Professional Responsibility
Prof. Morgan, Fall 2002
Professional Responsibility Outline
Prof. Morgan, Fall 2002
Table of Rules
Model Rules, Revised Rules,[1] Restatement,[2] and Model Code[3]
Rule No. Rule Name Outline Page No.
Rule 1 – Client-Lawyer Relationship
1.1‡ Competence 2
1.2*† Scope of Representation 6, 16
1.3 Diligence 22
1.4 Communication with Client 6
1.5* Fees 7
1.6*† Confidentiality [See Restatement for Attorney-Client, Work Product Privileges] 9
1.7*†‡ Conflicts: General Rule 10
1.8*‡ Conflicts: Prohibited Transactions 4, 12, 13, 15
1.9† Conflicts: Former Clients 14, 15
1.10* Imputed Disqualifications: Generally 15
1.11 Successive Government/Private Employment 15
1.13†‡ Business Organizations 17
1.14 Client Under Disability 16
1.15* Safekeeping Property 7
1.16*† Terminating the Relationship (Withdrawal) 6
1.17 Sale of Law Practice 30
1.18*† (E2000 only) Prospective Clients [see also Restatement § 15 on p. 14] 5, 14
Rule 2 – Counselor
2.1‡ Advisor 16
2.3 Evaluator 19
Rule 3 – Advocate
3.1†‡ Meritorious Claims 22
3.2 Expediting Litigation 22
3.3† Candor to the Tribunal 22
3.4† Fairness to Opposing Counsel/Party 18, 23
3.5 Impartiality of Tribunal 19
3.6 Trial Publicity 24
3.8 Special Role of Prosecutor 25
Rule 4 – Transactions With Persons Other Than Clients
4.1† Truthfulness in Statements to Others 18
4.2 Dealing With Persons Represented By Counsel 18
4.3 Dealing With Unrepresented Persons 18
4.4 Rights of Third Persons 24
Rule 5 – Law Firms and Associations
5.1 Responsibilities of Partners/Supervisory Lawyers 29
5.2† Responsibilities of Subordinate Lawyers 29
5.5*† Unauthorized Practice of Law 1
5.6† Restrictions on Right to Practice 30
Rule 6 – Public Service
6.1 Pro Bono 30
6.2 Appointment by the Court 5
6.3 Membership in Legal Service Organization 13
6.3 Law Reform Activities Affecting Client Interests 13
Rule 7 – Information About Legal Services
7.1*‡ Communications Regarding Legal Services 26
7.2 Advertising 27
7.3 Direct Solicitation of Clients 27
7.4* Communication of Fields of Practice 28
Rule 8 – Maintenance of the Legal Profession
8.1 Bar Admittance and Disciplinary Matters 1
8.2 Judicial Officials 19
8.3‡ Reporting Misconduct 3
8.4 Professional Misconduct 1
8.5* Disciplinary Authority: Choice of Law 2
ABA Model Code of Judicial Conduct 19-23
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Professional Responsibility
Prof. Morgan, Fall 2002
I. What it Means to Be a Lawyer
A. Approaches to Legal Ethics
1. ethics of duty –the idea that there is a minimum level of ethics to which a lawyer should adhere
2. ethics of aspiration – what the best lawyer would do (even though we’ll never reach these standards)
a. Model Rules reflect more the ethics of duty, even though they attempt to get at aspiration, too
b. note concept of maintaining satisfaction b/w “rule ethics” and “personal ethics” – the dilemma is b/w what you feel like you should do as a lawyer b/c it’s morally right and what you have to do under the legal rules
3. other approaches
a. consequentialist (utilitarian) – what rule gets the best results?
b. deontological – some things are right and other are not – labels are put on behavior which lead to a conclusion
c. ethics of care – idea that the most important issue for a lawyer is the relationship w/ a client
B. Character and Fitness to Practice Law
1. What is required for lawyers in application for admission to the bar?
a. Model Rule 8.1 – Applicant for admission to the bar shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in a matter, or knowingly fail to respond to lawful demand for info. from admissions or disciplinary authority, except that the lawyer need not reveal info. otherwise protected by Rule 1.6
2. What does it mean that lawyers must have good moral character?
a. Model Rule 8.4 – It is prof. misconduct for a lawyer to:
(a) violate the Rules or knowingly assist someone else to do so
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer
(c) engage in conduct involving dishonesty, fraud, deceit or misrep.
