Professional Responsibility
I. Introduction
A. Regulation of the Bar
1. Who regulates lawyers?
a. STATE
2. When, if at all, will the federal courts intervene?
a. If something is an issue of Constitutional magnitude, then and only then will they interfere
3. Requirements for Bar Admission
a. Graduation from ABA Accredited Law School
b. Pass Bar
c. Character & Fitness
4. Requirements for Federal Court Admission
a. US District Court → member in good standing of BAR in that state; can’t always get in EVERY DISTRICT always
b. US Court of Appeals → member of BAR in ANY state
c. US Supreme Court → you need 3 years in good standing and in practice experience w/the state BAR
5. Special Admission Procedures
a. Pro Hac Vice =“for this term only”
(1) Allows you to represent a particular client in a particular case
(2) Only good for matter in which it’s filed
(3) Only lasts for the timeframe that the case is pending
(4) This is an EXCEPTION!!!
b. Law Student Practice Rules → allows you to practice law in a court under the supervision of a real lawyer
B. Character & Fitness
1. Requirement for “current good moral character”
2. Applicant’s Burden of Proof:clear & convincing evidence (more than preponderance but less than reasonable doubt)
3. MCLA 338.41(1): “The propensity on the part of the person to serve the public in the licensed area in a fair, honest and open manner”
4. Characteristics of Good Moral Character [Reputation]
a. What are they?
(1) Honesty
(2) Accountability or Taking Responsibility
(3) Respect for the Law:do you have a criminal history?
(4) Financial Responsibility:will you hold the client’s money as a fiduciary?
(5) Good Judgment
(6) Civil & Polite
(7) Fair
(8) Trustworthy
b. Importance to Legal Profession
(1) Professionals are people who serve others before themselves for the overall good of society
(2) The essence of a profession is that the measure of success is not the gain amassed for the professional, but the service and social function performed
c. Measure of Personal Character
(1) Past behavior & conduct
(2) Personal reputation
d. Categories of Conduct Scrutinized
(1) Residence History
· Since age 16
· Listing your childhood address, only, is insufficient – In Re DeBartolo
· Use family, friends and records as resources
(2) Employment History
· ALL sources of income since high school
· Accurate dates of employment required for each position held
· Accurate addresses are required for each employer: if employer no longer exists, make sure to state it
· Any terminations or situations in which you quit under questionable circumstances must be disclosed
(3) Criminal History
· Must disclose ALL offenses – even charges that were ultimately dismissed or expunged
· Must disclose ALL ARRESTS
· Must provide court records
· Fingerprints:BAR will obtain your federal and state criminal histories and your driving record!!
(4) Civil Litigation History
· Must disclose all lawsuits in which you were a party
· Must provide court records
(5) Financial Responsibility
· Must disclose delinquent debts
· Must disclose bounced checks
· Must disclose bankruptcies
· Your credit report will be scrutinized
(6) Psychological History/Abuse
· Address any such issues NOW
· Substance Abuse Question: “Have you ever used, or been addicted to or dependent upon, intoxicating liquor or narcotic or other drug substances, whether prescribed by a physician or not, the use of, addiction to, or dependency upon which permanently, presently or chronically impairs your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?”
· Mental Health Question: “Have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional or nervous condition which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity or recognize reality or ability to cope with ordinary demands of life?”
(7) Disciplinary History
· Must disclose any school, military or license disciplinary history
· Must provide records
(8) Character References
· Must provide five character references – persons who have known you “continuously for the immediately preceding five years”
· Your references can not be related to you through blood or marriage
e. Relevant Cases
(1) In Re DeBartolo (1986):D failed to satisfy the requirements for character & fitness b/c his bar application contained inaccurate info regarding his high school education and omitted a number of his residences; P had incurred 200-400 parking tickets over short period of time; and had twice falsely misrepresented himself as a police officer to others. Held – D had to reapply for admission to the bar.
(2) In Re Mountain (1986): Here, D violated the Lawyer’s Code of PR. D was representing a couple who wanted to adopt a baby, lied to them about the baby’s physical condition and the fact that the baby’s biological mother didn’t want the Ps to adopt the child. The whole time, D had already made arrangements with another couple to adopt the child for a much higher price being paid to him. Held – D was disbarred from the law practice.
