Professional Responsibility
Chapin
Summer 2016
Henry Shakespeare: “Let's kill all the lawyers” is not right
Learned profession: the term learned profession is trad used to characterize 3 occupations- medicine, law and dignity of theology
To Kill a Mockingbird— Scout's recollection of father Atticus
This course is about the MRPC, but don’t rely on it
All states test for professional responsibility
“Can virtue be taught?” (Law Review article) *
Standard conception: recommends zealous advocacy of clients' interests
Justice conception: lawyers be above all dedicated to pursuit of social conception
Character conception: live a good life in the law, characterized by the exercise of practical judgment
Missing virtue is disposition and capacity of lawyers to deliberate w/ non-lawyers
Including clients
Paper argues this concept
4 ways we approach (from article): *
Principle approach: base decision on principles (general normative standard of conduct)
Consequence approach: base decisions on outcomes of actions
Virtue/character approach: examines the person's intentions/motives and makes moral assessment or judgment of person's character
Moral sentiment approach: base decision on feelings
*”virtually all difficult ethical problems arise form conflict btwn 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” —-THIS IS ON FINAL**, from rule 1.0
***Lawyer's Oath, on separate sheet
*MI supreme court said that the MRPC are the RULE*****
they CONTROL lawyers
What about the ABA rules (American bar association)
Competence and Diligence
Rule 1.0 Scope and Applicability
(b) 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. *
Violation is admissible as evidence
Comments:
Rules do NOT give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply w/ an obligation or prohibition imposed by a rule
Preamble: a lawyer’s responsibilities
Lawyer = representative of clients, officer of the legal system and a public citizen having special responsibility for the quality of justice **
Roles: advisor, advocate, negotiator, intermediary, evaluator
Be competent, prompt, and diligent
Lawyer’s conduct should conform to the requirements of the law, both in prof service to clients and in lawyer’s business and personal affairs.Demonstrate respect for legal system.
As public citizen, should seek improvement of the law, admin of justice and quality of service.
Representative of clients, an officer of the legal system, and a public citizen
Conflicting responsibilities: lawyer’s own interest in remaining an upright person while earning a satisfactory living
Largely self-governing legal profession.Lawyer should aid in securing observance of rules by other lawyers.
Lawyers play a vital role in the preservation of society.
Scope
Rules presuppose a larger legal context shaping lawyer’s role.
Client-privilege is that of the client and not of the lawyer
Terminology
Belief or believes – actually supposed the fact in question to be true
Consult or consultation – communication of information reasonably sufficient
Firm or law firm
Fraud or fraudulent – having purpose to deceive; failure to apprise another of relevant info
Knowingly, known, or knows – actual knowledge of fact in Q
Partner
Reasonable or reasonably – reasonably prudent and competent lawyer
Reasonable belief or reasonably believes – lawyer believes, and circumstances are such that belief is reasonable
Reasonably should know – lawyer of reasonable prudence and competence
Substantial – material matter of clear and weighty importance
Notes:
Rules alone comprise SC’s authoritative statement of a lawyer’s ethical obligations
Duties to Client*
Confidentiality
Avoiding conflict of interest
Diligence and competence
Avoid commingling
Avoid self-dealing
Effective assistance
Avoid fee splitting
Withdrawal from representation
Duties to the Court *
Disclosure of perjury (the offense of willfully telling an untruth in a ct after oath)
Disclosure of adverse authority
Duties to the Profession *
Limitations on legal advertising
Report misconduct
Report unethical conduct
Duties to the Public*
Public interest
Make sure the system works and resolves disputes on a fair basis
That the system runs as well as we know how to run it
Rule 15—Rules Concerning the State Bar of Michigan**
Character and Fitness Committees
Duty as a public citizen
Legal profession is largely self-governing
Conceived in public interest and not self-interest
Keywords
Mandatory= Shall; Must
Discretionary= May; Could; Might; (no disciplinary action should be taken)
Exceptions= Unless; Except where
Many of the comments use the word “should”: comments don’t add obligations to the rules, but provide guidance in compliance with the rules.
