PROFESSIONAL RESPONSIBILITY COURSE OUTLINE
SPRING 2006 – TAYLOR
CHAPTER 1 – INTRODUCTION TO ETHICS
MR 1.1 – Competence
A lawyer shall provide competent representation to a client. This includes the legal knowledge, skill, thoroughness, and preparation ‘reasonably necessary for the representation.”
Legal Malpractice – negligence or intentional misconduct towards the client.
The client must prove:
i. The lawyer owed a duty to the client
ii. The lawyer failed to exercise the “skill and learning usually shared by members of the legal profession.”
iii. The breach of duty caused harm to the client
Legal malpractice is a lawyer doing anything that a reasonably prudent lawyer in his or her position would not do OR the omission to act when a reasonably prudent lawyer would have acted in the same situation.
1996-1999: 35k claims were filed, but only 6k resulted in settlement more than $10,000.
Admission to practice law – established by SC in each state
MR 8. 1 Bar admission and disciplinary matters
i. An applicant applying to bar, or a lawyer in connection with a bar application or in connection with any disciplinary matter SHALL NOT:
1. knowingly make a false statement of material fact; OR
2. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter OR knowingly fail to respond to a lawful demand for information from an admissions board
Always disclose everything on bar application – including the use of illegal drugs while in law school (“The Pot Problem”)
i. Lying on the application will be worse if they find out about it later – be candid upfront.
ii. Answer questions on application like a lay person – don’t try to give “lawyer” answers.
The “moral character and fitness” examination – an applicant must show by “clear and convincing evidence” that they possess good moral character and general fitness to practice law at the time of admission.
i. Very subjective – questions asked are not necessarily determinative indicators of an applicants fitness to practice law; however, the point is that they “cast a wide net” to test the truthfulness of the applicant – if they do not lie now, they won’t lie when they are a practicing attorney.
ii. The mental health of an applicant is very important to determine their “fitness” to practice law – if an applicant is mentally unstable, then how are they supposed to take care of their client and his or her interests. (The Rose Gower Story – depression and hospitalization in high school = bar admission board prying into medical records and delays in admission)
1. Privacy concerns – mental health questions as a mechanism to screen out possible serious conditions that could occur in the future – vs. – prying into an applicants privacy. Are bar examiners qualified to judge a candidates mental health status and determine if past mental problems would prevent them from being a good lawyer? NO.
iii. Do not get into disciplinary trouble in law school – acting in any way that is “morally unfit” will prevent you from passing the bar.
1. Don’t steal while in law school – if you steal now, you will steal from clients later.
2. In Rea Mustafa – moot court president got into trouble for “borrowing” money from the moot board. Even though he had a very good past record of moral character, the district court in DC denied his application to the bar even though the bar disciplinary committee admitted him to practice law
iv. Do not lie or “doctor” resumes – lying or embellishing on resumes while in law school shows a pattern of untruthfulness whi
arrant charges to be filed
a. hearing committee and recommended sanctions
· hears evidence
· determines facts
· recommends sanctions
b. decision reviewed by highest court and final decision made
MR 8.3 – the duty of a lawyer to report misconduct by other lawyers
i. A lawyer who KNOWS that another lawyer has violated an ethical rule which raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness to practice MUST inform the appropriate professional authorities.
a. only those violations that raise substantial questions of lawyer’s honesty or fitness
b. a lawyer assisting a lawyer who is in a treatment program
c. if a report would reveal information required to be kept confidential under ACP
ii. idea that a lawyer must report ALL serious misconduct that is not confidential
1. It is unethical for a lawyer not to report others involved in serious misconduct and a lawyer who fails to report is also subject to discipline; however, this does not happen often
a. idea is to “break the silence in the legal profession”
MR 5.1 – the responsibility of supervisory lawyers
i. Must make reasonable effort to ensure that the firm has in effect measures that force all lawyers to comply with the ethics rules
ii. A lawyer shall be responsible for another lawyer’s violation of the ethics rules IF:
The supervising lawyer orders or ratifies the conduct; OR