Professional Responsibility

MR 8.4(g)

Discrimination

It is professional misconduct for a lawyer to:

*engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination

*on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

*Comment 3: This includes harmful verbal or physical conduct that manifests bias or prejudice towards others.

ABA Form Opinion 493: Covers conduct related to practice of law that occurs outside the rep of client or beyond courtroom. Doesn’t have to be severe/pervasive

CR 8.4.1

uWhile more detailed than MR 8.4(g), more narrow in scope.

uApplies only to “unlawful” harassment or discrimination

uApplies when representing a client or in relation to firm’s operation (MR: activities related to the practice of law)

uNote provisions of 8.4.1(b), in relation to a law firm’s operations:

uCannot unlawfully refuse to hire or employ, select for training, discharge or discriminate in compensation based on protected characteristic

uCannot unlawfully retaliate

Categories broad

Longer list than in MR :

race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law  . . .

MR 8.4

Professional Misconduct

It is professional misconduct for a lawyer to:

*violate MR or knowingly assist or act through another to do so

*commit a criminal act reflecting adversely on atty’s honesty or fitness as a lawyer

*conduct involving dishonesty, fraud, or misrepresentation

*conduct prejudicial to the administration of justice

*assist a judge or court officer to violate MR or law

*imply an ability to improperly influence a government agency or official

*engage in conduct that adversely reflects fitness to practice law

What does it mean to be a fiduciary?

A fiduciary is someone who assumes a position of trust in relation to another

Fiduciaries must place the interests of the other above their own interest and must act in good faith on the other’s behalf

B&P Code 6001.1

Highest priority is protection of the public. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount

B&P 6010-6038:  Board of Trustees

uKnow these powers and authorities generally. 

uThey have been tested before, but you do not need to know the intricate details. 

uTry to garner an understanding in your outline of what the State Bar Board of Trustees is and what it can do.

B&P Code 6008-6008.7: 
State Bar Powers

uYou can generally lump these together in your outline with keywords to describe the powers.

uConsider these akin to bylaws to a corporation—just statutorily mandated. 

MR 8.1 and CR 8.1

ONLY ONE THAT APPLIES TO LAW STUDENTS

uAn applicant for admission to the bar . . . shall not

u(a) knowingly make a false statement of material fact

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority . .

Big Three of Professional Duties

MR 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication)

Potential Consequences for Violations of Ethical Rules

-Administrative Sanctions (reprimand, suspension, disbarment)

-Civil Liability (to the extent civil laws were violated, e.g., legal malpractice, negligence, or fraud)

-Violation of the rules is not a direct basis for civil liability, but if a lawyer is sued for malpractice, proof of violation of a rule may be a factor in showing violation of the prevailing standard of care.

-Criminal proceedings (in the event criminal laws were violated)

-potential for ALL OF THE ABOVE

MR 1.3

A lawyer shall act with reasonable diligence and promptness in representing a client.

“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. . . .” Rule 1.3, Comment 1

Workload must be controlled so each case can get attention. Comment 2

Delay and procrastination can cause missed deadlines, or cause needless worry/anxiety to client and undermine lawyer’s trustworthiness. Postponement okay if no prejudice to CL. Comment 3

MR 1.4

Communication

“(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Comment 2: CL consent before settlement or plea bargain, unless prior discussions direct lawyer

Comment 3: Some scenarios may require attorney to make immediate decision w/o first consulting CL. But, still got inform them after.

Comment 5: The guiding principle = lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation

MR 1.4

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment 2: Can acquire competence through necessary study, or association w/ lawyer of established competence in the field. New attorney can become as competent as experienced attorney

Comment 3: In an emergency, may advise/assist in matter lacking competence and impractical to refer/associate. Assistance should be limited to that reasonably necessary under circumstances

Comment 4: Can accept CL where need to achieve competence through reasonable prep

Common Causes of Incompetence

-Inexperience

-Ignorance

-Neglect

-Lack of Time

-High Volume of Matters

-Substance Abuse Issues*

*Substance abuse issues can contribute to, and compound, all of the other issues that result in incompetence

Duties of Competence and AI/Tech

When using AI, a lawyer has two related duties of competence:

1) Must attain baseline technological competence by developing a reasonable understanding of the relevant AI system’s capabilities, data sources, limitations, and material risks and benefits before deploying it in connection with legal services;

2) Must exercise independent professional judgment by reviewing, verifying, and correcting AI-generated outputs consistent with the learning and skill reasonably necessary for the representation.

MR 1.2

Scope of Rep & Allocation of Authority

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Objectives = decisions affecting ultimate resolution of the case

Means = Procedural/tactical decisions

MR 5.5

A lawyer is subject to discipline for practicing law in a jurisdiction in which the lawyer is not admitted to practice.  MR 5.5(a); 8.5(a); see related CR 5.5 and 8.5.

-Note that only lawyers are subject to discipline, but non-lawyers (as well as lawyers) may be subject to civil and criminal penalties for unauthorized practice of law.

-Under B&P section 6126(a), if convicted, you can be punished by up to one year in jail and fined up to $1000 or both.

-The "practice of law" is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.

Under MR 5.5(b), a lawyer who is not admitted to practice in a jurisdiction shall not:

(1) establish an office or other systemic and continuous presence for the practice of law or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice in the jurisdiction.

A lawyer admitted in a jurisdiction may provide legal services in another jurisdiction on a temporary basis if the services are undertaken in association with a lawyer who is admitted to practice in the second jurisdiction and who actively participates in the matter. MR 5.5(c)(1).

Comment 5: Temporary approval to practice in other Jx if approval from court (pro hac vice). Can still do preliminary things (meet w/ CL, witness interview, doc review) if reasonable expects admission pro hac vice

MR 5.5(d)(1) In-house counsel can provide counsel w/o being admitted to practice

Comment 19: Violate rule = subject to discipline in home Jx and new Jx

Rule 5.3

Responsibilities Regarding Non-Lawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) supervising lawyer shall make reasonable efforts to ensure non-lawyer’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.