(d) engage in conduct that is prejudicial to the admin. of justice
(e) state or imply ability to improperly influence govt. official; or
(f) knowingly assist judge or judicial officer in conduct that violates the Rules
cmt 1. – Offenses that adversely affect fitness to practice law are limited to those relevant to law practice, rather than generally those of “moral turpitude”
3. What does a law license allow you to do?
a. Model Rule 5.5 – Lawyer shall not:
(a) practice law in jurisdiction where doing so violates regulation of legal profession in that jurisdiction; or
(b) assist a person who is not member of the bar in an activity that constitutes unauthorized practice of law
b. Revised Rule 5.5 – Adds new subsection (b):
(b) a lawyer admitted to practice in another jurisdiction but not this one does not engage in unauthorized practice of law if:
(1) you are authorized to appear by law/court order; or
(2) other than appearing pro hac vice, lawyer can practice w/o being admitted if:
(i) s/he is in-house corp. counsel working on corp. matter;
(ii) s/he is acting on a matter related to a practice for a client in juris. where lawyer is admitted; or
(iii) lawyer is associated w/ local counsel for the particular matter
c. Restatement § 3 – Lawyer currently admitted to practice in a jurisdiction may provide legal servs. to a client:
(a) anywhere in the admitting jurisdiction;
(b) before a tribunal in another jurisdiction in compliance w/ requirements for temporary or regular admission to practice before it; and
(c) in another jurisdiction to the extent the activities arise of out of lawyer’s practice under (1) or (2) above.
II. Sanctions and Remedies for Misconduct
A. Lawyer Competence
1. What does it mean to be a Competent Lawyer?
a. Model Rule 1.1 – A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
→ cmt. 1 – determination of whether lawyer has requisite knowledge and skill is based on relative complexity of the matter, lawyer’s general experience, preparation and study required; most often required proficiency is that of a general practitioner
→ cmt. 2 – competent representation can be provided through association w/ a lawyer of established competence in the field in question
→ cmt. 3 – in an emergency lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation w/ another lawyer would be impractical, but the advice should be limited to that reasonably necessary under the circumstances
→ cmt. 6 – lawyer should engage in continuing study and education to maintain requisite knowledge and skill
b. Model Code 6-101(A) – A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle w/o associating w/ a lawyer who is competent to handle it
(2) Handle a legal matter w/o preparation adequate in the circumstances
(3) Neglect a legal matter entrusted to him.
B. Remedies for Lawyer Misconduct
1. Which state can discipline a lawyer?
a. Model Rule 8.5
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to its disciplinary authority regardless of where the misconduct occurred; the lawyer may be subject to the disciplinary authority of this jurisdiction and the jurisdiction where the lawyer is admitted for the same conduct.
(b) Choice of Law. In exercising its disciplinary authority, this state shall apply the Rules as follows:
(1) for conduct in connection w/ a proceeding in a court before which a lawyer has been admitted to practice the rules to be applied are those of the juris. in which the court sits
(2) for any other conduct:
(i) if the lawyer is only licensed to practice in this jurisdiction then this jurisdiction’s rules shall apply
(ii) if the lawyer is admitted to practice here and another juris., the rules to be applied shall be those of the juris. in which the lawyer principally practices, unless the conduct has its predominant effect in the other juris., at which point that jurisdiction’s rules shall apply.
b. Revised Rule 8.5 – revises part (a), (b)(2)
(a) [in addition to what’s listed above], a lawyer not admitted in this jurisdiction is subject to the disciplinary authority of this juris. if the lawyer renders legal services in this jurisdiction.
(b)(2) for any other conduct, the rules of the juris. in which the lawyer’s conduct occurred, or if the predominant effect is in other juris., the rules of that juris. shall be applied. A lawyer is not subject to discipline if his/her conduct conforms to the rules of a juris. in which the lawyer reasonably believes the predominant effect of the conduct will occur.