(3) In Re Holmay (1987):D forged or procured the forgery of his client’s signature on documents which he falsely notarized, submitted to a court, and served on the opposing party. Held – D was suspended from practicing law for 30 days and had to pay $500.
5. Fitness
a. Schware v. Board of Law Examiners (1957): Schware was denied admission to the New Mexico bar because during the years 1932 – 1940, he was a member of the Communist party and in that time period, had been arrested for participation in an illegal strike and he had used an alias. Schware appealed the decision denying his admission. Held – reversed; there is no rational justification for finding the applicant unfit.
(1) The offenses in question occurred 20 years prior to application and there is no evidence of current lack of character
(2) One can not reasonably conclude, based on the prior conduct, that the applicant would fail to adhere to the rules of professional conduct
(3) No “rational connection” exists
(4) The Rational Connection Test
· Whether past conduct suggests present character traits
· That will result in future conduct
· Incompatible with the duties and responsibilities of an attorney
(5) Effect of the Passage of Time: The more remote the acts, the less likely the conduct can serve as a basis for denial of admission (Exception: something like murder which is so egregious that no passage of time can amend it)
(6) Query: What if Schware had concealed his participation in the Communist party or lied about it on his bar application?
(7) E.g. – Ohio Lawyer Example: Ten years ago there was a lawyer who wanted to practice in MI so she filed a bar application and application asked for her criminal history, and she answer “NO” to a drunk driving question. The bar found out and
Plumbers Unit”
a. Installed bugs to spy on the Democratic Party and plugged leaks in the administration
b. The scandal resulted in the criminal indictment of these 40 lawyer/gov’t officials and the President’s resignation
9. Their Defense? → The Code of Professional Responsibility failed to give specific or clear notice that things like: Conspiracy; Burglary; and, Espionage were unethical and improper conduct for an attorney
10. Reforms Sought
a. The ABA created the Commission on Evaluation of Professional Standards, to review the Code and adopt more specific standards
b. In 1983 – after 10 years of debate and resistance, the ABA finally succeeded in a new Code – The ABA Model Rules of Professional Conduct
c. Thereafter, 40 states and jurisdictions adopted rules patterned on the new ABA rules. These rules were in place for about 25 years.
11. Ethics 2000
a. In the wake of Enron, WorldCom, and HealthSouth – it was clear that the rules required further revision
b. The ABA launched “Ethics 2000” to address additional deficiencies in the rules
c. 2002 – Ethics 2000 resulted in many significant changes to the rules
12. State Codes of Conduct
a. The ABA Rules are aspirational only
b. Each state adopts its own rules patterned on the ABA Rules
c. A state’s code of lawyer ethics is found in publications like West’s Rules of Court
d. The rules can also be found on your state bar’s website.
13. Other Ethics Rule Sources
a. State Statutes
b. Local Rules
c. Ethics Opinions
d. Hotlines
e. Your Conscience
14. The Bottom Line
a. Where honesty and integrity are concerned, permit yourself no rationalization
b. Be vigilant
c. Honesty and integrity are lost insidiously
15. What does this mean?
a. We are our own worst enemy
b. By human nature we have a tendency to rationalize, make excuses and engage in justifications for doing the wrong thing
c. Examples
(1) Example 1: Time has been called but you have just one “bubble” left to fill in on your MC portion of the exam… It would take just two seconds and no one is looking…
(2) Example 2: If you wait until your turn to register, you won’t get half the classes you need. It appears that no one is keeping track of whether students register in order of number. All you have to do is “jump” the line…
(3) Example 3: If you start your computerized research now you’ll likely get a better grade on your paper in Research & Writing. Who will know but you whether you waited until the required week to commence the use of computerized research?
(4) Example 4: You aren’t feeling well but you can’t afford another absence on your class record. You’ll be dropped from the course. You know that the professor takes attendance at the beginning of class, only. All you have to do is to “slip out” at the first break and no one will be the wiser…
