Professional Responsibility
Chapter 1 – Introduction to Legal Ethics
Ethics – Ideas of write and wrong; major branch of philosophy that encompasses right conduct good life
Legal Ethics – The rules or standards governing the conduct of the members of a profession
Profession – A whole body of persons engaged in a calling; a calling requiring specialized knowledge
– Sources of Professional Responsibility of Ethics:
o Personal Morals
o Collective Morals
o Rules of Professional Conduct
o Professionalism (traditions, courtesies, the way we operate, etc)
o Case law (criminal, fiduciary, malpractice, agency)
Lawyer has 4 Professional Relationships:
– Lawyer to Client
– Lawyer to Community
– Lawyer to Court
– Lawyer to Lawyer
Questions to ask in each situation:
– Who’s involved?
– What are their interests?
– How does it relate to the rules?
– What can I do?
Comity – Willingness of one jurisdiction to respect the decisions and orders of another court
Reciprocity – “I’ll take your people if you take my people”
à Lawyer admitted in one state, can practice in another
Philosophical Approaches:
– Utilitarianism
o The greatest good for the greatest number of people
– The Golden Rule
o Treat others as you wish to be treated
– Categorical Imperative
o Treat humanity as an end withal, never as means only
Chapter 2 – Sources and Application of Legal Ethics Rules
Admission to Practice in the Courts of a State
– Residency Requirements
o No residency requirements
– Character Requirement
o Graduate law school, pass the bar, character & fitness process
o Good Moral Character:
§ Basic Honesty
§ Respect for the Law
§ Respect for the Right Others
Konigsberg v. State Bar (1957)
– Member of the Communist party
o Supreme Court said that alone wasn’t enough to prove the applicant lacked good moral character
o Offended his 1st Amendment rights à no record of taking action to overthrow US gov’t
In re DeBartolo
– 200 to 400 parking tickets
o Omitted residences and gave inaccurate information concerning his high school education
o Misrepresented himself to others as a police officer
– Court did not bar him for life, allowed him to reapply for admission
Frasier v. Board of Law Examiners
– 3 DUI’s
o What do you argue?
§ One problem, not 3
§ Paid his price already
– Didn’t let him in à but later admitted him after he made a better reputation for himself
In re Ruffalo
– Lead case – every state understands it
o Sui generis – unique to itself (attorney discipline matters)
– Can’t punish someone for something they never charged him with
Elements of Due Process:
– Notice of the Charge
– Opportunity to Respond (be heard)
– Fair & Impartial Trier of Fact
o This is what Ruffalo does for lawyers
Sources of Guidance on Legal Ethics
– State Rules, Statutes, and Rules of Court
– ABA Model Code of Professional Responsibility
– ABA Model Rules of Professional Conduct
– ABA Model Code of Judicial Conduct
– Advisory Opinions of Ethics Committees
– Ethics Hot Lines
Admission to Practice in Other States
RULE 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law
– (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so
o Only practice where authorized to do so
o Inappropriate to practice in jurisdiction where you are not admitted
– (c) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
o Are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter, etc
à Attorney who wants to practice in Federal Court must be separately admitted to the bar of that court
– Requires the applicant be admitted in the state in which the Federal Court sits
o Practice before the courts of a state for at least 3 years
Discipline
– The penalties imposed by a disciplining agency on an attorney who has breached a rule or statute for which discipline can be imposed
o Three types:
§ Disbarment
§ Suspension
§ Reprimand (public or private)
RULE 8.1 – Bar Admission and Disciplinary Matters
– An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplin
ments
– A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
o (a) Representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
o (b) Representing the client is likely to result in an unreasonable financial burden on the lawyer; or
o (c) The client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client
Bothwell v. Republic Tobacco Co
– Indigency
o Factors to Consider:
§ Factual complexity of the case
§ Ability of plaintiff to investigate the facts
§ Existence of conflicting testimony
§ Plaintiff’s ability to present his claims
§ Complexity of the legal issues
§ Plaintiff’s ability to obtain counsel of his own
o Inherent Authority
§ Courts possess the inherent power to bring to their assistance “instruments” necessary to ensure a “fair and just” adjudicative process in individual cases
§ Due to the adversarial nature of our system, lawyers are a necessary component in ensuring such a “fair and just” process
§ Neither the private marketplace nor public or charitable efforts provide indigent litigants with adequate access to legal assistance AND
§ To that extent such failure threatens the reliability of the results of the adversarial process
– Marketability Analysis
o Whether there is a market of lawyers who practice in the legal area of Plaintiff’s claims
o When there is a market – does Plaintiff have adequate access to that market?
o Examination of the typical fee arrangements used in the particular area of the law implicated by the indigent Plaintiff’s complaint
o Most important – whether the market’s rejection of the party’s claims was the result of indigency
