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Professional Responsibility
West Virginia University School of Law
Taylor, John E.

Professional Responsibility – Taylor

Law, Lawyers and Ethics

ABA Model Rules of Professional Conduct – no force unless adopted by the state
Ethics 2000 Commission – broadened exceptions to confidentiality, changes to conflict of interest rule, duty to client even if it would cost others lots of money
2003 Revisions on confidentiality after Enron

Adversarial Model (Spaulding aneurysm case)

No duty to disclose adverse evidence to opposing party during adversarial process
Duty of candor to court in settlement process if opposing party is a minor b/c settlement no longer adversarial

If P were an Adult – no duty for D’s attorney to tell ever, P chose his own attorney and must pay consequences if attorney doesn’t ask the right questions, P’s remedy is in malpractice against lawyer

MR 4.1 (duty of truthfulness to others)
Affirmative Misstatement of material fact or law – no good
Failure to Disclose – generally acceptable (unless failure to disclose is necessary to avoid assisting in criminal or fraudulent act by client)

MR 1.4 (duty of informing the client) – lawyer obligated to inform client and make decision with client, when the law is uncertain you should tell client that it is uncertain rather than representing law to be clearer than it is

MR 2.1 (duty of counseling/advising the client) – attorney may advise client on moral ground as well as legal

Pepper – defense of Amoral Role
First-Class Citizenship/Autonomy Defense – obligation to put client’s interests first
Lawyers are professional
1. Monopoly on access to service/law
2. Clients are vulnerable
3. Law is self regulated
Lawyer should not impose moral filter – giving client autonomy is moral good in itself
Autonomy outweighs significance of minor moral wrongs (really bad things are illegal)
Refusal of services is a last resort

Luban – Lysistratian Prerogative
Lawyers should withhold services from a client when they disagree morally (informal like family dissuading you)

Legal Realism
Law can be manipulated, not certain, no moral constraint on law (demystifies the law)
No moral constraint in law because boundaries are moveable
Pepper’s Resolution: moral dialogue with client
Luban’s Resolution: lawyer as policeman (inform client but refuse to help)

ABA Opinion – Inadvertent Disclosure of Confidential Info
Luban: call other lawyer and ask what to do with it, don’t alert client
Criticized by zealous advocacy proponents
We all make mistakes at some point
Helps clients b/c system runs more smoothly
Screwing over other lawyers is bad
Arguing over every little thing drives up costs for clients

***All other bodies of substantive law (criminal, tort) trump the Model Rules!! (Stenhach hidden gun shaft case)

MR 3.4(a) – Fairness to Opposing Party/Counsel

Lawyer shall not unlawfully alter, destroy, or conceal evidence from another
Refers lawyer out to criminal law

Example: hindering prosecution and tampering w/ evidence

Duty to deliver evidence in criminal trial (documents created for client rep. are protected by A/C P, but not physical evidence)

D attorney may hold possession for a reasonable amount of time
D attorney may return it to the source if he believes that it won’t be destroyed (generally it should just be turned into P)
If D attorney finds the evidence but does not move it, no duty to deliver b/c evidence still out there for police to find, still in same location which is part of evidence (Belge dead body case)
When turned in by D attorney, P cannot tell jury where it came from

Quality Control: Discipline and Competence

2 Forms of Quality Control

Malpractice Suits

Disciplinary Process
1. Complaint (not public record – the beauty of self regulation)
2. Pre-Charge Screening by disciplinary enforcement agency
3. Notice of Charge
4. Informal Discovery
5. Right to Counsel
6. Right to subpoena witnesses and evidence
7. Basically a Civil Trial without a jury

Disciplinary Sanctions (lesser sanctions are more common)

Disbarment (temporary or permanent)
Public Censure (court orders an opinion that lawyer is bad)
Private Reprimand (court tells lawyer he was bad)

MR 1.1 (Duty of Competent Representation) – competent representation requires the legal knowledge, skills, thoroughness, and preparation reasonably necessary for the representation

MR 8.4 (Misconduct) – violation of the rules makes you subject to discipline

Common Client Complaints (rarely pursued b/c of $ and inadequate staff)
· Fees
· Neglect
· Incompetence

MR 8.3 (Reporting Obligation) – must report actual knowledge of other lawyer’s violations
· Policy: so others take our self-regulation seriously
· In Re Himmell (settlement to hide misconduct) – 1st case ever where lawyer actually got in trouble for not reporting, but might be decided differently under new Model Rules b/c new code gives greater weight to confidentiality

Competency Checks
· Required legal education
· Bar admission requirements
· Market discipline (economics)
· Peer Review
· CLE requirements
· Legal Malpractice threats

Practical Limits to Malpractice as a Check on Competence
· Claim must be worth a lot of $
· Heavy burden of proof

Malpractice Analysis
(1) Is there a duty between attorney and client, beneficiaries, etc.?
(2) Breach, what is the standard of care owed?

Skill, prudence, and diligence that an ordinary lawyer would use in similar circumstances (reasonable care, based on custom)

Lucas v. Hamm (not malpractice b/c no one gets RAP)
Smith v. Lewis (lawyer breached because he didn’t do basic research on retirement assets)

Expert Testimony – needed unless it would

and reasonable, as viewed by the court in hindsight after the fact
3. client must be advised to seek outside counsel (also in writing)
4. client must have informed consent (stranger rule)
a. “Stranger Rule” – attorney must disclose as if he were a 3rd party attorney
Conflicting interests are inherent in lawyer/client business transactions (Mershon, dividing the farm case)
(d) (Contracting for Client’s Story) – lawyer can’t negotiate literary/film rights while representing client (bright line rule), might affect the trial in process to get a good story, line drawn at the end of representation
(c) (Gifts from Clients) – (i.e. writing self into will) lawyer can’t draft an instrument leaving goods to self or close family member, must tell the client to get someone else to draft it if it will leave gift to you (bright line rule)
(d) (Sex with Clients) – no sex while engaged in representation (bright line rule), to protect the emotional vulnerability of clients

MR 1.15 (Protecting Client Property) – can’t commingle funds, can’t borrow from client account, must safeguard client funds by maintaining them in a separate account and keeping good records for 5 years

IOLTA (Interest on Lawyers Trust Accounts) – interest on client’s $ belongs to client

MR 1.2 (a) (Lawyer Client Relationships) – client decides objectives of representation, lawyer decides means of reaching objectives after consulting with client, lawyer must discuss actions with client, if client disagrees with means he/she can choose a new lawyer, always client’s choice to settle or not

Lawyer cannot threaten abandonment if client refuses to settle (b/c this is always the client’s choice)
Lawyer’s authority to act on client’s behalf

Actual – express, implied, inherent

Express – client gives attorney authority through words
Implied – client implies attorney’s authority through his actions
Inherent – legal rules delegate authority to attorney regardless of client consent

Apparent – when client causes 3rd party to believe that attorney has authority to act on behalf of client (Teleprompter settlement case)

Client always has the right to

1. plead guilty
2. waive a jury trial
3. testify on his own behalf
4. take an appeal

Attorney must use best judgment in choosing strategy (sometimes it’s better to raise fewer arguments), these are decisions that must be made by the lawyer even if client disagrees (Jones v. Barnes, 5 or 2 arguments case)

MR 1.14 (Disabled Clients) – applies to children and the mentally impaired, 1st course of action