Professional Responsibility Outline

If a lawyer comes up to you and says, “I have the ABA Model Rules for Professional Responsibility and this is all that I need to follow” … what do you say to this?
–this is a mistaken belief – the ABA Model Rules is not complete, black letter law … other regulatory agencies, state ethics codes, decisions from the state’s highest court, etc. also dictate lawyer ethics
**courts construe the Model Rules and may differ from the black letter law and comments within the Restatement for the Law Governing Lawyers
 
BAR Admission Process
            –graduate from high school
            –graduate from law school
            –submit application to the bar
            –obtain passing scores
            –ensure the applicant is of good moral character (character and fitness inquiry)
 
**when lawyers file for bankruptcy, it foreshadows potential inability to mismanage funds and this may be a conflict of interest in terms of later having to manage client funds while practicing
            –diminishes ability to be admitted to the bar
 
**within the character and fitness inquiry, it is often not about what they did but rather the act of being caught while attempting to be evasive, omitting certain truths, or attempting to cover up what was done
 
Rose Gower – p. 55
–Rose, at the age of 17, spent 2 weeks in a hospital for treatment of a major depressive disorder
–she had no blemishes on her educational achievement or employment
–she was admitted to the Maine bar and then moved to Connecticut after being offered a job with the CT Superior Court
–she was asked to elaborate on her commitment to an institution for mental, emotional, or nervous disorder … she then submitted her response and 5 mos. later, the committee decided to request medical records
–Rose submitted another response about her out-patient treatment and still yet, the committee wanted names and addresses of her current therapist and past therapists
–Ms. Gower’s admission was delayed for more than a year after her initial filing … later, Ms. Gower filed an ADA (American with Disabilities Act) complaint with the Dept. of Justice to make her experience known to the public
**there might be an issue of “targeting” here – where the admissions board “had it in” for Ms. Gower
           
In re Mustafa – p. 57
            –Mustafa passed the July 1991 Bar examination and is applying to the DC bar
–while at UCLA law, Mustafa used $3,510 from Moot Court funds for his own personal use
–Mustafa’s misconduct was reported to the law school dean … later, he was unanimously recommended to be admitted to the Bar
–the Court disagrees with the board of examiners’ decision to admit b/c there is a strong parallel b/w stealing funds from a student organization at law school and the temptation to mismanage the funds of a client (which leads to disbarment)
–finally, he was denied admission to the DC Bar
àNOTE: a year later, we learn that Mustafa is admitted to the CA Bar and was suspended by the CA Bar for 5 yrs of probation, mandated to retake the MPRE, etc. … here, it appears that the DC Court “got it right” in the first place
 
**misfeasance: “conduct unbecoming a lawyer”
 
**the most common complaint filed against an attorney concerns over-billing (b/c the attorney has charged a client a fee who has lost at court – these are rarely pursued by the Disciplinary Board)
 
**unless you’re in Illinois, it is highly unlikely that you will be disciplined by an ethical board while practicing law
 
**lawyers themselves are self-policing and comprise and dictate ethical standards, best practices, etc.
 
**smaller firms and solo practitioners tend to be more heavily targeted and implicated in ethical cases because larger firms tend to have infrastructures in place to ensure deadlines are met, larger firms tend to have malpractice insurance and the ins. companies have specific guidelines which have to be met as well, smaller firms/solo practitioners are also less likely to have as much clout with the state bar as well (cynical perspective)
 
**In re Peters (p. 72)
–consider the implication of disciplining and choosing not to discipline Peters … would punishing him send a message to all law school deans across the country? … (in the name of preserving the reputation of the profession)
 
Reporting Misconduct by other Lawyers
 
the duty to report misconduct
within the lawyer self-regulatory system, lawyers are forced to report other lawyers’ misconduct to the disciplinary authorities
Rule 8.3 (p. 81)
                                                              i.      Duty to report misconduct that a lawyer knows is occurring and raises a substantial question as to the lawyer’s honesty, trustworthiness,