Lawyer Liability

Question 1

R1.6 counseling client to engage in crime/fraud

Answer 1

 rule: a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, BUT a lawyer may discuss the legal consequences of any proposed course of conduct w a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law

Question 2

R8.3 reporting professional misconduct (2 rules one exception)

Answer 2

 (a) a lawyer who knows that another lawyer has committed a violation of these Rules that raises a substantial question as to that lawyer’s honesty/trustworthiness/fitness, shall inform the appropriate professional authority
 (b) a lawyer who knows that a judge has committed a violation of judicial conduct that raises a substantial question as to that judge’s honesty/trustworthiness/fitness, shall inform the appropriate professional authority
 (c) exception – this rule does not require of disclosure of confidential info (R1.6) or information gained by a lawyer/judge while participating in an approved lawyers assistance program
• however, a lawyer should encourage a client to consent to disclosure of R1.6 info where prosecution would not substantially prejudice the client’s interests

Question 3

R8.4 7 types of misconduct

Answer 3

 (a) violate or attempt to violate these Rules; knowingly assist/induce another to do so; or do so through the acts of another
 (b) commit a criminal act that reflects adversely on the lawyer’s honesty/trustworthiness/fitness
• can include private conduct that indicates a lack of characteristics relevant to law practice: violence, dishonesty, breach of trust, serious interference with admin of justice, etc.
 (c) engage in conduct involving dishonesty/fraud/deceit/misrepresentation
 (d) engage in conduct that is prejudicial to the admin of justice
• like showing up late to court or filing documents late with the court
 (e) state or imply an ability to influence improperly a gov’t agency/official or to achieve results by means that violate these Rules/other law
 (f) knowingly assist a judge/judicial officer in conduct that is violative of applicable rules of judicial conduct/other law
 (g) engage in conduct that the lawyer knows/reasonably should know is harassment/discrim on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender ID, marital status, or socioeconomic status in conduct related to the practice of law

Question 4

o R5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers

Answer 4

 (a) duty to furnish internal policies
• lawyer managers shall make reasonable efforts to set up systems to prevent ethical problems – these include procedures to check for conflicts of interest, manage client funds, and provide CLE in legal ethics
• for small firms of experienced lawyers, informal supervision and periodic review may suffice, while more elaborate measures are needed in larger firms
• **applies to any legal service organization (not just firms)
 (b) duty of supervision
• a lawyer with direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to these Rules
• if a subordinate lawyer commits an ethical violation, the supervising lawyer is not responsible if the supervisor did not direct or know about it (but the violation could reveal a breach of the supervisor’s duty under R5.1(b) to make reasonable efforts to prevent violations)
 (c) a lawyer shall be responsible for another lawyer’s violation of these Rules if:
• (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, or
o **not limited to partner/manager!
o i.e. a lawyer cannot avoid responsibility by ordering another lawyer to do the prohibited act
• (2) the lawyer is a partner/manager in the firm or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided/mitigated but fails to take reasonable remedial action
o supervisory authority is a question of fact
o appropriate remedial action depends on the immediacy of that lawyer’s involvement and the seriousness of the misconduct

Question 5

o R5.2: Responsibilities of a Subordinate Lawyer

Answer 5

 (a) a lawyer is bound by these Rules notwithstanding that the lawyer acted at the discretion of another person
• even so, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules (ex – if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character)
 (b) a subordinate lawyer does not violate these Rules if that lawyer acts in accordance w a supervisory lawyer’s reasonable resolution of an arguable question of professional duty