LAWYER LIABILITY Flashcards
rules
LAWYER LIABILITY
o R.1.2(d) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
o R.8.3 REPORTING PROFESSIONAL MISCONDUCT
o R.8.4 MISCONDUCT
o R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
o R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
o R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
are lawyers who are subject to state bar disciplinary proceedings entitled to the same protections as they are in criminal proceedings?
LAWYER LIABILITY
Yes, lawyers are entitled to certain constitutional protections, even though proceedings are not criminal prosecutions
EXAMPLES = right (without penalty) to assert 5th Amendment’s privilege against self-incrimination and the right to confront and cross-exam witnesses
sources of lawyer’s duty to client
LAWYER LIABILITY
- Model Rules of Professional Conduct
- laws of contract
- laws of agency
- laws of fiduciary relationships
2 takeaways for disciplinary authority
LAWYER LIABILITY
- Each and every jurisdiction in which a lawyer is licensed = may discipline lawyer for same conduct
(EXAMPLE = lawyer is licensed in VA and TN; lawyer found guilty of perjury in New York; TN and VA may discipline lawyer) - a lawyer may also be disciplined by a jurisdiction in which she is not licensed if she provides or offers to provide legal services in that jurisdiction
R.8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW
choice of law in LITIGATION
LAWYER LIABILITY
Law of the state in which court sits = governs
R.8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW
choice of law NON-LITIGATION matters
LAWYER LIABILITY
A. rules of jurisdiction in which the conduct occurred = governs OR
B. if the predominant effect of the conduct is in a different jurisdiction = that jurisdiction’s rules govern UNLESS lawyer’s conduct conforms to the laws of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur
EXAMPLE =
- A is licensed to practice in State 1.
- State 1’s rules do not prohibit in-person solicitation of clients in personal injury cases.
- Client lives in State 2, but was injured in State 1.
- State 2 prohibits in-person solicitation of clients in personal injury cases.
- A telephones Client offering to represent Client in a personal injury suit in State 1.
- A reasonably believes that the rules of State 1 govern his conduct.
- Even if the predominant effect of A’s conduct is in State 2, A should not be subject to discipline because he reasonably believed that the rules of State 1 governed his conduct.
R.8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW
duty to report professional misconduct
MISCONDUCT
A lawyer
- who KNOWS that
- another lawyer or judge has committed a violation of the Rules or the law
- that raises a SUBSTANTIAL question as to the lawyer’s or judge’s honesty, trustworthiness, or fitness
= must report the lawyer or judge to appropriate authority (e.g., state bar)
R.8.3 REPORTING PROFESSIONAL MISCONDUCT AKA THE RAT RULE
requisite knowledge to report other lawyer’s misconduct under R.8.3
MISCONDUCT
“knows” =defined in R.1.0(f)
- actual knowledge
- must be more than suspicion AKA more likely than not
- may be inferred from circumstances
R.8.3 REPORTING PROFESSIONAL MISCONDUCT
discretion to report other lawyer’s misconduct under R.8.3
MISCONDUCT
“shall” =
- reporting is mandatory AKA lawyer does not have discretion not to report
- can be sanctioned for failure to report
- lawyer has discretion as to WHEN to report
R.8.3 REPORTING PROFESSIONAL MISCONDUCT
timing of reporting other lawyer’s misconduct under R.8.3
MISCONDUCT
Lawyer has discretion as to when to report
limit on reporting obligation under R.8.3 REPORTING PROFESSIONAL MISCONDUCT
MISCONDUCT
- Limits obligation to report to offense that self-regulating profession must vigorously endeavor to prevent
- “substantial” = refers to seriousness of the possible offense (NOT to the quantum of evidence of which lawyer is aware)
CMT 3, R.8.3 REPORTING PROFESSIONAL CONDUCT
2 exceptions to duty to report professional misconduct
MISCONDUCT
- no duty to report when the information is protected by Rule 1.6 (which is often the case) UNLESS client consents to disclosure
(NOTE: the lawyer should encourage the client to consent when the disclosure will not prejudice the client) - no duty to report if the lawyer learned the information as part of an approved lawyers assistance program
(EXAMPLE: state bar approved substance abuse counseling for lawyers)
threats to report
MISCONDUCT
lawyer may not threaten to report a disciplinary matter to obtain an advantage in litigation
R.8.3 REPORTING PROFESSIONAL MISCONDUCT
can lawyer be disciplined for personal activities?
