Principles of legal ethics; regulation of the legal profession

Role and responsibility of lawyers - to whom?

Clients

Justice system and rule of law

People impacted by lawyer’s actions (e.g., opposing parties, court, society)

Lawyer themself

5 main principles of professionalism (Neil Hamilton)

Continue to grow in personal conscience

Agree to comply w/ ethics of duty (floor)

Strive to realize the ethics of aspiration

Agree to hold other lawyers accountable

Agree to act as a fiduciary to clients, the public good, and the justice system

Prof Lerman - interaction btwn rules and sense of right/wrong

“Think about what you believe is the 'right thing to do’ and whether what is morally appropriate aligns with the guidance in the ethics code or other law.”

The Path of the Law (Holmes)

Lawyer =/= morality - one can follow the law w/out upholding moral standards

Holmesian “Bad man”

Assuming all your client cares about is whether they are violating or complying with the law

Ignore “vaguer sanctions of conscience” and how this might drive client’s goals

Meiklejohn’s critique of Holmes

Law and morality are not separate, b/c foundation of our law is in the Constitution, which was based on moral ideas of how to improve the common welfare

Relationship btwn Holmes’ bad man perspective and a lawyer’s duties under the rules

Lawyer must abide by client’s objectives (and how do we know what those are if we don’t ask?)

Lawyer may have a moral dialogue w/ their clients - 2.1, Cmt. 2 - lawyers are not moral advisors, but “moral and ethical considerations” are relevant to legal problems

Lawyer’s ability to leave the representation due to a moral disagreement

Under 1.2(b), lawyer’s representation of client =/= endorsement of the client’s views

Under 1.16(b)(4), lawyer may leave the representation if client persists in conduct the lawyer finds “repugnant”

Under 6.2- court cannot seek to avoid court appointment unless there is good cause, which may include a cause “so repugnant” that A/C rel will be “impair[ed]”

Relationship btwn bad man framework and legal education

• Sahl - training focuses on IRAC, predicting legal outcomes, not morality

• Wald & Pearce - students taught to look at legal issues from “autonomous self-interest” rather than “relational self-interest”

Spaulding v. Zimmerman

Defendant did not disclose life threatening aneurism found by D’s medical expert

There was no requirement to disclose, so court said this was fine

Court put more fault on P’s attorney for not asking for opposing counsel’s medical report

Here, attorneys imposed a bad man perspective on the client

Attorney Pemberton’s reflections (attorney in Spaulding v. Zimmerman)

Wishes he disclosed the info, “as an act of humanity”

Pressured to stay silent from senior attorneys who pressed the case on him b/c they were busy

Civility in the practice of law

Respect for others, rather than slash and burn tactics

Preamble ¶ 5 - “Lawyers should use legal procedure for legitimate purposes and not to harass or intimidate”

“Zeal” demoted from text of 1.3 to comments

Particularly important given adversarial nature of our work (Chief Justice Burger said in In re Snyder)

Sometimes we forget we’re in a profession fighting others

Illinois Supreme Court Commission on Professionalism - takeaways

Professionalism is the new ethical consideration

“The difference between ethics and professionalism is the difference btwn rules and aspirations”

Professionalism is like a performing art - we get better w/ practice

PA bar association - working rules of professionalism

Rule of Professional Courtesy #1 - “Treat with civility the lawyers, clients, opposing parties, the Court and all teh officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.”

Monroe Freedman - zeal

“Dominant standard of lawyerly excellence”

Takeaways - 9/11 torture memos and Enron

Narrow definition of torture - ignored lack of “time of war” defense in federal statute

Lawyers for Enron ignored blatant red flags

Can’t reverse-engineer advice for our clients, b/c this violates duty to provide “candid advice”

3 differences btwn transactional and litigation practice that relate to ethical considerations

(1) In transactional setting, client has not yet acted, so lawyer’s advice can shape future

(2) Transactional lawyers may try to pressure lawyers into “reverse engineering” advice to seek their future plans

(3) Litigation imposes unique “checks” on lawyers that aren’t present in transactional practice (e.g., FRCP 11, reputation w/ judge)

Regulation of the legal profession - main entities involved

State supreme courts - adopt judicial ethics codes, promulgate governance rules, delegate authority to other bodies, administer and supervise professional discipline system

Bar associations - issue advisory opinions, recommend changes to ethics codes

Regulation of the legal profession - other entities involved

Govt agencies and Congress (SOX act)

ALI (Rst governing lawyers)

Prosecutors

Malpractice insureers

Law firms/employers

Clients

Why is the legal profession considered “self regulating'‘?

