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Professional Responsibility
Wayne State University Law School
Mogill, Kenneth M.

 FREE SPEECH FOR LAWYERS
 
I. POLITICAL SPEECH
   A. FIRST AMENDMENT RIGHTS
                1. It protects rt of the speaker and rt of the public to hear the speech.
                                – It doesn’t come into play until someone is disrespected.
                2. See applicable rules: MI 3.5, 3.6, 3.8, 6.5(a) and 8.2; ABA Model Rules 3.5(d), 3.6, 3.8 and 8.2
                3. The Ct rely on the integrity of the atty and self-censorship. Lawyers = Officers of the Court!
                4. Porter case: Ct held it was free speech for someone to say, “I think the judge is a racist”.
                5. There’s a very strong protection of OPINION (non-factual) speech under 1st Amend.
                6. 2 Exceptions to Lawyers First Amendment Rights:
                                (1) Lawyers comment about their own pending cases in a way that has a likelihood of                                         prejudicing those cases before they are tried. Atty is limited in speech.
 
p. 769 Gentileè Hours after client was indicted, Gentile (attorney) held a press conference. State Bar        filed complaint for violating a rule governing pretrial publicity (like ABA 3.6). Ct held that he                 didn’t violate the rule b/c things atty said could be found in earlier reports and not revealing  “special” info. No proof the statement created ‘material prejudice’ and atty didn’t know or
                reasonably suspect it would. Also, the rule is violate 1st Amend. b/c too broad.
Rule è An atty is permitted to make statement that the atty reasonably believes is necessary to protect
                the client from undue prejudice. It’s limited to rebut any “recent adverse publicity. It can’t be
                made to “materially prejudice an adjudicative proceeding”. Consider timing and place.
CT TESTè Substantial likelihood of material prejudice to the adjudicative process (ie: impacting
                prospective jurors). Assessment of atty’s speech was content neutral.
 
                                (2) When lawyers comment about the judge, judges rulings, etc. in a derogatory way.
 
Fieger Caseè On radio show he compares judges to Hitler and says “jackasses” and “go f yourself”  
The Ct says that there’s a difference b/n robust comment and comment that undermines the integrity of the legal. State has a great ethical interest in preventing speech like Figer
Ct held that Fieger violated 3.5 and 6.5 b/c his comments WERE directed towards (about) the tribunal and violated atty discipline rules prohibiting undignified or discourteous conduct and respect to all persons involved in the legal process. CT Standard = “I’ll know it when I see it”
 ADB also don’t have authority to declare a ct rule unconstitutional.
Rules aren’t constitutionally vague b/c don’t have to specify ALL provisions.
If the Ct would’ve used Gentile standard, then Fieger would have got off. Here, Ct distinguish b/n
        comment that does or doesn’t concern vulgarity. Also speech wasn’t deemed political.
 
p. 790 Holtzmanè Looking at rule 8.2(a), Holtzman criticized a judge in a letter to committee about         judge’s actions. Π asserted that the claims were false accusations and there was no proof of atty’s
        claims. The Ct held that no malice is required, but Holtzman should have known that her actions could affect her fitness to practice law b/c they were unwarranted. Ct reasoned that it was      protecting the sanctity of the legal system.
 
p. 794 NY TimesèAnnounced an “actual malice” test for defamation (libel – written & slander – spoken)
Ct held that a public official cannot recover damages for defamation unless that official can prove that the statements were made w/ actual malice (knowing they were false, OR w/ reckless disregard w/ whether they are true or false.  
 