MISCONDUCT
lawyer may be disciplined for activities unrelated to representation of client
BUT only for offenses that indicate lack of those characteristics relevant to law practice
CMT 2, R.8.4 MISCONDUCT
2 offenses that indicate lack of characteristics relevant to law practice
MISCONDUCT
- Offenses involving
- violence
- dishonesty
- breach of trust
- serious interference with the administration of justice - Pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation
CMT 2, R.8.4 MISCONDUCT
7 types of professional misconduct
MISCONDUCT
- violating, attempting to violate, or using another person to violate the Rules (i.e., a violation of the Rules is, in fact, a double violation)
- a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice (e.g., tax evasion, but not a speeding ticket, unless the lawyer has dozens of speeding tickets).
- dishonesty, fraud, etc. (e.g., filing a false insurance claim)
- conduct prejudicial to administration of justice (e.g., blatant discrimination in connection with the representation of a client)
- imply an ability to improperly influence a government official or imply an ability to achieve results by means that violate the Rules or other law
- knowingly assist a judge in violating Rules
- engage in conduct lawyer knows or reasonably should know is harassment/discrimination on basis of race, sex, religion, national original, ethnicity, disability, age, sexual orientation, gender identity, marital status, socioeconomic status in conduct relation to the practice of law (BUT doesn’t limit ability of lawyer to accept/decline/withdraw from representation in accordance with R.1.6)
R.8.4 MISCONDUCT
example/non-example of a criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness to practice
MISCONDUCT
tax evasion = YES
speeding ticket = NO (unless the lawyer has dozens of speeding tickets)
R.8.4 MISCONDUCT
exception to discipline for criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness to practice
MISCONDUCT
GOOD FAITH EXCEPTION = a lawyer does not violate this rule if the lawyer in good faith believes that no valid obligation exists
EXAMPLE =
- L is involved in a peace protest at city hall.
- The police ask the protesters to leave.
- L believes that the First Amendment protects his right to picket on government sidewalks.
- The police arrest L and he is convicted of disorderly conduct.
- If L in good faith believed that he was legally entitled to picket on the sidewalk, L would not be subject to discipline (even if L was mistaken as to the law).
R.8.4 MISCONDUCT
2 examples of implying an ability to improperly influence a government official
MISCONDUCT
telling client
- that the judge can be bribed
- that the mayor “owes you a favor” in exchange for a political contribution
R.8.4 MISCONDUCT
example of knowingly assisting judge in violating Rules
MISCONDUCT
lawyer and judge engage in improper ex parte communications
R.8.4 MISCONDUCT
effect of prohibition on discrimination on R.1.6
MISCONDUCT
doesn’t limit ability of lawyer to accept/decline/withdraw from representation in accordance with R.1.6 CONFIDENTIALITY OF INFORMATION
R.8.4 MISCONDUCT
discipline for misconduct of others
MISCONDUCT
RULE = lawyer can be disciplined for a client’s (or ANY PERSON’s) conduct IF the lawyer assisted or induced
R.1.2(d) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
2 exemptions for R.8.4(g)’s prohibition on discriminatory conduct
MISCONDUCT
- Preemptory challenges in jury trials
2. Promoting diversity
common forms of discipline
MISCONDUCT
- Disbarment
- Suspension
- Public censure
- Admonition
Application of R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Applies to
- Partners
- Supervising lawyers
- Others with comparable managerial authority
3 duties in R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
R.5.1(a) = duty to establish internal systems
R.5.1(b) = duty of supervision
R.5.1(c) = liability for another’s misconduct
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
R.5.1(a) duty to establish internal systems – application
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Applies to lawyers with managerial authority
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
R.5.1(a) duty to establish internal systems – requirements
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Requires managerial lawyer to establish internal policies and procedures to ensure that all lawyers conform to Rules of Professional Conduct
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
examples of R.5.1(a) internal policies/procedures
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
EXAMPLES (CMT 2) = policies/procedures designed to
- Detect and resolve conflicts of interest
- Identify dates by which actions must be taken in pending matters
- Account for client funds and property
- Ensure that inexperienced lawyers are properly supervised
- Allows for variation on system’s sophistication (CMT 3)
- Can depend on firm’s structure, nature of practice, resources, etc.
