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

Professional Responsibility
Winter Term 2011
Room 1535
Prof. Kenneth M. Mogill
 
Week 1: January 12
 
Model Rules – Preamble and Scope
Rule 5.4
Korematsu v United States, 584 F Supp 1406 (ND Cal 1984)
“Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit”, Washington Post, October 21, 1973 [posted on class TWEN site] “DOJ ‘Torture Memo’ Attorneys Won’t Face Discipline Referral”, 26 ABA/BNA Lawyers Manual on Prof Conduct 139-141 (2010) [posted] Rules 3.5, 3.6, 6.5(a) and 8.2
Gentile v State Bar of Nevada, 501 US 1030 (1991)
Grievance Administrator v Fieger, 476 Mich 231 (2006)
Fieger v Michigan Supreme Court, ED Mich unpublished, 2007 wl 2571975
 
 
Preamble and Scope
Lawyers provide various functions:
Advisor
Advocate
Negotiator
Evaluator
Third-party neutral
When an opposing party is well represented, can be a zealous advocate for client and assume justice is being done
Legal profession is largely self-governing (different than other areas)
Some rules are shall/shall not and others are “may” (implies discretion)
Comments to the Rules don’t add obligations, but provide guidance
Principles of substantive law external to the Rules determine if a client-lawyer relationship exists
Violation of a Rule should not itself give rise to a cause of action, nor create a presumption that a legal duty has been breached
 
Rule: 5.4 Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate, or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) 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.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof, or one who occupies a position of similar responsibility in any form of association other than a coporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
 
Korematsu v. US
ND of CA 1984
 
Facts:
K-mu born in US, of JP ancestry, convicted of being in a place he was excluded from by an Exclusion Order
Petitioned for a writ of coram nobisi for gov’t misconduct – a legal writ issued by a court to correct a previous error “of the most fundamental character” to “achieve justice” where “no other remedy” is available
K-mu was loyal to the US and had no allegiance to JP, was even registered in draft
A brief by the gov’t relied partially on a Final Report of General DeWitt, the footnote changed several times regarding how much it was relied on – initially it said that it was somewhat contradictory with the info the Dept. of Justice had, but the final version didn’t
 
Analysis:
Final version made no mention of the contradictory reports, the record is replete with the protestations of Dept. officials that the gov’t had the obligation to advise the courts of
The omissions are critical, the gov’t argued the actions were within war-making powers of the Exec and Leg branches that were beyond judicial scrutiny because they were reasonably related to the security and defense of the nation
No question the Branches were entitled to reasonably rely on certain facts, question is if the court had before it all the facts known by the gov’t
Coram nobis lies for claim of prosecutorial impropriety, there is support in the record that the gov’t deliberately omitted relevant info and provided misleading info that was critical to the court’s determination – court was dependent on gov’t to provide a full/accurate act
writ is granted
 
Discussion:
question is what was the obligation of the officers working in the Justice Dept. regarding the conflicting facts?
 
Nixon Firing Article
Nixon fired Special Prosecutor Cox and accepted resignation of Atty General Richardson and Dept. Atty General Ruckelshaus
Nixon also abolished the office of the Special Prosecutor and had FBI agents seal off the offices of Richardson and Ruckelshaus
This happened after Cox refused to comply with an agreement worked out by Nixon and the Watergate committee that summarized material from the tapes would be turned over to Cox and no further efforts would be made to obtain tapes and other docs
Cox said he couldn’t comply and vowed to pursue the tapes
Nixon said he was trying to avoid Constitutional confrontation by the action announced by giving the courts info that he considered privileged
Richardson also said he could not comply and resigned
 
Discussion:
office of Special Prosecutor was within the Justice Dept. – who is the client? probably the US Gov’t
if they hadn’t been willing to stand up to the Prez then the odds of Watergate not being completely exposed would be much less
 
DOJ Torture Memo
Bybee and Yoo wrote a memo outlining what the CIA could and couldn’t d

cases’ fairness because they have special access to info and statements are likely to be received as authoritative
Limitations aimed at comments likely to influence trial outcome or prejudice jury
State has substantial interest in preventing lawyers from imposing costs on system and affecting right to a fair trial by impartial jurors
177 violates 1st amendment because he spoke at a time and in a manner that didn’t create threat of real prejudice to fair trial or state’s interest
Public awareness and criticism are important when there are concerns of police corruption and judgment of a prosecutor
Rule itself doesn’t violate 1st, but SC of NV’s interpretation does
Court is compelled to examine the statements itself, they find no basis for the conclusion
Prosecution had been allowed to comment publicly about the officers’ involvement, Gentile sought only to counter the publicity already given against his client
Also tried to defend his client’s reputation
Timing of the statements is crucial – 6 months ahead was not likely to prejudice
Lots of the info in the statement was already publicly available
Record lacks any indication that the proceeding or the jury was affected
 
Discussion:
 
 
Grievance Administrator v. Fieger
SC of MI, 2006 – Taylor
 
Facts:
Fieger won a case, Ct of App reversed saying Fieger failed to provide sufficient evidence and he was guilty of misconduct by making baseless accusations
3 days later Fieger made disparaging remarks about the App judges on his radio show
Grievance Commission filed complaint based on 3.5(c), 6.5(a), and 8.4(a)/(c)
Fieger argues applicability and Con of 3.5 and 6.5 – says not applicable because case was completed and were out of courtroom
3.5(c) – prohibits undignified or discourteous conduct toward tribunal
6.5(a) – requires lawyers to treat with courtesy and respect  all persons in legal process
 
Analysis:
Rules are designed to maintain public respect for law, not sensitivity of judges
3.5(c) and 6.5(a) don’t prevent criticism, not meant to silence or censor
Case wasn’t completed, still pending until expiration of time to file an appeal – 21 days in this case, well after the 3 days that passed, plus Fieger did appeal
Fieger’s comments were directed at the judges, which is “toward” the tribunal under 3.5
Under 6.5 the judges were persons involved in the legal process
Therefore, Fieger violated both 3.5(c) and 6.5(a)