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Professional Responsibility
Wayne State University Law School
Armitage, Mark

PROFESSIONAL RESPONSIBILITY OUTLINE

I. Character and Fitness

A. Lawyer’s Responsibilities

1. Lawyer roles:

a. Advisor

b. Advocate

c. Negotiator

d. Evaluator

2. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

3. Lawyer’s Oath

a. Support the US and MI Constitution

b. Maintain respect due courts of justice and judicial officers

c. Not sue or defend, or counsel, except for causes “honestly debatable under the law of the land”

d. Only use truthful and honorable means, and “will never seek to mislead the judge or jury by any artifice or false statement of fact or law”

e. Preserve secrets and confidence of client

f. Accept no compensation in connection with client’s business except with client’s knowledge and approval

g. Abstain from offensive personality

h. Conduct myself personally and professionally

B. In re Mustafa

1. “In order to gain admission to the Bar, an applicant must demonstrate ‘by clear and convincing evidence, that the applicant possesse[s] good moral character and general fitness to practice law ….’”

2. “There is no doubt that an attorney who mismanages the funds of a client will ordinarily face disbarment.”

3. “Similarly, an attorney convicted of a crime involving moral turpitude faces automatic disbarment.”

4. Mustafa did not misstate; he told the truth.

a. However, he was dishonest and untrustworthy a relatively short period of time before he applied to take the bar exam

C. Categories of Conduct Scrutinized:

1. Residence History

2. Employment History

3. Criminal History

4. Civil Litigation History

5. Financial Responsibility

6. Psychological History/Substance Abuse

7. Disciplinary History

8. Character References

D. Rule 8.1 – Bar Admission and Disciplinary Matters

1. An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

a. Knowingly make a false statement of material fact; or

b. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except . . . [Rule 1.6]

E. Rule 2.1: Advisor

1. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

F. MRPC 5.4: Professional Independence of a Lawyer

1. Subject to certain exceptions, no sharing of fees with a nonlawyer

2. Law partnerships for lawyers only

3. “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”

4. Law PC’s for lawyers only

F. MRPC 5.5: UPL & MJP

1. A lawyer shall not:

a. Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction (L cannot practice in a jurisdiction unless authorized); or

b. Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law (L1 cannot assist L2 engage in UPL)

c. No systematic and continuous presence or holding self out as admitted in a state when you are not

d. Temporary “safe harbors”

e. Longer term “safe harbors” (e.g., corporate in-house counsel, or authorized by law)

2. MRPC 5.5(c) Temporary Safe Harbors

a. With local counsel

b. Pro hac vice admission granted, granted to one you assist, or reasonably expected

c. ADR and “services arise out of or are reasonably related to…”

d. Not (c)(2) or (c)(3) and arise out of or are related to a lawyer’s practice where admitted

II. Lawyer Liability and the Law Governing Lawyers

A. Model RPC 7.1: Communications Concerning a Lawyer’s Services

1. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

a. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

2. Communications concerning a lawyer’s services must be truthful and not misleading

B. Mich RPC 7.1

1. A lawyer may, on the lawyer’s own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer’s law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

a. contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

b. be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

c. compare the lawyers’ services with other lawyers’ services, unless the comparison can be factually substantiated.

C. Model RPC 7.2: Advertising

1. Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

2. A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

a. pay the reasonable costs of advertisements or communications permitted by this Rule;

b. pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

c. pay for a law practice in accordance with Rule 1.17; and

d. refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

i. the reciprocal referral agreement is not exclusive, and

ii. the client is informed of the existence and nature of the agreement.

3. Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

4. Summary

a. A lawyer may advertise in accordance with MRPC 7.1 and 7.3

b. Subject to certain exceptions, a lawyer shall not give anything of value to a person for recommending the lawyer’s services

c. Communications under this rule must include the name and office address of at least one lawyer responsible for t

nce Adm’r v. Deutch

a. We find that the judgment of conviction filings against Deutch and Howell for their respective drunk driving convictions constituted “misconduct” under MCR 9.104(5), regardless of whether these convictions, on their face, reflect adversely on the attorneys’ honesty, trustworthiness, or fitness as lawyers under MRPC 8.4(b).

5. Mich RPC 6.5: Professional Conduct

a. A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.

6. MRPC 8.3

a. L who knows another L violated a rule that raises “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” shall inform appropriate professional authority

b. [Similar provision for judicial misconduct]

c. This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program

i. Not for leverage

ii. No duty to report self, but L must report even at risk of implicating self

iii. When do you “know”?

iv. What is “substantial”?

v. Client confidences and client consent

7. Rule 8.2: Judicial and Legal Officials

a. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office.

8. Westfall

a. “Without any corroborative evidence, respondent accused Judge Karohl of deliberate dishonesty. He accused the judge of purposefully ignoring the law. . . .”

b. Defamation (a personal wrong with a personal redress) vs. professional discipline (redress of a public wrong)

c. Dissent: “’Recklessness’ as applied to speech is not the equivalent of ‘popping off.’ . . . There is no showing here of ‘false statements made with the high degree of awareness of their probably falsity’ required by Garrison.”

III. Basic Principle of Confidentiality and Exceptions to the Duty

A. MRPC 1.6: Confidentiality of Information

1. “Confidence” = A/C privileged info

2. “Secret” = info

a. Client requests be held inviolate,

b. Disclosure of which would be embarrassing, or

c. Disclosure of which would likely be detrimental to client

3. A lawyer shall not knowingly reveal a confidence or secret of a client

4. You shall not reveal information related to the representation of a client unless: