Fall 2016 Mogill Professional Responsibility Outline
Professional Independence of Lawyers
Rule 1.0—Scope and Applicability
Failure to comply with the rules is a basis for disciplinary action; the rules do not give rise to a cause of action for enforcement.
Rule 5.4—Prof. Independence of a Lawyer
No sharing legal fees with a non-lawyer, except estate in case of death of a lawyer, and except for law firm non-lawyer employees, and except for nonprofit client
Don’t let non-lawyers regulate your professional judgment
Can’t practice law in a firm that includes non-lawyers.
New Rule 8.4(g)—NOTE: Not in MI Rules
Cannot knowingly discriminate based on race, sex, religion, national origin, ethnicity, disability, age sexual orientation, gender identity, marital status or socioeconomic status.
Roles of Lawyers
Officer of the courts
Not unintentionally putting yourself in hot water.
Acting on one’s own.
Regulation of lawyers: only self-governed profession. Need to take standards seriously (ie. Watergate).
Prof misconduct to discriminate based on sexual orientation, even if it’s not illegal in the state.
Uncertain whether states will adopt the new rule (MI has not).
Korematsu v. US
After, with declassification of docs, came to light that Atty General knew that Japanese Americans posed little threat.
Can only speculate if decision could be different if Atty’s office hadn’t buckle under pressure.
Nixon Firing Article
Nixon ordered Atty Gen to fire Cox and he wouldn’t so he was let go. Atty gen, appointed by president, stood up and said this was not ethical.
DOJ Torture Memo
Bybee and Yoo wrote a memo outlining what the CIA could and couldn’t do for interrogation that gave them lots of room
The Office of Professional Responsibility (OPR) recommended referral to their local state bars for failure to be competent and provide candid legal advice
Margolis (Deputy Atty Gen) rejected the findings, even though their legal reasoning may have been flawed and used poor judgment, but not enough for referral
Firm took unpopular case and then changed their minds. Looked like outside pressure changed their minds, not change of circumstances. Also had a track record of supporting gay rights.
Note: could it be a conflict of interest to take case like this when firm has a track record of supporting gay rights? ABA 1.7(a)(2), MI 1.7 (b)
Attorneys and the First Amendment – Political Speech and the Right to a Fair Trial
R 3.5 – Impartiality and Decorum of the Tribunal
Don’t bribe judges, jurors, other officials
Don’t communicate ex parte with them
Can communicate with jurors afterwards except in some circumstances
Don’t be a jerk, even if a judge is
R 3.6 – Trial Publicity
Don’t disclose info that has a substantial likelihood of materially prejudicing an adjudicative proceeding when you should know it will be disseminated through public communication
There are some things you can say
This only applies if it’s a case you’re working on
R 6.5(a) – Prof. Conduct (MI rule only; no ABA counterpart)
Treat all people involved in legal process with courtesy and respect
Don’t disrespect because of race, gender, sexual orientation, etc.
Make sure your subordinates do the same
Do the same when serving as an adjudicative officer
R 8.2 – Disciplinary Auth.; Choice of Law
Subject to discipline in the place you’re admitted, regardless of where conduct occurs
Also subject to discipline in the place where you act
Choice of law rules – only one set of rules applies at a time
ABA: lawyer can make statement if reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or lawyer’s client. Limited to information necessary to mitigate the recent adverse publicity.
Dangers of publicity
Potential witnesses: Potential that they will add to testimony when they hear something in the media.
Berry v. Schmitt, 688 F3d 290 (6th Cir 2012)
Atty was sanctioned under R 8.2 by ethics commission for publicly criticizing its decision in a previous case. Holding: Court held that the commission’s ruling was unconstitutional because atty’s speech was based somewhat on fact and therefore protected.
Attorneys and the First Amendment – Commercial Speech/Advertising
R 7.1 – Communications Concerning a Lawyer’s Services
Can use public communication on your own behalf or on behalf of an associated lawyer
Cannot include information that is false, misleading, etc. or information that creates unjustified expectations about a lawyer’s chances for success or that a lawyer will win by violating MRPC
Don’t compare your services with other lawyers’ unless the comparison can be factually substantiated
This rule governs all communications about services, including advertising 7.2
R 7.2 – Advertising
You can advertise subject to these rules
Keep a copy of ads for two years
Don’t pay anyone for recommending your services, except for ads, lawyer referral services (6.3), and paying for a law practice
specific legal disclaimer rule but ABA does not.
If sending letter to consumer in another state who requires disclaimer, still have to put disclaimer b/c would make sense that state in which consumer is in would be rule to follow.
Note: What if lawyer switched firms and wants to tell her clients:
Generally speaking, can send solicitation letter to real clients but for other clients, just send general information letter.
Difference: saying I want to represent you.
A lawyer may not send a letter to physicians seeking to have the physicians refer to the lawyer patients with whom the lawyer has had no prior professional relationship.
References: MRPC 5.3, 7.3, 8.4(a).
An atty can post info about legal services on the Internet, solicit business via email to specific addresses as long as following ethics rules. Atty cannot solicit business during interactive electronic communication unless ethics rules governing in-person solicitation are followed.
References: MRPC 7.1, 7.2(a), 7.3; Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988).
A lawyer who is listed as a “Super Lawyer” in the Key Professional Media Inc publication “Michigan Super Lawyers” may refer to such a listing in advertising that otherwise complies with MRPC 7.1.
References: MRPC 7.1
Attys cannot list their services on Groupon sites (sharing of fees R 5.4)
Also constraints on lawyer being able to ethically rep client before receiving info (1.6)
Advance payment violates 1.15(g)
Also violates 1.16(d) under circumstances where fees are fully funded because they were not earned.
References: MRPC 1.1, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.15(g), 1.16(d), 5.4, 7.2
Ohio Op 2013-2 (2013)
Attys may text prospective clients under 7.2 as long as it conforms with rules 7.1 and 7.3/laws
Indiana Op 1-2012 (2012)
Unlikely that attys can use Groupon sites.
New York Op 897 (2011)
Atty may use Groupon site as long as it is clear that lawyer-client relationship isn’t formed and ad isn’t misleading or deceptive. Atty must give full refund if he/she cannot offer services.