Professional Responsibility

Chapter 1: Sources of Law and Lawyer’s Responsibility

 Rules of Professional Conduct: RLGL § 5 Violation results in professional discipline
 General law (civil and criminal, statutory and common law) applied to lawyers: RLGL § 6 (other legal
and equitable remedies beyond discipline).
o RLGL: Restatement of Law Governing Lawyers

The Legal Dimension of Professional Responsibility:

1. ABA Model Rules of Professional Conduct
a. Adopted by state supreme courts (49 states)
b. NC adopted 1985
2. Contract law
3. Agency law
a. “attorneys owe a fiduciary duty to their clients”
4. Tort law
5. Specific statutes and regulations
a. Sarbanes-Oxley; Circular 230; Patent and Trademark Office; Bankruptcy Code
6. Procedural law (FCRP 11 & 37; FRE)
a. Or state equivalents
7. Criminal law

Self-Regulation
 So, how are we a self-regulating profession?
o State bar
o Court authority
o Personal responsibility

Professional Responsibility is About the Legal Profession

 ABA Model Rules Preamble provide:
o A lawyer, as a member of the legal profession, is a:
 Representative of clients
 An officer of the legal system
 A public citizen having special responsibility for the quality of justice
NC Chief Justice’s Commission on Professionalism
 Primary charge: to enhance professionalism among North Carolina lawyers
 In carrying out this charge, the Commission provides ongoing attention and assistance to ensure the
practice of law remains:
o A high calling, dedicated to
 The service of clients and
 The public good
 Aspirational –beyond black-letter rules

1. The Six C’s

a. Competence
b. Competitive
c. Compassion
d. Curious
e. Careful
f. Clever

1. Accidental Clients
a. Court Appointments
b. Implied Client-Lawyer Relationships
 c. Prospective Clients
d. Joint Clients
e. Third-Person Direction
f. Insurance Defense
g. Organizations
h. Clients Who Morph
i. Quasi-Clients
j. Imputed Clients

Togstad v. Vesely, Otto, Miller and Keefe

 In a legal malpractice action, four elements must be shown:
o (1) That an attorney-client relationship existed;
o (2) that defendant acted negligently or in breach of contract;
o (3) that such acts were the proximate cause of the plaintiff’s damages; and
o (4) that but for defendant’s conduct the plaintiffs would have been successful in the prosecution
of their medical malpractice claim

The Bounds of the Law: