another
·         There is a very thin line btw competence and incompetence
 
The Case of Maj. Nidal Malik Hasan: Hasan decided that he wanted to die – was he competent to make this decision?  Do people have a right to suicide by court?  The court says they have a right to die.
 
If the lawyer ends up with evidence, can’t keep it – that’s obstruction of justice
·         You are stuck in this situation – best advice is to call the prosecutor and try to get info on the crime
·         Give the evidence to the prosecutor handling the case – if they ask questions, tell them it’s confidential (this extends farther than privilege)
 
Spaulding v. Zimmerman: During settlement negotiations, defense counsel didn’t share info about the aneurysm found in discovery
·         David Spaulding, a minor, was injured in a car accident
·         Zimmerman’s doc didn’t catch the aneurysm
·         Zimmerman’s lawyer did catch it and agreed to settle the case w/o releasing the aneurysm info
·         When P learned of the condition 2 yrs later, moved to vacate settlement arguing that he would not have agree to the same settlement had he known
·         P’s attorney should have obtained the medical report or disposed the physician that did the exam
·         This is malpractice by P’s lawyer and his doctor
·         If he was an adult, P would have been bound by it
·         By releasing this info, there was potential negative ramifications to the settlement
 
KNOW RULE 1.6 (CONFIDENTIALITY OF INFO) – will be on the final
 
Perez v. Kirk & Carrigan (p. 25): Perez had a valid claim for damages caused by the publicity from his indictment, resulting from the revelation of the statement to the DA in breach of that confidentiality, caused him to suffer emotional distress and mental anguish
·         Perez, working for Valley Coca-Cola Bottling Company, attempted to stop his truck at a stop sign but the brakes fell and he ran into a school bus killing 21 children
·         D, hired by Valley Coke, visited Perez in the hospital and took his statement informing him they would keep it confidential; they hired Connors as his defense attorneys
·         An agreement to form an attorney-client relationship may be implied from the conduct of the parties – doesn’t depend on payment of a fee, it may exist as a result of rendering services gratuitously
·         Kirk & Carrigan told Perez they were also his lawyers and that they were going to help him – this was sufficient to imply the creation of an attorney-client r’ship at the time Perez gave his statement to Kirk & Carrigan
o    The existence of this r’ship gave rise to a corresponding duty on the part of the attorneys not to violate this position of trust
·         Regardless of whether from an evidentiary standpoint the privilege attached, K&C breached their fiduciary duty to Perez either by wrongfully disclosing a privileged statement or by wrongfully representing thatn an unprivileged statement would b

sts states communications w/ both the CFO and a secretary can be privileged
 
FRE 501 states that fed courts are authorized to define the scope of federal evidentiary privileges using CL principles
·         Federal judges must apply state privileges in federal cases that are governed by state law
 
Restatement 73 privileges communications that satisfy the other criteria for privilege if the communication is “btw an agent of the organization” and a lawyer (or the lawyer’s agent) and the communication “concerns a legal matter of interest to the organization”
·         Uses the term “organizational client” and incl. w/I that category corporations, unincorporated associations, partnerships, trusts, estates, sole proprietorships, and “other for-profit or not-for-profit organizations”
 
UpJohn Co. v. United States (p. 34): the narrow “control group test” sanctioned by the Court of Appeals in this case cannot, consistent w/ the principles of the CL as interpreted in the light of reason and experience govern the development of the law in this area
·         Privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated w/ the attorney
·         A company could invoke the A/C privilege to protect communications made btw company lawyers and non-management employees
·         Rejected the control group test that had previously governed many organizational A/C privilege issues
·         Expanded the scope of the work-product doctrine
·         “Control group test” Privilege protects only communications with those persons who actually run the company or the “control group”
·         The “subject matter test” looks at the nature and purpose of the communication, not the identity of the source
·         Frequently it will be employees beyond the control group who will possess the info needed by the corp’s lawyers
·         With control group test, hard to for atty to predict which officers play a “substantial role” in deciding and directing a corp’s legal response and thus have atty-client privilege
·         Here, the communications were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of the corporate superiors in order to secure legal advice….the communications concerned matters within the scope of the employees’ corporate duties and the employees were sufficiently aware that they were being questioned in order that the corp could obtain legal advice