R.5.1 REPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
R.5.1(b) duty of supervision – requirement
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Requires lawyer supervising another lawyer to make reasonable efforts to prevent that lawyer from violating these rules
NOTE = professional misconduct of lawyer under supervision could still be a violation of (b) by the supervisory lawyer, even if there was not direction/ratification/knowledge to satisfy (c) (CMT 6)
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
R.5.1(c) liability for another’s misconduct – rule
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Lawyer can be responsible for another’s violation when lawyer
1. directs another to engage in violative conduct OR knows about it AND ratifies it
OR
2. is a partner/comparable managerial authority in firm
- OR has direct supervisory authority over the other lawyer
- AND knows of conduct at a time when consequences can be avoided or mitigated
- BUT fails to take reasonable remedial action
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
3 types of liable conduct under R.5.1(c)
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
- Direction
- Ratification
- Knowledge
R.5.1 REPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
civil/criminal liability for another’s misconduct
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
- R.5.1 and R.8.4(a) = create a lawyer’s DISCIPLINARY liability for the conduct of a partner, associate or subordinate
- Whether a lawyer may be liable civilly or criminally for another lawyer’s conduct = a question of law beyond the scope of these Rules
SEE R.5.1, CMT 7
R.5.1(c) liability for another’s misconduct – application
LAWYER’S RESPONSIBILITY FOR ETHICAL MISCONDUCT BY SUPERIORS/COLLEAGUES
Applies to associates, not just partner
R.5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
R.5.2(a) liability for acting at direction of another lawyer
RESPONSIBILITY OF A SUBORDINATE LAWYER
Lawyer is bound by the Rules notwithstanding that a lawyer acted at direction of another lawyer
R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
R.5.2(b) legal protections for subordinate lawyer
RESPONSIBILITY OF A SUBORDINATE LAWYER
Subordinate lawyer doesn’t violate Rules IF
- lawyer acts in accordance
- with a supervisor’s reasonable resolution
- of an arguable question of professional duty
R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
R.5.2(b) liability when conduct direct by supervisory lawyer is clear violation
RESPONSIBILITY OF A SUBORDINATE LAWYER
Subordinate lawyer is liable = no defense that “my partner made me do it”
R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
R.5.2(b) duty of supervisory and subordinate lawyers
RESPONSIBILITY OF A SUBORDINATE LAWYER
If question can reasonably be answered only one way
= duty of both lawyers is clear
= they are equally responsible for fulfilling that role
R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
R.5.2(b) duty of subordinate lawyers
RESPONSIBILITY OF A SUBORDINATE LAWYER
Lawyer needs to assess whether supervisor’s instruction is reasonable resolution of an arguable question of professional duty
AKA should
- Do research
- Seek advice from more experience lawyers
R.5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
comparison of R.5.3 RESPONSIBILITIES REGARDING NONLAWYERS to R.5.1 and R.5.2
RESPONSIBILITY OF A SUBORDINATE LAWYER
Language largely mirrors R.5.1 and R.5.2
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE – 2 key takeaways
RESPONSIBILITY OF A SUBORDINATE LAWYER
- Major principle = lawyer can be subject to discipline based on the conduct of her secretary, paralegal, summer intern, or other nonlawyer employees
- Purpose = to prevent a lawyer from avoiding discipline by saying “I didn’t violate the rules, my secretary did”
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
R.5.3(a) requirement for managerial lawyers
RESPONSIBILITY OF A SUBORDINATE LAWYER
= requires that managerial lawyers establish internal measures to ensure that nonlawyer’s conduct is compatible with Rules
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
R.5.3(b) duty of supervisory lawyers
RESPONSIBILITY OF A SUBORDINATE LAWYER
= imposes duty on lawyers with supervisory power over nonlawyer to ensure nonlawyer’s conduct is compatible with Rules
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
R.5.3(c) responsibility for nonlawyer violations
RESPONSIBILITY OF A SUBORDINATE LAWYER
R.5.3(c) = Lawyer can be responsible for nonlawyer’s violation when lawyer
1. directs nonlawyer to engage in conduct OR
2. knows about it AND ratifies it OR
3. is a partner/comparable managerial authority in firm OR has direct supervisory authority over the nonlawyer
AND knows of conduct at a time when consequences can be avoided or mitigated
BUT fails to take reasonable remedial action
(identical to 5.1(c) but applied to nonlawyer’s violations)
R.5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE
focus of civil liability v. disciplinary rules
CIVIL LIABILITY OF LAWYERS
Civil liability focuses on damages
Disciplinary rules focus on licensing (to practice law)
#1 practice tip CIVIL LIABILITY OF LAWYERS
Get malpractice insurance, dufus
elements of malpractice claim
CIVIL LIABILITY OF LAWYERS
- Lawyer owed a duty to P
- Lawyer failed to exercise “competence and diligence normally exercised by lawyer in similar circumstances
- A breach of duty caused harm to P**
** difficult to win malpractice claims because P has to try a case within a case in proving but-for causation
criminal
LIABILITY OF LAWYERS
Criminal charges can be brought
EXAMPLE = often lawyer stealing money
client protection funds
LIABILITY OF LAWYERS
= State-sponsored programs designed to reimburse clients whose lawyers have stolen from them
- Doesn’t cover full loss, usually statutory ceiling
- Often comes from portion of lawyer fee