Rules of professional conduct are created by lawyers

State judiciary bodies are charged w/ implementing and enforcing

See also MRPC 8.3 and CJC 2.15

Preamble ¶ 10 - Self regulating profession

“Legal profession is largely self-governing.”

Other professions are too, but unique for our profession b/c of “close relationship btwn the profession and the processes of government and law enforcement”

Function of the rules (Preamble and Scope ¶¶ 19-20)

Rules do not carry force of law and are not binding on courts

Failing to comply w/ an obligation under a rule is “basis” for discipline

Does not create presumption of breach of legal duty (but may be evidence of breach)

Typical path to practice

Law school course of study

Bar exam

C&F

Law school course of study - typical requirements

ABA accreditation standards

If school is not ABA accredited, may only take the bar exam in state where school is located

Alternatives = apprenticeship programs

Bar exam - typical requirements

Each state has authority to decide what goes on its exam - National Conference of Bar Examiners recommends content

Uniform Bar Exam - allows portability
NextGen Bar Exam - greater emphasis on skills vs. memorization

Exceptions = diploma privilege in Wisconsin, period of work after law school in Washington

Character and fitness inquiry - rationale

Bar is trying to predict whether prospective attorney will (1) manifest qualities of a good fiduciary AND (2) be free from external influences that could impede ability to otherwise be a good fiduciary (e.g., drugs/alcohol)

Schware - limit on C&F inquiry

Questions and barriers to entry via C&F process must have “rational connection with the applicant’s fitness or capacity to practice law.”

C&F inquiry and duties under 8.1

Applicants for bar admission and lawyers helping applicants in their application shall not (a) knowingly make false stmt of material fact OR (b) fail to disclose fact necessary to correct misapprehension

Must respond to lawful demands for information (but subject to 1.6 protection)

What does having good “character” and “fitness” mean?

Prohibition on “dishonesty, fraud, deceit, or misrepresentation” in 8.4c implies importance of HONESTY

Also, 1.16(a)(2) mandatory withdrawal for illness/medical reasons imply physical/mental wellness is a component of fitness

Candor is critical in C&F process

In re Glass

Lack of candor in application process w/ NY and CA bars

Dishonest conduct while attending law school - even more grave b/c we’re constantly reminded of importance of honesty and candor

Used his writing as a vehicle to harm others

Violated journalism professional code of conduct

Hale - bigotry

Racist, head of white supremacist org denied bar admission - court upheld denial of licensure

Lawyers take on “special responsibility to uphold rule of law for all persons”

Bowman - financial irresponsibility

Court denied admission b/c 430k in student loans

Financial irresponsibility suggests person will not handle client funds responsibly (1.15)

Note - one law student in Ohio w/ 900k in debt was allowed admission b/c set up payment plans w/ creditors

7 grounds for professional misconduct under 8.4

• Violate or attempt to violate the MRPC, knowingly assist another to do so, or do so through acts of another

• Criminal act that reflects adversely on honesty, trustworthiness, or fitness

• Any conduct involving dishonesty, fraud, deceit, or misrepresentation

• Any conduct prejudicial to administration of justice

• State or imply ability to influence govt officials/judges

• Knowingly assist a judge/court officer in violating CJC

• Harassment or discrimination . . . in conduct related to the practice of law

Investigatory exception to 8.4c

Some states allow “Testers” in civil rights litigation, even though this might be characterized as “conduct involving dishonesty” b/c lawyer is lying about their identity/motives

