I. Introduction A. Basic Terms: 1. Professional responsibility = the law of lawyering &/or the regulation of lawyers 2.

professional discipline = reprimand, suspension, disbarment or other punishment imposed for violating
disciplinary rules 3. disciplinary rules = internal regulatory standards set by the highest court of any state (often delegated to the state bar associations) i. violation of disciplinary rule subjects a lawyer to disciplinary action (censure, private/public reprimand, suspension, disbarment) but not to civil liability ii. violation of a disciplinary rule is NOT conclusive proof of malpractice for civil liability but it is often relied upon by cts. as evidence iii. cannot avoid disciplinary rules by settling with the client for malpractice suits

B. Basic Theme: Agency 1. A lawyer is an agent i. A lawyer is NOT a principal a. what the lawyer does is about the client & furthering the client's interests -- not the lawyer's ii. Lawyer is agent of client AND of the lawyer's firm a. lawyer is agent of entity client not those persons who run the entity 2. Lawyer is NOT a tool - but an agent i. an agent is someone who bears moral & legal responsibility for their actions (a tool has no such responsibility) C. History / Sources Used for General Study 1. ABA Canons of Professional Ethics (1908) i. not black letter legal rules -- just set out general guide for lawyers ii. aspirational/idealistic iii. recognized that lawyers couldn't comply w/all of them all of the time 2. ABA Model Code (1970) i. recognized distinction btw ideals (Canons 1908) & setting minimum standards (Code) ii. divided into a. ethical considerations 1. not supposed to vary legal duties as stated the disciplinary rules but were used to clarify abiguity in the black letter law which led to unpredictability re: professional discipline b/c sometimes inconsistent ethical considerations made it impossible to settle on a bottom line rule b. canons c. disciplinary rules (grouped by subject matter) 1. only legally enforceable rules 2. prohibited specifically described conduct iii. focus mostly on litigation & not much on counseling, drafting, planning & transactional matters iv. b/c of inconsistencies (see above) & lack of focus outside of litigation resulted in Model Rules 3. ABA Model Rules i. Kutak Commission (chaired by Robert Kutak) a. was controversial b/c substantial disagreement re: context of certain rules & also b/c nature of project seemed suspect ii. Structure adopted by Kutak Commission: a. regulatory in structure b. establishes minimum standard of conduct

highest ct. SCOTUS ii. RST (3d) of the Law Governing Lawyers i. sanctions on lawyers ii. enhance the legitimacy of the profession. disqualification of representation iii. to regulate the activities of lawyers appearing before the ct. Track 2 inherent authority . did away with ethical considerations & statement of ideals "best practices" d. a lawyer cannot avoid discipline by paying back client or making client otherwise whole 3. where current law is good RST picks up the existing rule b. but still allowed for some discretion (may v.'s regulating of lawyers who appear before them i. Law is a self-regulating profession (self regulation is a primary characteristic of professions) 1.c. to regulate the activities of lawyers appearing before the ct. Federal Judiciaries: i. 43 states + DC are MR based b.ct. Establishing rules of professional conduct: (Track One Inherent Authority) i. regulate admission to practice & to mete out punishment for violations of disciplinary rules iii. where law should be changed the RST takes a more forward-looking prospective II.they must turn one another in 4. lawyers not just regulated by clients in civil suits ii. track two inherent authority : inherent authority of all trial cts. State Judiciaries: i. & c. an increased respect for the bar b. generally delegated much of this power to state bar associations which establishes the rules of conduct & investigates/punishes violations ii. 100% made up of disciplinary rules 1. . track two inherent authority : inherent authority of all trial cts. Administer system of investigating & Imposing discipline for violation of disciplinary rules i. policy: if the organized bar regulates the profession it will result in a. Then there is C & NY 4. Lawyers & judges have duties to be rats -. idea behind disciplinary rules is that the legal profession should be self-policing ii. state disciplinary authority  official committee. 2. there will be less pressure for external regulation of the practice of law 2. must) e. no 1st or 2d RST ii. 4 are code based c. of state has inherent power to regulate the conduct of lawyers practicing in the state (track one inherent authority) a. trend towards the MRs over the Code in the 1990s a. Regulation of the Legal Profession A. Sources of Regulation 1. agency or state bar association empowered to draft & promulgate rules of professional conduct. value judgment re: legal rules a. in exercising track one inherent authority it determines the rules of professional conduct b. didn't touch on the morality of what lawyers should do iii. allowing malpractice actions to go to jury B.

