Class 1: Regulation of Lawyers (Ch. 1) and Lawyer Liability (Ch. 2) Flashcards
Morals
Whether an act is right or wrong.
Values that we attribute t oa system of beliefs that help the individual define right versus wrong, good versus bad.
Ethics
The discipline concerned with what is morally good and bad, right and wrong. Any system or theory of moral values or principles.
Legal Ethics
Principles of conduct that members of the legal profession are expected to observe in the practice of law.
ABA Model Rules of Professional Responsibility
A set of rules purporting to provide the baseline standards of legal ethics and professional conduct for lawyers in the United States.
ABA Model Code of Judicial Conduct
Canon 1: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety
Canon 2: A judge shall perform the duties of judicial office impartially, competently, and diligently
Canon 3: A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office
Canon 4: A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.
Who is a Professional? What are the Characteristics of a Professional?
- Licensed
- Commitment to Serve Others
- Does Unusually Careful Job
- Adopts a Defined Role and Agrees to Comply with Standards of Conduct
Central Themes of Our Legal Ethics Course
- Conflicts of Interest
- Truthfulness
- Duties to Clients v. Duties to Justice System
- Personal and Professional Interests v. Fiduciary Obligations
- Self-Interest in Regulation of Lawyers
- Lawyers as Employees
- Changing Legal Profession
What are some things which are spurring change in the legal profession?
- Globalization
- Technology
- Increasingly Demanding Clients
Who Regulates Lawyers?
- Highest State Court
- Other State Courts
- Federal Courts
- State Bar Associations
- ABA and ALI
- Legislatures
- Administrative Agencies
- Prosecutors
- Malpractice Insurers
- Law Firms and Other Employers
- Clients
Which is the only state to have adopted the ABA Model Rules of Professional Conduct with the original numbering system and very few variations?
Delaware.
E. Norman Veasey, the Chief Justice of the Delaware Supreme Court, chaired the ABA Ethics 2000 Commission, which drafted the 2002 ABA Model Rules of Professional Conduct.
Most people view lawyers as dishonest. True or False?
True.
ABA Rule 8.4(c)
It is professional misconduct for a lawyer to . . .
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Two Competing Ways to Define a Lawyer’s Role in Society
- Client-centered (a client’s individual interest)
2. Public-centered (the public interest)
Will there be questions regarding prosecutorial ethics on the MPRE?
Yes. A disproportionate amount, apparently.
Will there be questions regarding judicial ethics on the MPRE?
Yes. Quite a few.
Who Regulates Lawyers: Highest court in each state:
Role? Examples of Regulatory Functions?
Have the inherent power to regulate lawyers (the inherent powers doctrine).
- Adopt codes of ethics
- Adopt court rules
- License lawyers
- Impose disciplinary sanctions on lawyers
Who Regulates Lawyers: Other state courts:
Role? Examples of Regulatory Functions?
Other state trial and appellate courts have the authority to regulate lawyers who appear before them.
- Adopt procedural rules and impose sanctions on violators
- Disqualify lawyers based on conflicts of interest
- Review and decide petitions for attorneys’ fees pursuant to fee-shifting statutes
Who Regulates Lawyers: State bar associations:
Role? Examples of Regulatory Functions?
States highest courts delegate some functions to bar associations. Membership in the state bar association is mandatory in some states (integrated or unified bars).
Who Regulates Lawyers: Lawyer disciplinary agencies:
Role? Examples of Regulatory Functions?
Often called “bar counsel’s offices.” Investigate and prosecute alleged misconduct by lawyers.
- Investigate and prosecute alleged violations of disciplinary rules
- Adjudicators impose sanctions such as disbarment, suspension, or reprimand
Who Regulates Lawyers: American Bar Association:
Role? Examples of Regulatory Functions?
A private nongovernmental organization that produces model ethical rules and ethical opinions.
- Formulate and solicit to state bars the ABA Model Rules of Professional Conduct
Who Regulates Lawyers: Federal courts:
Role? Examples of Regulatory Functions?
Have the authority to regulate lawyers who appear before them.
- Admit lawyers to practice before them
- Adopt procedural rules and ethical rules
- Impose sanctions for misconduct under their rules
- Disqualify lawyers based on conflicts of interest
- Review and decide petitions for fees pursuant to fee-shifting statutes
Who Regulates Lawyers: Legislatures:
Role? Examples of Regulatory Functions?
Despite the inherent powers doctrine, pass numerous statutes that govern lawyers. Also, legislative bodies may impose ethical or procedural rules on lawyers who appear before them.
Adopt:
- Criminal laws
- Consumer protection laws
- Securities laws
- Unauthorized practice laws
Who Regulates Lawyers: Administrative Agencies (federal and state):
Role? Examples of Regulatory Functions?
Allow lawyers to practice before them without a separate bar exam. Some impose their own ethics regulations on lawyers.
Who Regulates Lawyers: Prosecutors:
Role? Examples of Regulatory Functions?
Bring criminal charges against lawyers (among others) for crimes committed in or out of practice.
Who Regulates Lawyers: Malpractice insurers:
Role? Examples of Regulatory Functions?
Set conditions for obtaining insurance. These rules form a body of “private law” that governs lawyers who contract with those companies.
May require:
- Conflict checking system
- Review of opinion letters by senior people
- Tickler system (to warn of impending deadlines)
Who Regulates Lawyers: Law firms and other employers:
Role? Examples of Regulatory Functions?
Adopt internal rles and standards of practice that regulate lawyers employed by each such organization.
Who Regulates Lawyers: Clients (especially government agencies and large corporations):
Role? Examples of Regulatory Functions?
Impose rules of conduct on the lawyers they employ.
Some institutional clients
- Prohibit block billing
- Disallow billing for the time of a second or third lawyer at a deposition
- Use auditors to monitor the work of lawyers.
American Law Institute Restatement of the Law Governing Lawyers
A publication written by the ALI’s 3000 members (judges, lawyers, and law teachers) which summarizes the rules of law that govern lawyers.
Includes black-letter rules, which often summarize the rule followed in a majority of jurisdictions. Like any Restatement, ha comments and citations to statutes, court decisions, books, and articles
The Restatement’s list of fiduciary duties owed by lawyers to their clients
- Safeguarding the client’s confidences and property
- Avoiding impermissible conflicting interests
- Adequately informing the client
- Following instructions of the client
- Not employing adversely to the client powers arising from the client-lawyer relationship
Elements of a claim of breach of fiduciary duty
Plaintiff must prove that but for the lawyer’s misconduct, the plaintiff would have obtained a favorable judgment or settlement in the case in which the lawyer originally represented the client or that the plaintiff suffered some other compensable harm.