Rules are only a framework
Not intended to govern or affect client-lawyer of work-product privilege
Rule 1.1 – Competence: A lawyer shall provide competent representation to their client
Lawyer shall not:
(a) Handle legal matter attorney knows or should know he is not competent to handle, w/o associating w/ a layer who is competent to handle it
(b) Handle matter w/o adequate preparation, or
(c) Neglect a legal matter entrusted to the lawyer
E.g. a lawyer takes a case that he has never handled, but tells client this and says he will work hard at it, violated rule? NO
E.g. lawyers handles matter above, but loses, violated? NO
Exception: Kansas SC disbarred Hawver, showed :inexplicable incompetence” as a defense attorney, the lawyer told the jury that the lawyer was a coke dealer and that he shot another dealer—failed to represent client well
Comment
Legal Knowledge and Skill
: relative complexity and specialized nature of matter, lawyer’s general experience, lawyer’s training and experience in the field, preparation and study lawyer is able to give the matter, whether feasible to refer matter to or associate or consult w/ a lawyer of established competence
In an emergency, may give advice or assistance in a matter in which lawyer does not have the skill ordinarily required.Limited to that reasonably necessary.
Thoroughness and Preparation
Required attention and preparation are determined in part by what is at stake
Maintaining Competence
Should engage in continuing study and education
FOR EXAM—when you are referring someone to an attorney, it is your duty to make sure that the lawyer you are referring someone to is competent.
Rule 1.3 – Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client. **
When you have someone who you represent, don’t delay in representing them
The lawyer's weekly mentions names of lawyers who have done bad things
E.g. MI lawyers weekly
E.g. client asks you to hold a bag and put in safe deposit box, and then you open it and find it’s a gun, what do you do?
Should you put it in safe deposit box? NO- you will get arrested
If you don’t put it in safe deposit box, then what do you do?–if you call someone at the prosecutor's office, you can't tell them what the client says because it's confidential. You can ask if there were any cases recently where a 9 mm handgun was used.—you can give it to the prosecutor's office and say “I can't tell you why I have it.”
E.g. practice in Detroit, there is a well-known case going to trial for murder, John Doe charged, client comes to your office, talking about diff matter, client mentions the case in Detroit, client says “I did it, not John Doe, an
s such as magnitude, proximity, and likelihood of contemplated wrong
A disclosure adverse to client’s interests should be no greater than lawyer reasonably believes necessary to the purpose
Withdrawal
If lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, lawyer MUST withdraw
After withdrawal, refrain from making disclosure, except as otherwise provided in
Dispute Concerning Lawyer’s Conduct
Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct, MAY respond to the extent the lawyer reasonably believes necessary to establish a defense
Disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence
Lawyer entitled to a fee is permitted to prove services rendered to collect fee
Disclosures Otherwise Required or Authorized
Requires lawyer to invoke privilege when it is applicableif called to testify as witnesss
Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a PRESUMPTION should exist against such a supersession
Former Client
Duty of confidentiality continues after the client-lawyer relationship has terminated
Notes:
*this is a necessary rule (neither good nor bad) –you want client to be honest with you.
*ONLY CLIENT CAN WAVE
Is it moral?
The rule is absolute and does not end after time
It is the conversations rather than the underlying facts that are privileged
look at Q handouts of example Qs****
HYPO: if client tells you that he threatens to kill his wife, do you have an obligation to violate privilege and tell someone what he said? YES- tell the police, this is an exception, under 1.6(c)(4)*
Question: the rule says “may” so do you have to tell someone? Are you liable for wife's death in the above example if the husband kills the wife and you didn’t tell??
Another example: you try to help someone who is drowning, but then you stop rescuing because he is your enemy—you didn’t put them in a worse position
But, if you put them in a worse position, then you are liable–this is analogous, you are putting wife in worse position
Gillers p. 1-51
Policies of ethics (p.4)
Judges make these rules rather than lawmakers (p.6), notwithstanding state regulation, and Cong.Can impose rules on lawyers who work for fed gov.
American Bar Association's Model rules of professional conduct (p.8)
Regulate themselves=skepticism
“model”= cannot impose rules on anyone, a ct must adopt the rule, only a model, states deviate
Adopted in 1983
Rules apply to all lawyers admitted in
The attorney client relationship (16)
Defining the relationship
Some rules apply b4 client is a client and after work is done
Duties to client are main concern
Is someone a client? (p.18)
Answered by caselaw, not the rules
Most formed by K; some by ct assignment
No formality of agreement or exchange of money is necessary to form relationship
Can be corporation or more than one person as client, class action
What to lawyers owe clients? (p.20)
