Professional Responsibility Outline 2022[46]

Professional Responsibility Outline 2022 Intro 21-63 The Foundations of Professional Responsibility  Three ideas that are central to the lawyer’s role o The lawyer as fiduciary o Lawyer as an officer of the court functioning in an adversarial system o The lawyer as an individual with personal values and interests The lawyer as fiduciary  Fiduciaries have special obligations to care for and to protect the interests of beneficiaries or clients  Owe clients three duties o Duty of competence  Lawyers who violate the duty of competence not only commit an ethical transgression but also can be held liable to their clients for damages o Duty of loyalty o Duty of confidentiality  Ethical obligation to maintain confidentiality of information  Shall not reveal information relating to representation of a client gives informed consent Lawyer as an officer of the court functioning in an adversarial system of justice  Characterized by o A neutral decisionmaker o Competent advocates zealously presenting the positions of each of the interested parties, o Rules of procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker Lawyer as a person with personal financial interest  Rules contain some regulation of fee agreements and business transactions between lawyers and clients  Rules barely hint at the relationship between the business pressure of practice and the personal lives of lawyers In re Pautler I: Whether a prosecutor may deceive an unrepresented person by impersonating public defender R: it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation A: Here, DA was involved in a case where D (Neal) requested his previous atty and a PD. Paulter (DA) offered to impersonate a PD and made promises to Neal. Never corrected his misrepresentation. Actually PD argues that this made it difficult to gain the trust of his client. Neal eventually dismissed his defense counsel. Court rules there was no imminent public harm and there were feasible alternatives. C: even a noble motive does not warrant departure from the rules of professional conduct

Notes and Questions: 1. Probs viewed his most important obligation as an officer of the court. Wanted to pretend to give Neal what he wanted while ending the issues with Neal altogether. 2. The judges considered his most important obligation to be to the client. Obligation of fiduciaries. Court believed that he violated the client’s rights. Rule Review: 1. I don’t think it would have been proper. This wasn’t an imminent danger situation. 2. No, she wasn’t acting in her role as an attorney. 3. Yes, he’d be subject to discipline for violating the Rules because this was misrepresentation and violated the duty of confidentiality. 4. No? He’s an officer of the court and has an obligation to clients Resolving Tensions in the lawyer’s role:  Model Rules are grouped under eight sections o Client-lawyer relationship o Counselor o Advocate o Transactions with persons other than clients o Law firms and associations o Public service o Information about legal services o Maintaining the integrity of the profession Law governing lawyers  Rules of prof conduct become law when adopted by a court  Violation of the rules of professional conduct or provisions of general law exposes lawyers to serious legal consequences, such as loss of professional license, civil liability, and even criminal prosecution Client-centered philosophy  Lawyers must take any action that will advance the client’s interest so long as the action does not clearly violate a rule of ethics or other law Ideology of advocacy:  Neutrality  Partisanship Philosophy of morality  Lawyers are morally accountable for the actions that they take on behalf of their clients and must be prepared to defend the morality of what they do  Difficulties o What source of moral values does a lawyer use? o How does a lawyer proceed when the lawyer’s moral values differ from those of the client o Do they have an obligation to disclose to their clients the use of this approach so that clients can make informed decision about choice of counsel

Philosophy of institutional values  Norms expressed in an institutional form are likely to be seen as more objective and justified than moral values Professor Simon’s Approach  Lawyer should assess the relative merit of the client’s claims and goals in relation to other clients that the lawyer might serve  Assess the internal merit of their clients claims Model Rule 2.1  Lawyers are not limited to giving legal advice but may also refer to “moral, economic, social and political factors” Problem 1-1 Comparing Philosophies of Lawyering  How would you compare the philosophies of lawyering expressed by these lawyers? o David Boies  You have a duty of loyalty  If you start to value how you are going to look to the media, as opposed to how your client will look, then you should find a new profession  Can choose what clients to represent o Does not have the choice of HOW to represent a client. o Michael Cohen  Felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass  Blind loyalty to Donald Trump  Three years in prison (8 counts involving fraud and campaign finance violations)  Disbarred o Monroe Freedman  Model Rule 1.2 and 2.1  Subject to paragraphs c and d, a lawyer shall abide by a clients decisions concern the objectives of representation and, as required by rule 1.4  Lawyer may generally refuge to represent a client whose character or cause the lawyer finds repugnant o Michael Tigar  Client is entitled to a fair trial where evidence can be tested  The method of judging whether such a charge is true should be above reproach o Freedman (Again)  The amoral lawyer  No moral responsibility whatsoever for representing a particular client  Moral control of the client  Lawyer can impose his moral views on the client by controlling both the goals pursued and the means used during the representation  Choice of client as a moral decision

