Professional Responsibility Outline

Professional Responsibility

UVA Law, Spring 2015

• Strategies

  • If there was a breach, or close to a breach, what could have been done to prevent?

  • What other facts or laws do we need to know?

  • Possible remedies?

  • How has this rule evolved?

  • What are the rule’s purposes? How does it influence the profession as viewed from within and from outside?

• History and General Concepts

  • Four ways of viewing this class:

    • Law Governing Lawyers: vocational view that we need separate rules for lawyers

    • Law and Ethics of Lawyering: (1) regulation of the profession, and (2) ethics of the profession

      • A moral obligation that emanates from being a lawyer

    • Professional Responsibility: not about regulation/control of lawyers, but about a specialized duty

    • Legal Ethics: not moral conduct, but a generic title for the class

  • Solicitors vs. Barristers: English Experience

    • Solicitors provide legal guidance

    • Barristers are trial lawyers

      • Comes with more prestige, related to social status in england (treated like squires/esquires)

      • Source of the officers of the court conception

        • Couldn’t sue for fees

        • Duty first to tribunal/process, then to client

        • Litigation as the core of the practice of law

      • Source of protectionism, prestige and exclusivity of the profession--why we have bars

    • US. Different types of lawyers - should the same rules apply?

      • (1) Advocate

      • (2) Legal advisor

      • (3) Document Drafter

      • (4) Patent practitioner

      • Concept of unitary system: one bar, lawyer is sole job and there shouldn’t be distinctions/divisions in the profession

  • U.S. Experience: Bar Movement and Lawyers Early On

    • 1835 Alexis De Tocqueville observes that the real aristocrats in the US are lawyers, yet the system required them to earn their elite status based on skill and knowledge

    • Bar Association Movement: Informal standards as well as court interventions were not seen as sufficient, this lead to the movement

      • Idea was to join a prestigious bar association to clean up the image

    • Examples:

      • Alabama Code of Ethics (1887)

      • ABA Canons of Ethics (1908) - tried to get all courts to accept it

      • ABA Code of Professional Responsibility (1969)

        • Still used by California

      • ABA Model Rules of Professional Responsibility (1983)

        • Adopted, with slight variations, by nearly all states

    • Most bar standards were historically set by legislatures, but courts began to reclaim the power in the 1930s

      • Today there is uncertainty as to who has the ultimate authority

      • State v. Cannon (Wisconsin 1934)

        • Holding: State Supreme Court, and not the legislature, has the power to sanction attorneys

  • Modern role of state bars

    • Right and obligation to discipline its own membership

    • Control punishment at all stages before final appeal, which goes to state supreme courts

    • Bar integration: joining the state bar is mandatory upon admission to the bar

      • Gives bars broad authority to discipline lawyers

  • Image of the Profession

    • Profession polices itself to avoid further growth of negative public perceptions of lawyers

    • Two major images and sources of legal ethics

      • (1) Agency Model: Lawyers as highly skilled service providers who function in a market economy and within the adversary system

        • Lawyering as agency and fiduciary duty

        • Code of conduct thus reflects rules of improper behavior/agency law/duties

        • Autonomy (see Rule 1.2)

      • (2) Officer of the Court Model: Lawyers as professionals who have a duty to the profession and to the public - public trust

        • Articulates the profession’s image of itself

        • Notion of the quasi public official in relation to the court

        • Necessary because it’s the law, as opposed to barbers or physicians

        • Swearing of an oath upon admission to the bar

        • High emphasis on image to maintain trust of clients/public

        • Can be taken as paternalistic model as well

      • Possible Conflict:

        • Client Direction (see Rule 1.2):

          • Agency Model: at discretion of client

          • Officer of the Court Model: do what’s best for your client, but not necessarily what they want (Brandeis likes this)

        • Medical Profession has similar conflicts

  • Morality

    • Possible to be disbarred for moral violations that have little to do with the practice of law

• Jurisdictional Elements

  • You can only be sanctioned by a bar you are a member of

  • Bars will sanction lawyers for violating the rules of other states when they practice in those other states

  • If you comply with the rules of the state you are practicing in (even if they don’t match up with the rules of the state bar you’re a member of), you’re fine

  • In general, the more restrictive bar’s rules apply

• Client-Lawyer Relationship

  • Rule 1.1 Competence

    • Know your limits: may take on new practice areas, but may not go leaps and bounds beyond your level of experience and qualification

  • Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

    • Blanton v. Womancare (Cal. 1985) (p. 44) - Agency Model

      • Facts: attorney gives up right to trial by jury, chance to pick arbitrator (agreed to arbitrator who was defense attorney), and acquiesces to low cap on recovery all w/o client’s permission

      • Rule: Malpractice: lawyer was both incompetent and made key decisions about representation without consulting the client.

      • Policy: defense attorney did nothing wrong - he could have asked the lawyer to seek agreement from client, but no duty to do so

      • Policy: can sue to reopen case, or for malpractice

        • Proper case to vacate arbitration

    • The Holland Case (p. 50) Duty to the Court Model

      • Facts: client found guilty of murder, wanted attorney to push for death penalty because life w/o smoking was not worth living

        • Client bummed a ride, then forces to drive at gunpoint, driver tried to wrestle gun from Holland, and Holland shoots dead

      • Ruling: disqualified the lawyer and appointed one who would

        • Lawyers owe greater duty to the bar (duty to court sets boundaries for duty to client)

      • Constitutional element: 6th and 8th amendments require appeals before execution; client does not have the power to waive these

      • ...

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