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Professional Responsibility
West Virginia University School of Law
Vojdik, Valorie K.

Ethics – Outline – Spring 2007 – Prof. Vojdik

Overview

ABA Model Rules of Professional Responsibility – This class focuses on the Model Rules because W.Va. has for the most part adopted these rules.
· It focuses on Shalls.

Look at things from view of Zealous Advocate, Officer of Court, Neutral Partisanship, Administration of Justice, etc.

I. The Lawyer’s Role in the American Adversary Legal System

Main Rules – 1.1 (Competence), 1.2(Scope of Representation), 1.6 (Confidentiality), 3.1 (Nonfrivolous Claims), 3.2 (Expediting Litigation), 3.3 (Candor toward Tribunal), 3.4 (Fairness to Opposing Counsel),4.4 (Respect rights of 3rd Persons).

Rule 1.6 – Confidentiality of Information – Lawyers shall not to reveal ANY information relating the representation of a client unless the client gives informed consent.
· General Rule — Lawyer can’t tell what client told them or anything related to the representation.
· Exceptions (B)– You May (don’t have to) reveal information if:
o (1) May reveal to prevent reasonably certain death or substantial bodily harm.
o (2) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another.
o (3) To prevent, mitigate or rectify substantial injury to financial interests of another that is reasonably certain to result from the client’s commission of a crime or fraud of which the client has used the lawyer’s services.
o (4) To secure legal advice about the lawyer’s compliance with the rules.
o (5) To establish a claim or defense against Malpractice
o (6) To comply with a court order or law.

Rule 3.3 – Candor Toward the Tribunal – Lawyer is officer of the court.
o (1) Lawyer shall not knowingly make a false statement of fact or law.
o (2) Lawyer shall not fail to disclose to the tribunal to be directly adverse to the position of the client and not disclosed by opposing counsel. – if there is controlling authority that is directly adverse to our claim, we must submit it to the court even if the other party doesn’t bring it up (Be an officer of the court)
o (3) Lawyer shall not offer evidence that the lawyer knows to be false.

Rule 3.4 – Fairness to opposing party and counsel
§ Lawyer shall not (1) unlawfully obstruct access, (2) falsify evidence, (3) knowingly disobey an obligation of the court, (4) make a frivolous discovery request, (5) in trial, allude to any matter that the lawyer doesn’t reasonably believe is relevant, (6) request a person other than a client to refrain from voluntarily giving relevant information to another party unless (a) the person is a relative or an employee or other agent of a client, and (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
Rule 8.4 – Misconduct
§ It is professional misconduct for a lawyer to:
· (a) violate the Rules of Professional Conduct
· (b) commit criminal act that reflects adversely on lawyer’s honesty
· (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
· (d) engage in conduct that’s prejudicial to administration of justice.
· (e) state or imply an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct
· (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Substantial Bodily Harm – Can include imprisonment.

Officer of the Court – The lawyer is an officer of the court. Lawyer has a special interest in insuring the fair and just justice system.

Confidential Experts – If an expert is not testifying at trial, your communication with them is protected and not discoverable because it is considered Work Product.

Fraud – Failing to speak when you know the party is reasonably relying on your misrepresentation.
· They must be relying on your misrepresentation.

Settling cases involving minors – Court has to confirm the settlement through a hearing to validate that it is in the best interest of the minor.

Confidentiality’s Reasonably Certain requirement – You have to be reasonably certain something will occur before you disclose.
· If you have three people saying she isn’t hurt bad and one saying she is, you aren’t reasonably certain she is hurt bad.

Neutral Partisanship – Pursuing your clients (not your own) interests vigorously and discovering your own morality from that of the client – as long as it is within the law.
· Partisanship – Goal is to competently and diligently represent client’s interest.
· Neutrality – You are morally neutral.
o How to justify this — This is an adversarial system.
o Is this supported by Model Rules? – Must abide by legal objectives. But may use professional judgment in means of representation
§ Rule 1.2 (Scope) – (1.2 C) Lawyer may limit the scope of representation if reasonable and client makes an informed consent.
· (1.2 B) Lawyer’s representation of a client does not constitute an endorsement of the client’s views.
§ Rule 1.3 (Diligence) – Lawyer shall act with reasonable diligence and promptness.