 Also insists that the lawyer’s role is a moral one  Client is entitled to make the important decisions about the client’s goals and the lawful means used to pursue those goals  Which philosophy is more persuasive to you and why? o The materials show that lawyers could take moral values into account in their practices in various ways. Consider the following ways in which moral values could be taken into account int the practice of law:  Not at all  Choice of are of practice  Acceptance or representation of particular clients or cases o I agree more with the amoral lawyer. I feel like everyone is entitled to representation (except extenuating circumstances) and lawyers should take on that responsibility to provide the best defense possible. They/we have a duty to the client to do whatever we can to provide a good defense. Problem 1-4  Reporting to disciplinary authorities misconduct by another lawyer o Lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security other pecuniary interest adverse to a client unless:  Terms are fair and reasonable  Client is advised in writing…  I do not think there is sufficient knowledge of misconduct. I would talk to Mr. Wilson and see how this agreement came about, learn the details of the arrangement, and potentially talk to Mr. Sylvia. If this doesn’t harm the client and they consented freely, without any misrepresentation on behalf of the attorney, and he has no interest in reporting Mr. Wilson, then I don’t think I would report. I would have to be absolutely sure that the agreement is fair to the client and they have no issue whatsoever in lending the money to the attorney. Personally, it feels like a slippery slope and I would advise against it. I would still keep up with the transaction and if at any point it felt like the attorney was taking advantage then I would absolutely report right away. I would inform both parties that I would need updates on payments and advise the client to notify me immediately if there was a breach at any point. Attorney-Client Relationship 65-91 5.25 The Attorney-Client Relationship  Three ways in which an attorney-client relationship is formed o Person manifests to a lawyer the person’s intent that the lawyer provide legal service to the person and the lawyer manifests to the person consent to do so. (Express attorney-client relationship) o The person manifests intent to the lawyer that the lawyer provide legal services to the person and the lawyer fails to manifest lack of consent

when the lawyer knows or reasonably should know that the person is reasonably relying on the lawyer to provide legal services. (Implied attorney-client relationship) o An attorney-client relationship can be formed if a tribunal appoints a lawyer to provide legal services (attorney-client relationship by appointment)  All that is necessary is a reasonable belief on the part of the would be client that he or she was being represented by the attorney Problem 2.1 Duty of Competence  Model Rules 1.1, 1.3 Model rule 1.1 states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation Model rules 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client. The comment mentions that “a lawyer is not bound, however, to press for every advantage that might be realized for a client. In support of a motion to set aside Donald’s conviction because of ineffective assistance:  Donald received inadequate counsel from his attorney, Thomas Long. He failed to locate or contact the one witness who would have corroborated Donald’s story. He also didn’t inform his client of any updates until the date of the trial. He also did not call a witness and gave a short closing argument. He also refused to let his client take the stand. In opposition to the motion:  Attorney Thomas Long did his due diligence to contact the friend his client was at the bar with, although he was not able to contact him. Under 1.3, he is obligated to be thorough but he does not have to press for every advantage that might be realized for a client. He attempted to get a plea deal and the prosecution rejected it. Long cannot be obligated to obtain a plea deal when one is not offered. Also, a short closing argument does not mean an ineffective one. If the motion is successful, I do not believe Donald would successfully sue Long for malpractice because there are not clear signs of neglect, or anything that explicitly shows the he dropped the ball. Problem 2.3  Contingent fees, expenses, and sharing fees  Rules 1.5, 1.8e and f, 1.15,3.4 A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation. I would advise that the 45% legal fee is a normal contingency fee. The fee for the expert witness is a norm, depending on the price of their time and as long as it isn’t contingent upon the success of the case. The only thing that would seem maybe out of line would be the expenses advanced by Atlee. What she could do is report the attorney. Courts have the power to reduce the amount of fees if found to be