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

Professional Responsibility Outline Fall 2009

I. Week 1: Attorneys and the First Amendment—Political Speech and the Right to a Fair Trial
A. Applicable Rules
1. Rule 3.5
a) MRPC: Impartiality and Decorum of the Tribunal
(1) A lawyer shall not:
(a) Seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;
(b) Communicate ex parte with such a person concerning a pending matter, except as permitted by law; or
(c) Engage in undignified or discourteous conduct toward the tribunal
b) ABA: SAME WITH ADDITIONS
(1) Addition to Section (b): communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order
(2) Addition to Section (c): communicate with a juror or prospective juror after discharge of jury if;
(a) The communication is prohibited by law or court order;
(b) The juror has made known to the lawyer a desire not to communicate; or
(c) The communication involves misrepresentation, coercion, duress or harassment;
(3) Addition of Section (d): engage in conduct intended to disrupt a tribunal
2. Rule 3.6
a) MRPC: Trial Publicity
(1) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have substantial likelihood of materially prejudicing an adjudicative proceeding
b) ABA: Trial Publicity
(1) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
(2) Notwithstanding paragraph (1), a lawyer may state:
(a) The claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
(b) Information contained in a public record;
(c) That an investigation of a matter is in progress;
(d) The scheduling or result of any step in litigation;
(e) A request for assistance in obtaining evidence and information necessary thereto;
(f) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(g) In a criminal case, in addition to subsections (a) through (f)
(i) The identity, residence, occupation and family status of the accused;
(ii) If the accused has not been apprehended, information necessary to aid in the apprehension of that person;
(iii)The fact, time and place of arrest; and
(iv)The identity of investigating and arresting officers or agencies and the length of the investigation
(3) Notwithstanding paragraph (1), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity
(4) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (1) shall make a statement prohibited by paragraph (1)
3. Rule 6.5(a)—Michigan Only, No Comparable ABA Rule
a) MRPC: Professional Conduct
(1) 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
4. Rule 8.2
a) MRPC: Judicial and Legal Officials
(1) 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.
(2) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct
b) ABA: SAME AS MRPC
B. Grievance Administrator v. Fieger MI Supreme Court
1. Facts: Grievance Administrator sought review of decision by Attorney Discipline Board concluding that MRPC 3.5(c) and 6.5(a) were unconstitutional.
a) ADB determined the rules didn’t apply to the attorney’s remarks because they were made outside of the courtroom in a case regarded as completed; and if they did apply they were in violation of the First Amendment
b) Action surrounded attorney’s derogatory remarks made on his radio show about the three judge panel that made an adverse ruling in the attorney’s malpractice case
2. Issues: are his statements in violation of MRPC 3.5(c) and 6.5(a)?
a) Does the attorney discipline board have authority to decide issues of constitutionality of the two rules?
3. Holding: Court reversed holding that the rules were designed to prohibit only undignified, discourteous, and disrespectful conduct or remarks and not to silence or censor
a) Case was still pending when remarks were made because it was during the period in which a motion for rehearing could be filed and such a motion was filed.
b) Even though made outside the courtroom, the statements attacked the judges in their capacity as judges and MRPC 6.5(a) applied as the judges were persons involved in an ongoing legal process
c) Rules weren’t vague as there was no question that even the most casual reading of the rules would put a person on notice of the kind of language used by the attorney would violate MRPC 3.5(c) and 6.5 (a)
d) The speech wasn’t political under the First Amendment as there was no political campaign underway
C. Fieger v. Michigan Supreme Court
1. Facts: After Fieger lost his Michigan supreme court case above, he brought a federal case challenging the rules and claiming they are unconstitutional
2. Issues: Fieger raised constitutional challenges to MRPC 3.5(c) and 6.5(a), the courtesy and civility provisions
3. Holding: The rules are unconstitutional on their face because they are both overly broad and vague
a) They violate the First Amendment right to free speech and the Fourteenth Amendment right to due process of law
D. Notes: Because of this case there is no clear standard in Michigan as to what lawyers can and cannot say
a) Courts want to keep the institution of the court maintained and allowing the lawyers to speak of judges is harmful to the respect for the court
b) Fundamental question about the relationship of lawyers to the legal system
(1) Judges who have stricter view of lawyers as officers to the court has a lot of parallels to employees at a workplace
E. Gentile v. State Bar of Nevada US Supreme Court
1. Facts: Gentile, attorney, held a press conference six months before client’s criminal trial; he asserted his client’s innocence and that police corruption defense would be used
a) After client’s acquittal—in a trial at which neither side sought a change of venue or venire—state bar brought disciplinary charges against him alleging a violation of a rule prohibiting pretrial extrajudicial statements by attorneys
b) Gentile wasn’t disciplines, and appealed arguing his First Amendment rights were violated
2. Issue: Gentile appealed judgment of Nevada Supreme Court finding him in violation of a professional rule for pretrial press conference comments, arguing disciplinary action violated his First Amendment rights
3. Holding: Supreme Court reversed disciplinary action—although states are permitted to restrict attorney speech which has a substantial likelihood of prejudicing pending legal proceedings, the rule was void for vagueness inasmuch as it tended to mislead attorneys into believing that a general discussion of the criminal defense, without elaboration, will not subject them to discipline
F. In re Sawyer US Supreme Court
1. Facts: A disciplinary charge was made against the attorney by the bar association concerning a speech she made six weeks after a trial began in which she served as defense counsel to a number of defendants indicted for conspiracy
a) Another charge related to the interviews that she had with one of the jurors after the trial had concluded
2. Issue: Sawyer sought review of her suspension from the practice of law for a year by bar association which was affirmed on appeal by the US Court of Appeals for the 9th Circuit
3. Holding: Court held that the bar association’s assertion that the attorney’s speech reflected adversely upon the trial judge’s impartiality and conduct and impunged his judicial integrity in presiding at the trial was without support
a) The attorney was voicing strong criticism of Smith Act cases and the government’s manner of proving them
b) Her references to the happenings at the trial were illustrative of this, and a reflection in any way upon the trial judge personally or his conduct of the trial
c) Lawyers were free to criticize the state of the law
d) The statements didn’t furnish any basis for a finding of professional misconduct
e) As to the juror interviews after the trial, there was no reason to single out the attorney’s interviews for censure against a pattern of common practice of such interviews
G. Grievance Administrator v. Gorcyca
1. Facts: Gorcyca was an Oakland county prosecutor and charged a man with two counts of criminal sexual conduct

