Professional ResponsibilityLaw 115

Wed., Aug. 29

Office HoursM, T, Th 2-3 or by appt.

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Today•My general approach to material•Introduction to sources of law of lawyering– Not just disciplinary law

•Odd character of law of lawyering – as expressed in Spaulding v. Zimmerman•Admission to bar – including character and fitness requirements•General standard for professional discipline– Including means by which non-disciplinary law is

incorporated into disciplinary law

I. my general approach to the course

This is a course on law (in particular, the law of lawyering),

not ethics

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II.the sources of the law of lawyering

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• Disciplinary law–Source: usually state supreme court–Governs activities in and beyond

practicing before court–E.g. Virginia Rules of Professional

Conduct

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• Procedural law–Source: courts or legislature–Governs activities before court–E.g. Rule 11, disqualification

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• Mixed case: Federal court regulation of those practicing before federal bar–Governs activities in and beyond practicing

before federal court–BUT sanction is usually only dismissal from

federal bar

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• Law having source in state police power– Source: state legislature or state courts–Governs activities in and beyond practicing

before state court– Includes both civil and criminal law– E.g. malpractice

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• Federal law having source in commerce clause– E.g. mail fraud, RICO, Sarbanes-Oxley

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• Means by which sanctions occur

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State Disciplinary Law• Complaint by client or other lawyer to

disciplinary authorities (usually state bar)• Screened for merit• Hearing before grievance committee• Makes recommendation• Review by reviewing authority in state bar• Review by highest court of appeals in state• Sanctions– Disbarment– suspension from practice– Censure– usually not fines (although can forfeit fee)

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Exception: rules for conflict of interest

• usually disqualification motions in litigation• BUT violation of conflict of interest rules can

result in professional discipline

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State/Federal Criminal law

• criminal trial and penalties • NOTE: some crimes are grounds for

disciplinary proceedings– even if unrelated to activity of practicing law– eg perjury

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State/Federal Civil Law

• civil trial and damages• NOTE: some torts (involving fraud or

dishonesty) can result in professional discipline

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State/Federal Procedural Law

• contempt sanctions or other forms of discipline in the context of litigation

• Penalties:– Disqualification– Rule 11 sanctions– Lose of case

• NOTE: some violations of procedural law can result in professional discipline

ABA Models of Disciplinary Law

Canons of Ethics (1908)

Model Code of Professional Responsibility (1970)

ECsDRs

Model Rules of Professional Conduct (1982)

relationship between disciplinary and “other” law

Assume attorney violates her duty of confidentiality to her client

Can the client sue civilly for damages?

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• Model Rules, Preamble [20] • Violation of a Rule should not itself give rise to

a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. … Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

Attorney engages in income tax evasion

Can that be the grounds for disciplinary proceedings?

III.the odd character of the law of

lawyering

Spaulding v. Zimmerman (Minn SCt 1962)

Trial Court: “To hold that the concealment was not of such character as to result in an unconscionable advantage over plaintiff's ignorance or mistake, would be to penalize innocence and incompetence and reward less than full performance of an officer of the Court's duty to make full disclosure to the Court when applying for approval in minor settlement proceedings.”

While no canon of ethics or legal obligation may have required them to inform plaintiff or his counsel with respect thereto, or to advise the court therein, it did become obvious to them at the time, that the settlement then made did not contemplate or take into consideration the disability described. This fact opened the way for the court to later exercise its discretion in vacating the settlement and under the circumstances described…

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IV.Admission to Bar

• Law school (usually)• Pass bar exam (usually)• Character and fitness requirements– Model Rules do not give standards

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• Character and Fitness–General test: predict future violations

of discipinary rules

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• pattern of violation of laws– Frasher v. Bd of Law Examiners (W. Va

1991) – 3 duis and 24 speeding tickets

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• single infraction revealing dishonesty or abuse of position of trust– mishandling moot court funds• In re Mustafa (D.C. App. 1993)

– sexual relations as 23 year old teacher with 14 year old student• In re Hinson-Lyles (La. 2003)

need not be criminal or even illegal- eg plagiarism

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• Neglect of financial responsibilities–E.g. defaulting on student loans

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• Failure to disclose requested information in application!

• Radtke v. Board of Bar Examiners, 601 N.W.2d 642 (Wis.1999)

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• Now you are a lawyer…

V.Standards for Professional

Discipline

you put a letter in the mail disclosing confidential material of a

client, but it is unstamped and is returned - is that a disciplinary

violation?

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MR 8.4: It is professional misconduct for a lawyer to:

(a)violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another

Transactions With Persons Other Than ClientsRule 4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:(1) make a false statement of fact

or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal

by the lawyer;

you are acquitted of income tax evasion but you probably did do it -

is that a disciplinary violation?

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8.4 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects

- Does not say conviction- Does not say in the practice of law- Look to standards for character and fitness

- Pattern, dishonesty, abuse of position of trust, neglect of financial responsibility

you plagiarize from a 100-year old speech that is no longer protected by copyright - is that a disciplinary violation even though no other law

was violated?

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8.4(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

- Need not be illegal- Need not be in practice of law

lawyer poses as former high school classmate and posts online message, visible publicly, suggesting (the lawyer believes as a practical joke) that classmate, now a high school teacher, is having sex with minors

In re Carpenter(Ore. 2004)

you find out from a client that a plaintiff in another case had used fraud to win an undeserved verdict of $1m

you offer to sell in information to the losing defendant for $200K

Florida Bar v Collee (Fla. 1988)

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8.4(d) engage in conduct that is prejudicial to the administration of justice

- Need not be illegal

- prosecutor brings case against defendant, defendant gives notice that he intends to sue arresting officers for civil right violations

- prosecutor then cuts deal where he drops charges if the defendant promises not to sue

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8.4(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.