3.02 Authorities and Duties Governing Lawyers

Question 1

Basic Tracks of Lawyer Regulation

Answer 1

1. Under the Authority of the Licensing Court and Jurisdictional Rules
2. Malpractice = Private Cause of Action
3. Criminal Sanctions and Various Other Methods

Question 2

1. Violation of Jurisdictional Rules = Misconduct

Answer 2

Misconduct To:-Violate or Attempt to Violate the Rules-Knowingly Assist or Induce Another to Violate-Commit a Criminal Act that Reflects Adversely-Engage in Dishonest Conduct-State or Imply Ability to Improperly Influence Government-Knowingly Assist a Judge or Judicial Officer to Conduct that Violates Applicable Codes of Conduct

Question 3

1. Criminal Conduct Misconduct

Answer 3

Commit a Criminal Act that Reflects Adversely On Lawyer Honesty; Trustworthiness; Fitness (Generally)”

Question 4

1. Dishonest Conduct Misconduct

Answer 4

Engage in Conduct Involving: Dishonest; Fraud; Deceit; Misrepresentation or Failure to Disclose

NOTE: Consider obligations to client confidentiality; Prejudicial to the Administration of Justice”

Question 5

1. Sanctions for Misconduct

Answer 5

Professionally answerable only for offenses that indicate a lack of those characteristics relevant to law practice.

• Criminal Contempt of Court for Misrepresentation of Credentials
• Professional Discipline of a Lawyer (Civil Action, NOT Double Jeopardy)
• Usually NOT the Loss of Attorney-Client Privilege

Question 6

Disbarment

Answer 6

Disbarment {Pattern of Neglect Causing Serious Harm

Question 7

Suspension

Answer 7

-Suspension for Fixed Period {Injury is Not Serious

Question 8

Reprimand

Answer 8

-Reprimand / Censure (Public) {Merely Negligent

Question 9

Admonition

Answer 9

-Admonition (Private) {Little or No Actual / Potential Injury

Question 10

Loss of Fee

Answer 10

-Loss of Legal Fees {Breach of Fiduciary Duty

Question 11

1. Reporting Misconduct

Answer 11

A lawyer who KNOWS another lawyer has committed a violation that raises a SUBSTANTIAL QUESTION of HONESTY, TRUSTWORTHINESS, or FITNESS as a lawyer SHALL INFORM

Substantial = Seriousness NOT Quantum of EvidenceDoes NOT Require the Disclosure of Confidential Client Information (Rule 1.6)
-Should, however, encourage client to disclose.

In Re Himmel (Ill. 1988) negotiating a settlement agreement > 2:1 with lawyer who defrauded client, but did not report other lawyers fraud = Suspension

Question 12

1. Jurisdiction of Discipline

Answer 12

Always Subject to Discipline of Jurisdiction Admitted To

Safe Harbor IF conduct conforms to rules of jurisdiction lawyer REASONABLY BELIEVES predominate effect will occur.

Subject Also to the Jurisdiction in Which the Conduct Occurred

Question 13

1. Choice of Law

Answer 13

Before a Tribunal = Rules of Jurisdiction in Which Tribunal Sits

Any Other Conduct = Rules of Jurisdiction Where Conduct Occurred OR Jurisdiction Where Predominate Effect of the Conduct Occurred So long as choice is REASONABLY related to predominate effect, parties may contract for choice of disciplinary law.

Question 14

2. Malpractice, Civil Case

Answer 14

Elements of a Civil Malpractice Case

• Legal Duty Owed by Lawyer
• STANDARD OF CARE: Failure of the Lawyer to Exercise the Skill and Knowledge an Ordinary Lawyer would Exercise in Similar Circumstances
• Damage Suffered as a RESULT of the Lawyers Conduct (Proximate CauseWhether Compliance with the Rules is a Breach is a Jurisdictional Question, but generally rules does not give rise to, but may be evidence of, a cause of action for malpractice.)

Question 15

2. Malpractice, Criminal Case

Answer 15

Elements of a Criminal Defendants Malpractice Case

-Same as Civil, but Must have the Conviction Set Aside Before a Complaint is Timely

Question 16

2. DUTY OF CARE, Standard of Care

Answer 16

STANDARD OF CARE: Failure of the Lawyer to Exercise the Skill and Knowledge an Ordinary Lawyer would Exercise in Similar CircumstancesMay have a duty to inform client of own malpractice

Question 17

2. DUTY OF CARE, Competent Representation

Answer 17

Legal knowledge, skill, thoroughness, and skill necessary for representationDiligence-Reasonable diligence and promptness-Whatever lawful and ethical measures are required

Question 18

2. DUTY OF CARE, Competent Representation Factors

Answer 18

Factors (Relative) =

• complexity and specialized nature,
• general experience, -training and experience in field,
• preparation and study (attention) able to give,
• whether referral is feasible

Question 19

2. Breach of Fiduciary Duty

Answer 19

Fee Forfeiture WITHOUT Harm

Question 20

2. Malpractice Remedies

Answer 20

• Tort Damages for Actual Damages
• Damages for Breach of Contract
• Damages for Breach of Fiduciary Duty (w/Harm)
• Fee Forfeiture for Clear and Serious Breach of Fiduciary Duty
• Punitive Damages-Statutory Remedies for Consumers (i.e. Debt Collection Statutes)

Question 21

2. Malpractice Waivers

Answer 21

SHALL NOT: Make Agreement to Limit Prospective Liability UNLESS Independently Rep.Settle Claim UNLESS advised in writing of desirability of seeking outside representation AND given reasonable opportunity to seek Independent Rep.

Question 22

Duties to Non-Clients

Answer 22

Prospective ClientsPersons to Whom the Lawyer Has Expressly Assumed a Duty
- May depend on whether lawyer as invited the party to rely.

Persons Lawyer Knows the Client Wanted Benefit
-Requires proof of intent, may require that proof in signed writing.

Beneficiaries that Lawyer Has Assisted a Fiduciary Client to Harm