See, e.g., Apple Corp v. International Collectors Society

States split on whether investigatory exception can apply in civil cases or just criminal cases

In re Crossen

Threatened clerk w/ extortion re: letters of rec on her bar application

Attorney’s actions to “test” whether judge was biased went beyond “elementary and essential misrepresentations” as to lawyer’s “identity and purpose” and thus violated 8.4c

Court noted “unusual scope of misconduct” that was “sui generis” —> disbarrment

Examples of conduct prejudicial to administration of justice

In re Himmel - creating settlement agreement w/ client’s former attorney to try to get undeserved legal fees back, rather than reporting to bar association

In re Reihlmann - not disclosing dying friend’s revelation re: hiding exculpatory blood evidence

Debate over 8.4g - harassment or discrimination . . . in conduct related to the practice of law

Some states have decided to adopt, most have decided not to

Texas AG argued limited 1A free speech

ABA Formal Opinion 493 - we need this rule to correct history of discrimination in our profession AND promote public trust

Greenberg v. Lehocky - 3d Cir

PA is a battleground for 8.4g

Court affirmed lower court’s decision to dismiss for lack of standing

Attorney argued PA’s version of 8.4g violated 1A b/c chilled his speech to discuss controversial topics in CLE seminars

PA’s chief disciplinary counsel notes 8.4g is supposed to apply w/ respect to harassment/discrimination toward “an identifiable person”

“Reactionary approach” to discipline

US uses a reactionary approach that imposes sanctions after lawyer has been caught (disbarment, suspension, public/private reprimand, restitution)

However, some proactive tools too - ethics hotlines, CLEs, practice tips from bar associations

ABA’s Standards for Imposing Lawyer Sanctions - 4 most important factors

Duty violated

Lawyer’s mental state

Gravity of actual injury or potential harm

Aggravating or mitigating factors

Choice of law - 8.5

2 steps in the analysis

(1) Which jurisdiction(s) have disciplinary authority over this misconduct? (may be multiple)

(2) Which set of rules should apply? (one, see 8.5, Cmt. 6)

Which states have disciplinary authority over the misconduct here? 8.5(a)

State where lawyer is barred

State where the “lawyer provides or offers to provide any legal services”

Choice of law - which state’s rules will apply? 8.5(b)

(1) Rules of state where tribunal is located

(2) Rules of jurisdiction where lawyer’s conduct occurred OR where predominant effect of conduct occurred

** If lawyer’s conduct complies w/ rules in jurisdiction where lawyer reasonably believes predominant effect of conduct will occur, lawyer shall not be subject to discipline

Snitch rule - 8.3

8.3(a) Lawyer who knows another lawyer has committed a violation of MRPC must report to appropriate authorities, if violation raises a substantial question as to their honesty, trustworthiness, or fitness as a lawyer

8.3(b) - same obligation w/ respect to judges

8.3c - lawyer not required to disclose info learned in course of representing person at issue (info protected by 1.6) OR info gained through LAPs

Reihlmann - lawyer “who knows” of another lawyer’s misconduct…

what does “knowledge” mean?

Firm belief that conduct at issue had more likely than not occurred

Lawyer must promptly report

Here, lawyer sat on info from his friend who suppressed blood evidence for 5 years

Misconduct brought against Reihlmann on two grounds, under 8.4d - prejudicial to admin of justice AND for 8.3a - failure to snitch

What type of conduct raises a “substantial question” about fitness?

Look to “seriousness of potential offense” NOT the “quantum of evidence” (8.3, Cmt. 3)

Can a client absolve their lawyer of snitch duty by explicitly instructing them not to report to disciplinary authority?

NO - In re Himmel was a monumental case, lawyers have duty to snitch on other lawyers, even when their clients tell them not to

Even if client has report, lawyer has the duty to report separately

Can a lawyer seek wrongful discharge if they are fired for snitching pursuant to 8.3?

Courts are split

Wieder v. Skala —> yes; encourage disclosure b/c we are a self-regulating profession

Jacobson v. Knepper —> no; employers can fire associates at will