Law Outlines Professional Responsibility Outline
Longer version of outline: includes PR rules, examples, and cases....
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Professional Responsibility Outline
Professor Crystal – Spring 2019
Introduction
1. Foundations of PR – Lawyer as:
Fiduciary
Fundamental duties:
Competence ABA 1.1,
ABA 1.3 for diligence
Communication ABA 1.4
Fairness ABA 1.5
Confidentiality ABA 1.6
Loyalty ABA 1.7
Safekeeping of Client Property ABA 1.15
Officer of the Court
Adversarial system: (1) neutral decisionmaker, (2) competent advocates zealously representing clients, (3) fair rules of procedure
Duties to Court and Adversaries:
Prohibition on making frivolous claims ABA 3.1
Duty to reveal client perjury ABA 3.3(a)(3)
Prohibition on communication with represented parties ABA 4.2
Policy Reasons for Limitations:
Excessive zeal on behalf of client can undermine adversarial system
Certain 3P/societal interests can outweigh client interests
Own Person
COI, legal fees, marketing of services
2. Tension in Lawyers’ Obligations (In Re Pautler)
Prosecutor pretends to be PD on phone.
Issues + Holdings:
Pautler violated MRPC 8.4(c) – “conduct involving dishonest, fraud, deceit or misrepresentation”
Violated MRPC 4.3 – advice to unrepresented person whose interest may be adverse to lawyer’s own client.
***Pautler could not have asked a PO to impersonate PD 8.4(a) – cannot do through the acts of another which lawyer could not do himself.
Tensions:
Pautler emergency situation, pressure of situation, duty to prevent future harm, conflicting obligations as peace officer, misrepresentation permissible in some cases
Court/Judges concerned about integrity and reputation of profession (recent substantial criticism), removed from pressure of situation (hindsight 20/20), worries that exceptions to rules may promote abuse of rules
3. Sources of Professional Obligations
1. PR Rules and Standards:
Rules of Professional Conduct
Ethics Advisory Opinions
Interpretations of the Rules – persuasive but NOT binding.
ABA Committee on Ethics and PR
NYSBEAC and NYCBC
Standards of Practice
Published by organizations in particular areas of practice
Persuasive
Deal with specific problems in particular areas of practice
Institutional Norms
2. Law Governing Lawyers
(i) Court decisions, sometimes rely on PR rules
Disciplinary, malpractice, disqualification, sanctions, FRCP 11, criminal prosecutions
(ii) Statutory Law
(iii) Admin Rules and Regs (ex. SOX)
(iv) Court rules (Rest. v. Model Rules)
3. Relationship Btw PR Rules and Standards & Governing Lawyers
(i) Sometimes law overrides professional standards (ex. State statutes limiting contingency fees)
(ii) Sometimes law deals with substantive issues not covered by rules/standards (ex. Confidentiality, ACP)
(iii) Sometimes law supplements rules or standards (ex. improper questioning)
(iv) The law often deals with the remedy and not standards (ex. IAC)
4. Developing Philosophies of Lawyering and Moral Accountability
(i) Client-centered philosophy/neutral partnership
Principle of professionalism: lawyers should do everything possible to advance client interests; only refuse to act if clear violation of PR rules.
Principle of non-accountability: lawyers not morally responsible for actions taken in their roles on behalf of clients
**Possibly allows for justification of immoral actions
(ii) Philosophy of institutional values
Values that express social/institutional role of lawyer
Wendel: lawyer is quasi-public official who has obligation to respect law (not override for personal interest/use as instrumentality)
(iii) Rule of Law
(iv) Philosophy of self interest/defensive lawyering
Maximize own interest: money, reputation, avoidance of risk (discipline)
5. Morality
(i) Freedman-Tigar
Both agree morally accountable for choice of clients but differ on whether accountability requires public justification
Freedman: lawyers morally responsible for decision to undertake representation
Tigar: burden would make it harder for clients to obtain representatives, possible violation of ACP
(ii) No moral responsibility in choosing which cases to take or fore the outcome of case (Standard Conception)
(iii) Moral responsibility for choice of area of practice
(iv) Responsibility to engage in moral dialogue with client during representation, but client maintains right to make decision
(v) Lawyers may remove from representation if they oppose client on moral grounds
(vi) Lawyer who decides to represent client, despite strong moral obligations, is not morally accountable (MR 2.1, 1.16(b)(4), 1.2(b))
(vii) Obligation to be morally active in representation of clients
(viii) Lawyer has moral obligation to preserve legal institutions (takes moral obligation from practice to institutional dimension)
Duty of Competence (ABA 1.1)
Occasional sanctions for lack of competence (Sandstrom)
Togstad: violations can lead to malpractice liability
Holding: Lawyers can be liable for negligence in turning down cases.
Negligence in giving advice that Togstad did not have a cause of action without adequate factual investigation
Negligence in failing to inform of upcoming expiration of SOL
Facts: Lawyer told Togstad that he “did not think we had a legal case, however, will discuss with his partner”, heard nothing and assumed there was no cause of action.
What should lawyer have done?/Lessons:
Recommend they talk to another attorney
Do not give specific dates but say that the SOL is ticking
Don’t explain exactly why can’t get into the case (that speaks to the merits of the case.
Legal Malpractice Action:
Several COAs: (i) negligence, (ii) breach of fiduciary duty, (iii) fraud, (iv) misrepresentation, (v) nondisclosure
Elements of negligence: (i) duty, (ii) breach, (iii) causation, (iv) harm/dmgs
Expert testimony required
Proof of “cases within a case” to establish causation
Defense: Judgmental immunity lawyers not liable/required to predict unsettled areas of law.
*Courts do not recognize malpractice claims in criminal cases, only IAC.
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Longer version of outline: includes PR rules, examples, and cases....
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