Professional Responsibility
Prof Laxton
History:
1) ABA Rules: History & Minutia
a) History
i) ABA founded in 1878
ii) Over 400k members today (1/2 of all lawyers in US)
iii) 1969 – ABA creates Code of Professional Responsibility
(1) Watergate lead to major overhaul of the code
iv) revised version of the code was used as a model for 40 states and used for about 25 years
(1) Enron, WorldCom, and HEALTHSOUTH lead to another major re-write
b) Minutia
i) ABA rules are aspirational only, each state adopts its own rules modeled after ABA rules
Admissions/Character and Fitness:
a) Rule 8.1: An applicant or lawyer connected to an applicant/discipline matter shall not
i) Knowingly make false statements or material fact, OR
ii) Knowingly fail to clarify a misunderstanding or fail to respond to a lawful demand for information—except for information protected by Rule 1.6.COMMENTS
(1) Rule covers people applying to the bar as well as lawyers
(2) Rule is limited by 5th amendment and state const. Equivalents—a person using these protections has to do so openly
(3) 1.6 also governs lawyers representing someone trying to get into the bar or facing disciplinary action.
Clients:
1) Getting Clients:
a) How do we get clients:
i) Reputation: word of mouth
(1) Honesty, integrity, civility, responsibility, loyalty, kindness, kindness, compassion
ii) Relationships: Friends, family, etc
(1) Can lead to tension/awkwardness
iii) Advertising: Communication with the public at large: Historically very few ads, seen as demeaning to the profession, then prohibited in 1908 by Canon 27
(1) Bates v. Arizona Bar: Advertising is protected by the 1st amendment but still subject to reasonable regulation; advertising that is false, misleading, or deceptive is subject to restraint
(a) Supreme Court says: Habit and tradition are not in themselves an adequate answer to a constitutional challenge. A blanket prohibition against advertising is unconstitutional
(i) Codified in Rule 7.1: — Governs ALL communications about a lawyer’s services, regardless of the media form used. Prohibits false and misleading communications about a lawyer and a lawyer’s services
1. Test for false and misleading: Any material misrepresentation or fact or law or omission of a fact necessary to prevent the statement from being considered on a whole as materially misleading
(ii) Rule 7.2: The Housekeeping rule;
1. Lawyer may advertise by any form of media, can’t pay someone to recommend your services except for advertising and participation on a legal referral service- ALL ads MUST include the name and address of at least ONE lawyer or law firm responsible for its content
2. Can refer clients to another lawyer or non-lawyer pursuant to a reciprocal agreement but only if the agreement is non-exclusive and client is informed of the nature of agreement
3. Under 7.2 a lawyer can advertise:
a. Name of firm
b. Address/Phone number
c. Kinds of services provided (see Rule 7.4)
d. Fees basis including process for certain services
e. Payment/credit arrangements
f. Names of clients regularly represented
g. Foreign language ability
h. Names of references with their consent
(b) Lawyers may engage in advertising that is not false, misleading or deceptive
(c) Lawyers
act
(1) Direct Solicitation:
(a) Involves a sales pitch via direct contact to an already vulnerable person, and pressure for an immediate response
(i) Includes: In person, Live telephone, Real-time electronic (IMs, text messages)
(b) This form of solicitation is PROHIBITED out of fears of
(i) Fraud, Undue influence, Overreaching, Diminished respect for the legal profession
(c) Motives Matter:
(i) Compare Ohralik and Primus cases – Primus is not disciplined, Ohralik is smacked down
1. Ohralik visits accident victims in hospital and represents for a fee (strong arms them into signing agreement)
2. Primus represents forced sterilization victims at no charge for the ACLU
(ii) Rule 7.3: Solicitation Rule; the codification of Ohralik and Primus, it governs in person solicitation.
1. The rule prohibits solicitation through, Direct person-to-person talks, Live telephone calls, Real time electronic messaging (IMs, text messages) when the motive behind the contact is the lawyer’s profit
a. Four exception to the ban:
i. Other lawyers
ii. Family members
iii. Close personal friends; and,
iv. Former clients
b. the exceptions do not apply where the contact involves coercion, duress, or harassment
Every written, recorded, or electronic solicitation must include the words “advertising material”