ded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person with prior professional or family relationship
(4) Addition of Section (4): notwithstanding the prohibitions in paragraph (1), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan
4. Rule 7.4
a) MRPC: Communication of Fields of Practice
(1) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
b) ABA: SAME WITH ADDITIONS
(1) Addition of Section (2): A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation
(2) Addition of Section (3): A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation
(3) Addition of Section (4): A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(a) The lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
(b) The name of the certifying organization is clearly identified in the communication
5. Rule 7.5
a) MRPC: Firm Names and Letterheads
(1) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and it is not otherwise in violation of Rule 7.1.
(2) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(3) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(4) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
b) ABA: SAME AS MRPC
B. Bates v. State Bar of Arizona US Supreme Court
1. Facts: Bates were licensed to practice law in Arizona
a) In direct violation of a disciplinary rule prohibiting attorney advertising that had been promulgated by the state, Bates placed an advertisement in an Arizona newspaper, which stated that they were offering legal services at reasonable fees and which listed their fees for certain services
b) They sought review of the rule after it was recommended that they be temporarily suspended from practicing law
c) The state supreme court rejected their arguments that the rule violated the Sherman Act and that the rule infringed upon their First Amendment rights
2. Issue: Bates, attorneys licensed to practice law in the state of Arizona, sought review of the judgment of the supreme court of Arizona, which found that a disciplinary rule promulgated by the state which prohibited all forms of attorney advertising, did not violate the Sherman Act or infringe upon the First Amendment rights of attorneys