2. Obligation to Report Lawyer Misconduct
a. Model Rule 8.3
(a) Lawyer having knowledge that another lawyer has committed a violation of the Rules that raises substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate prof. authority
(b) Lawyer having knowledge that a judge has committed a violation of the rules of judicial conduct that raises substantial question as to the judge’s fitness for office shall inform appropriate authority
(c) This rule does NOT require disclosure of info protected by 1.6
b. Restatement § 5
(a) Lawyer is subject to discipline for violating any provision of an applicable lawyer code
(b) Lawyer is subject to discipline for attempting to commit a violation, knowingly assisting another to do so, or knowingly doing so through another’s acts
(c) [Same as MR 8.3(a)] Lawyer who knows of another’s violation of applicable rules raising subst. question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate prof. authority
3. Regulating Lawyers Outside the Formal Disciplinary System
a. Restatement § 6 – for lawyer’s breach of duty owed to client or nonclient, judicial remedies may be made through judgment or order, and include (1) money damages, (2) injunctive relief, (3) award for unjust enrichment, (4) cancellation or reformation of K, etc. → pretty much any remedy out there is available here
b. Restatement § 8 – lawyer is guilty for criminal offenses which occur in the course of representation to the same extent and on the same basis that a nonlawyer would be guilty; but the traditional and appropriate activities of a lawyer in representing a client will be taken into account in assessing the conduct.
c. Restatement §§ 48-51 – Lawyer Negligence – lawyer is civilly liable for prof. negligence to person to whom he owes D/C; also civilly liable for breach of FD. D/C is owed to clients, prospective clients, and certain other nonclients as identified in § 51 (will beneficiaries, instances where lawyer has undertaken responsibilities to the nonclient [e.g. third party opinion that someone else relies on] or where lawyer represents a party who owes FDs to another party).
d. Restatement § 51 – Duty of Care to Certain Nonclients
Lawyer owes D/C in each of the following circumstances:
(1) to a prospective client
(2) to a nonclient when and to the extent that:
(a) the lawyer or the client invites the nonclient to rely on the lawyer’s opinion or provision of other legal services and the client so relies;
(b) the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection
(3) to a nonclient when and to the extent that:
(a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient;
(b) such a duty would not significantly impair the lawyer’s performance of obligations to the client; and
(c) the absence of such a duty would make enforcement of those obligations unlikely.
(4) to a nonclient when and to the extent that:
(a) the lawyer’s client is a trustee, guardian, executor or fiduciary acting primarily to perform similar functions to the nonclient
(b) lawyer knows that appropriate action by him is necessary to correct a breach of FD owed by the client to the nonclient
(c) nonclient is not reasonably able to protect its rights; and
(d) such a duty would not significantly impair the performance of the lawyer’s duty to the client.
e. Restatement § 52 – Standard of Care
(1) Lawyer who owes a D/C must exercise the competence and diligence normally exercised by lawyers in similar circumstances
(2) Proof of a violation of a rule or statute regulating the conduct of lawyers:
(a) does not give rise to implied COA for prof. negligence or breach of FD
(b) does not preclude other proof concerning D/C
(c) may be considered by trier of fact in understanding (1) above
f. Model Rule 1.8(h) – lawyer shall not make agreement prospectively limiting lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement
III. The Lawyer-Client Relationship
A. Obligation to Take Client’s Case
1. EC 2-26 – Lawyer is under no obligation to act as advisor or advocate for every person who wants to become his client, but should not lightly decline proffered employment – lawyer must accept his share of employment which may be unattractive to him and the bar.
2. EC 2-27 – Regardless of personal feelings, lawyer should not decline representation b/c a client or cause is unpopular or community reaction is adverse.
3. EC 2-28 – Personal preference of lawyer to avoid adversary alignment against judges, other lawyers, or influential community members does not justify rejection of tendered employment
4. EC 2-29 – When lawyer is appointed to undertake representation of someone unable to obtain counsel, he should not seek to be excused except for compelling reasons (which do NOT include repugnance of the subject matter, identity of person in the case, belief that the Δ in criminal proceeding is guilty, or belief of the lawyer on the merits in a civil case.)