S. more substantial restriction on practice by out-of state lawyers have been struck down (a) cannot require a home address as a condition for bar admission (as opposed to business address) (b) cannot require experienced practitioners wanting to be admitted on motion to maintain a residence w/in in the state b. sets rules for lawyers who work for them American Bar Association/Bar associations: i. may be the preferred regulators of lawyers but they share this power w/other branches of gov't 7.'s ability to administer justice disciplinary rules. source of legal authority (cases. adopt forum state's version of the Model Rules iii. are not bound to apply the rules of the forum state in which they are located 1. Requirements for Admission (general/similar in all states) . Federal cts. refusal to take an oath to uphold the state & federal constitutions 4. 4. have their own inherent authority to regulate the practice of lawyers who appear before them b.3. 6. the individual ct. watered down version of the doctrine  cts. promulgating rules to govern the profession as a whole v. have track one inherent authority to promulgate C. Track two inherent authority i. graduation from ABA accredited law school 2. Citizenship 2.'s power to punish a lawyer for engaging in conduct that interferes w/that ct. Federal cts. statues. requirement that a lawyer maintain a bona fide office (not just a P. 5. state bar associations are often delegated the authority to promulgate the rules of professional conduct & investigate & mete out punishment for violations ii. What is not rational? 1. passage of bar exam 3. adopt ABA version of Model Rules ii. U. residency (see above) 2. Negative inherent power doctrine  if state cts. set rules for lawyers who practice before them ii. a. as stated above. adopt idiosyncratic rules that aren't necessarily the same as ABA or state version of the disciplinary rules Administrative Agencies i.O. in a malpractice. Box & a phone answering service) w/in state has generally been held to be ok i. Track 1 inherent authority gives the highest tribunal in any state the power to establish rules & procedures re: admission of lawyers to practice i. difference btw the state's highest ct. administrative regulations) that apply universally (regardless of whether someone is a lawyer) Track one inherent authority v. this authority should prevent other branches of gov't from any jurisdiction from regulating the practice of law i. Admission to the Practice of Law (Bar Admission) 1. but SCOTUS held that state requirements for admission to bar need to be rationally related to the practice of law a. 3 general approaches federal district courts follow: i. opinions NOT BINDING on a ct. What is rational? 1. will publish opinions re: how a given situation would be treated under disciplinary rules a. disqualification or other similar proceeding Generally Applicable Law i.

evidence of neglect of financial responsibly (E. character & fitness review a.see below) iii. clients & 3Ps (not part of bar discipline . trustworthiness or fitness as a lawyer 1. the ct. propensity to cheat 2. 1st Am. part of bar admissions procedures b. limits on the character & fitness review process i. can only deny admission basis of conduct that is germane to the practice of law (a) i. things that are probative (moral character re:) i.0(f) knowledge may be inferred from the circumstances b. propensity to lie iii. Regulation After Admission (Bar Discipline) 1. Who regulates? i. child support) (a) worry that those who've played fast & loose w/their financial obligations in past may be more likely in the future to dip into client funds to satisfy personal debts iv.3(a)  when a lawyer has knowledge of another lawyer's violation of the rules or other misconduct. duty to report on other lawyers is qualified -. 4 typical problematic things: i. may prohibit a state from denying admissions on the basis of past membership in a subversive organization (however can still compel the applicant to answer questions about that membership) D. pattern of law-breaking supporting the inference of recidivism/cavalier attitude toward the legal profession ii.e.g. cannot deny b/c cohabitating w/a member of the opposite sex iii. defaulting on loans. trustworthiness ii. usually ABA b. MR 1. other lawyers & judges a. in which the lawyer is practicing (Track 2 Inherent authority) ii. MR 8. Americans w/Disabilities Act  not clear if states can deny admission basis of mental disability ii.no duty where: . sometimes only accreditations by state agency ii. failure to disclose information responsive to a question on the application (a) may care very little about the underlying offense but really care re: fucking with their admissions process 3. smaller number of infractions revealing dishonesty or abuse of a position of trust (a) doesn't have to be criminal convictions  school honor code violations count (b) lawyers have fiduciary relationships w/clients & thus have opportunities to abuse the asymmetry of power & knowledge btw lawyers & clients iii. generally looking for evidence of prior conduct that is probative of likely future violations of disciplinary rules 1. a lawyer has a duty to report to the state disciplinary authority where such conduct raises a substantial question as to that lawyers honesty. passing bar exam iii.but is civil liability -.i. propensity to steal iv. graduation from an accredited law school a. if have 1 -3 you may still be admitted but a closer look is taken & possibly a demand for evidence of rehabilitation 4. set forth in state statutes c.