Errant Fax — Rule 4.4 (Respect for 3rd persons) says you must notify if you get a fax not intended for you. You do not have to return it however. And rules don’t prohibit you from reading.
· Inadvertent Waiver – Allows argue to say they inadvertently revealed information.

Rules
· (1.2) Lawyer shall reasonably consult client about means to achieve client’s objective
· (4.4) Your tactics cannot have a SOLE reason to embarrass or delay
· (1.6) All Information is confidential regarding the representation of the client.
· Attorney-Client Privilege is a narrow evidentiary privilege that pertains just to information you receive from client.

Getting dirt on opposing counsel – (Rule 4.4) – If sole purpose is to get dirt on an opposing counsel to get them to settle the case, you are violating the rule.

Misconduct (8.4) – It is professional misconduct for a lawyer to violate or attempt to violate the Rules or knowing assist or induce another to do so.
· Prejudice – You violate 8.4d if you manifest prejudice or bias and it becomes prejudicial to the administration of justice.

No frivolous cases (3.1) – Must have a basis in law or fact that is non-frivolous.
o Good Faith is the measuring stick.

Judicial Appointment (6.2) – You cannot avoid a court appointment just because you think someone is morally repugnant.
o They must be morally repugnant to the point where it will impair your ability to represent them.

Alternatives to Neutrality
· Amoral Lawyer – Lawyer has no moral responsibility for representing a client.
· Moral Control of Client – Lawyer imposes his moral views on the client by controlling the goods pursued and the means used. If you think your client is being immoral, you have a responsibility to point that out to them and possibly withdraw.
· Choice of client as moral decision – Lawyer picks based on moral decisions.

Withdraw – You must give notice or get permission from tribunal if you are trying to withdraw from the representation of a client.

Disclosing Cases – You must disclose controlling decisions in your jurisdiction, even if your opponent doesn’t.
· It must be (1) directly adverse to your position and (2) directly con

udicial conduct or other law.
§ No ex parte communications with a judge.

Rule 1.5 – Fee
· Lawyer should not charge unreasonable fees.

Client reveals something to a 3rd party – This will destroy the privilege nature of the attorney/client privilege. Keep everyone out of the room when talking to your client.

In Re Himmel Example – Attorney was disciplined for not reporting lawyer misconduct because he thought the client had already reported it.
· Violations Already Reported – The attorney must report the information of violations even if your client has already reported it.
· Compounding a Crime – You can’t try to settle a claim by using reporting the violation as leverage.

No protection from firm (Catch 22 in Rule 8.3) – There is a glitch in all of this because if you report, your firm might fire you. You have to report, but your employer can release you.

Lawyer who continually settles for extremely low amounts – You should question his Competence, Substantial question to honesty, trustworthiness and fitness.

Lying about need for continuance – Violates candor toward tribunal (3.3)

Racial Slur – Violates 8.4 because it is prejudicial to the administration of justice because it brings bias into courtroom.

What is your duty? – Do you have an obligation to report (8.3)
o Rule 8.3 – Reporting – If they raise a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer, you shall report it if you know the lawyer has committed a violation of the Rules of PC.
o Can you report? (Rule 1.6 protects information relating to the representation.)
o Would reporting require the disclosure of confidential information?
§ No, it doesn’t seem like it. But you might be able to construe anything that relates to the representation of your client.
o Rule 1.6 Confidentiality – Is designed to protect the client. It is broad. It protects information from any source. (Here, this is information about the scheduling a conference you have learned from opposing counsel). It is best to ask your client for consent.
o If you know the lawyer is lying and you don’t correct it, are you making a false statement?
Disciplinary Sanctions
· ABA Standards
o 5.1 – Failure to maintain personal integrity
§ Disbarment is acceptable when lawyer engages in serious criminal conduct. Doesn’t disqualify you forever. You can try to reapply or get in in other states.
§ If you break the law, you will be subject to sanctions.
§ Aggravating offenses – If you have prior history, or prior occurrences, you get stiffer penalties.
§ Mitigating Circumstances (9.3 ABA) – absence of record, absence of a selfish motive, personal or emotional problems, timely good faith effort to rectify situation, full and free disclosure, character, reputation

· Disbarment Examples — Prosecutor was disbarred for growing weed on his land. Without doing this, it would undermine the legal system because he is violating the law he protects.