Key Competing Principles of what are lawyering codes of conduct
§         Right of public to hear
§         Right of Lawyer to Speak
§         Other side: General Interest in promoting respect for judicial system
o        Standards: 1.) Substantial likelihood of material prejudice; 2.) Balancing test of some sort; 3.) NY times standard
 
II. COMMERCIAL SPEECH and Advertising
    A. The General Stuff
                1. MI & ABA 7.1 (MI rule more detailed on prohibited acts), 7.2, 7.3, 7.4 and 7.5.
                2. If speech isn’t false/deceptive, ct will allows state restriction if substantial gov’t interest hurt.
                3. Look at Bates 6 factor test on Ads {p. 802}
                4. In assessing potential for overreaching/undue influence—focus on the MODE/TIME of comm.
p. 801 Batesè Atty did a print ad and the State Ct forbid it {p. 802}. The Ct held that truthful advertising                 of “routine” legal services by attys is commercial speech entitled to 1st/14th Amendment  protection. Remember, this was about a print ad.
 
p. 805 Ohralikè An atty had learned that a girl was in the hospital after a car accident and he tried to       have her sign a K while she was still in the hospital (she later did) and then he approached another          girl who really didn’t understand what was going on. The Ct held that he violated rule and took           advantage of the girl’s trust in atty. Ct also reasoned that there were no witnesses to see what
                really took place (ie: don’t know if there was coercion). Ct limits in person solicitation on when
                circum. are conducive to overreaching and misconduct. Face to face has the potential of UI; fraud. 
Rule è State has authorization to discipline an atty for soliciting clients in person, for pecuniary gain,          under circumstances likely to pose dangers the State has right to prevent {ie: consumer protection;     regulations commercial transactions; maintaining standards among licensed attys; invasion privacy
        è States allowed to adopt prophylactic rule = state can make categorical ban.
 
p. 809 Edenfield è There’s a different standard for accountants b/c they usually deal w/business men.      While atty’s are more apt to be aggressive and deal w/regular folks in DIRE need.
 
p. 811 Zaudererè There was an ad in the newspaper asking “Did you sue an IUD” and he was willing to give free info. Ct distinguish this from Ohralik b/c not face-to-face contact and a print ad is less               likely to involve any pressure that would require an immediate yes or no. Ct held that the ad didn’t
                violate any rule b/c it was acceptable and truthful and the ad didn’t guarantee success etc. .It still doesn’t just b/c the ad had a tendency to encourage people to file suits. Also, disclaimers may be       a way to prevent consumer confusion or deception. It’s about protecting consumers.
Rule è Even though the Ct was dealing w/an ad for specific legal services, it was still protected speech b/c of the truth found in the ad.  An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and legal advice or accurate and nondeceptive illustrations.
 
p. 818 Shapero (Targeted Mail) è Atty was send solicitation by mail to persons known to need legal           assistance {ie: those who had a foreclosure suit filed against them}. Looking at rule 7.3. The Ct               held that the Ad could be sent out but must say “Advertisement”. It reasoned that the State can’t
                prohibit a form of sppech (ie: mail) just b/c its more effective by mailing to those who would be
                interested. Note: The more personal the solicitation = the more its probably wrong!!!
Rule è Targeted mail is allowed, but if its geared toward particular matter must say, “Ad”.
 
p. 825 FL Rule (Went for it)è Couldn’t solicit an accident victim for at least 30 days. Ct will look at timing. The court says that: (1) the rule is just deferring and (2) even though atty can’t send targeted letters for 30 days the attys do still have other means of advertising w/in that time.
 
** In looking at a problem, balance how much respect should be given to 1st Amend. rights v. state
                interest in preventing dangers. When looking at State action, consider the causal relationship b/n
                state’s means and its goals—to see if its working.
 
p. 831 PrimusèΔ, an attorney affiliated w/(ACLU), sent a letter to a woman who had been sterilized as a                condition of continued receipt of medical assistance. Δ informed the woman of the ACLU’s offer           of free legal representation, in the event that she ever wished to institute suit against the doctor       who performed the sterilization procedure. The Ct that her letter didn’t violate rule b/c it was a                 means of political expression and assoc. for civil rights and comm.. w/the public. Also unlike           Ohralik there was no claim of UI or coercion. The court found that petitioner’s actions were  undertaken to express personal political beliefs and to advance the civil liberties objectives of the  ACLU, rather than to derive financial gain. The state’s action in punishing petitioner for soliciting  a prospective litigant by mail, on behalf of the ACLU, did not withstand the exacting scrutiny applicable to limitations on core First Amendment rights.
Rule è When political expression or association is involved, a state has to regulate w/greater precision!!
 