deceit. Att'y Fees E. Formation of the Lawyer-Client Relationship C. from representing a client 2. Duties Owed By the Lawyer to the Client (breach of such duty gives rise to malpractice liability) . a lawyer can be disciplined for wrongful conduct even though not acting in capacity as lawyer IF conduct functionally relates to her capacity to practice law 1. Violating a disciplinary rule a. where lawyer learns of the misconduct in a lawyer rehabilitation program 2. e. attempting to violate disciplinary rule 3. Malpractice & Other Non-Bar Regulation of Lawyers 1. Types of Discipline for violating mandatory rule of professional conduct i. Nature of the Relationship B. Limitations on Scope & Allocation D. misrepresentation ii. Transactions w/Clients F. Scope of Representation C. serious interferences w/the administration of justice 4. Public reprimand/censure iii. Disbarment E. discipline is inappropriate for violations of personal morality (i. Unauthorized Practice & Multi-Jurisdictional Practice III. dishonesty.1. Lawyer . Representing Clients w/Diminished Capacity H. Forced Return of Earned Att'y Fees F.Client Relationship . Liability to 3Ps 4.3(a) 2. violence  especially where violence is quite serious d. willful failure to file an income tax return 3. Malpractice Suits 3. Structure of the Lawyer-Client Relationship A. Termination of the Att'y-Client Relationship IV. Acts not done in a legal capacity a. examples: 1. adultery) c. Suspension (for a finite period) iv.g. Disqualification by a ct. patterns of repeated minor offenses if it indicates indifference to legal obligation iii. fraud or breach of trust 2.e. assisting or inducing another to violate a disciplinary rule b. trustworthiness or fitness as a lawyer in other respect b. Private reprimand/censure ii.Overview & Formation/Termination A. criminal acts: not all illegal conduct can result in discipline a. those which reflect adversely on the lawyer’s honesty. Types of Conduct Which May Result in Disciplinary Action i. the lawyer learns of misconduct in the representation of a client (professional duty of confidentiality trumps MR 8. acts involving fraud. Handling Client Property G. but can be subject to discipline where illegal act is one that is functionally related to the fitness to practice law 1. Allocation of Authority B.

Law Firms & Associations A. Conflicts of Interest .Former Clients XII. Lawyer as a Negotiator D. Lawyer as a Third-Party Neutral XVII. Responsibilities of Partners.Conflicts w/Former Judges. Attys XV. C. Conflicts of Interest . Advisor to Client B. Conflicts of Interest Overview X. Duty of Communication VII. Duty of Care (i. Litigation Duties XVI. Respect for Rights of Third Persons XVIII. Prof . Responsibilities Concerning Non-lawyer Assistants E.Interests of Third Parties XIII. Lawyer Transactions w/Third Persons A. Conflicts of Interest .e. & Supervisory Lawyers. Care (see_____) ii. Terms & Definitions B. Confidentiality (see_____) iv. Truthfulness in Statements to Third Persons B. Loyalty (see_____) V. Arbitrators. Managers.1. Non-Litigation Att'y Roles & Duties A. Dealing w/Unrepresented Persons D. Communication w/Persons Represented by Counsel C. The Four Duties: i. Duty of Competence & Diligence) VI. Conflicts of Interest .Gov't Employees XIV. Communication (see_____) iii. Evaluation for Use by Third Persons C. Duty of Confidentiality (& Attorney-Client Privilege/Work Product Doctrine ) VIII. Entity Clients IX. Conflicts of Interest .Current Clients XI. Responsibilities’ of A Subordinate Lawyer D.

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