 * Note: States have much less power to regulate client solicitation when a lawyer’s motive is political    rather than financial. After Primus, Rule 7.3 continues to look at the muse of motive to     determine the permissible scope of client solicitation.
 
 Defining Atty-Client Relationship
 
I. Ethics Issues

t him in a worker’s comp claim. He didn’t learn of possible claims against 3rd parties until past statute of limitations            past. Sued F&K for malpractice, claiming they were under a duty to advise him of his rights w/             respect to 3rd party suits. Ct held that Attorney may be obligated to alert client of claims outside  the direct scope of representation. One of attorney’s basic functions is to advise on foreseeable             negative consequences – even if outside scope of representation attorney has duty to disclose the           risk. Reversed. Shows a lack of communication…
Court: Attorney had duty to advise of 3rd-party actions. 
·         Lawyers can be held liable for failure to advise, even though outside the scope of the contract with the client. Failure to advise can be just as serious as straight-out bad advice.
 
Whose in Charge? General principles for determining
·              Objectives of legal matter determined by client: Clear decisions for client: Taking settlement/mediation offer; or plea agreement in criminal matter; Whether to take stand in criminal trial; Decision to have bench/jury trial; Decision on lesser included defenses or appeal
·              Tactical decisions to achieve those decisions is decided by lawyer: Clear decisions for lawyer: What issues to raise on appeal: How to questions witnesses, even if want to question witnesses at all; whether to do opening statement.
 
p. 57-8 Taylorè Taylor’s lawyer did not comply with a discovery request for a witness list. Consequently, the judge would not allow the lawyer to call a witness whose testimony could have exonerated the defendant (self-defense). Taylor was convicted. Taylor appealed to Supreme Court arguing he should not be held responsible for his lawyer’s misconduct. The Court held that the client MUST ACCEPT THE CONSEQUENCES of a lawyer’s decision to forgo cross-examination, not to put certain witnesses on the stand, or to not disclose the identity of certain witnesses in advance of trial. 
Taylor’s alternative is ineffective assistance of counsel
 
p. 59 Cottoè Young child filed claim against USDA for conveyor belt injury to hand. 1st Circuit upheld dismissal for failure to prosecute. Court recognized P was victim of many blunder on the lawyer’s part, but said the lawyer is the client’s agent. They may have a claim against the lawyer, however. Also, lawyer may be disciplined. Upheld dismissal of complaint
·              Court allows π to suffer consequences of the lawyer’s decision (but lawyer can be sued by π; legal malpractice claim)
 
***Civil case – if lawyer makes a mistake/misconduct or makes a tactical error, the client suffers. CT        will not set judgment aside. Only remedy is to sue lawyer for malpractice.
***Criminal case – if lawyer’s mistake/misconduct results in conviction, mistake/misconduct is  considered ineffective assistance of counsel and will result in a new trial.
 
 D. Competence
                1. Rule 1.1 è There is a duty of competence {be prepared; skilled; legal knowledge; thorough}
                2. Attys who hold themselves out as ‘specialist’ will be held to a higher standard.
                3.  If you violate this rule, any one of three happen: 1. Sued for malpractice 2. Disciplined under                                    disciplinary system 3. If criminal case, found to have rendered ineffective assistance.
                4. R 1.1 protects the public from attny acting incompetently.
                5. In many instances, the required proficiency is that of a general practitioner
                6. In an emergency, a lawyer may give advice in a matter in which the lawyer does not have the                      skill required, but the assistance should be limited to that which is reasonably necessary
                7. Atty should engage in continuing study to maintain the requisite knowledge and skill.