Regulation of Attorneys

August 26-29, 2009

Sally Student asked Peter Professor to write a letter for the admission to practice law in Missouri.

• Professor is licensed in Missouri• Student does not ask about content of letter• Student got top grades on final exams• Professor believes that Student is irresponsible

and dishonest• Professor writes a letter in which she details

Sally’s academic performance and the also provides his views of her professionalism.

WHICH IS THE BEST ANSWER?

A. Professor would be subject to discipline if he did not respond to the bar, given the information available to him.

8.1 provides no affirmative duty to disclose information about bar applicants

What facts would make this the correct answer?

• If Professor knew of a misapprehension (Rule 8.1)

• If Professor were given a lawful demand for information (Rule 8.1)

• If Professor found out that applicant had engaged in fraud or deceit on her application (Rule 8.3)

B. Professor would be immune from civil suit based on the contents of the letter he wrote.

• Is this in the text of the model rules?

• Where might you find the answer to this question if you were researching?

• We’ll come back to this one.

C. The Board of Bar Examiners may not consider any negative letter from Professor because they must base their decisions on character and fitness on an official Character

and Fitness report, not unsolicited letters.• Common sense tells us there is no such

hamstringing of the court’s inherent authority. • Outer limits are due process

Due Process

• In an attorney disciplinary proceeding, due process requires, at a minimum, "notice and an opportunity to be heard," Charges of Unprofessional Conduct Against 99-37 v. Stuart, 249 F.3d 821, 825 (8th Cir.2001), and that the district court follow its "procedural rules governing attorney discipline," In re Bird, 353 F.3d 636, 638 (8th Cir.2003).

D. Professor would be subject to discipline because he was dishonest

in writing the letter.

• The facts given always control the answer

• Professor made no affirmative statement that he would write an unfavorable letter. Rude perhaps but not dishonest in any affirmative sense.

Which leaves B

• Even if the letter could pass the common law standards for defamation, in most jurisdictions there is immunity from civil liability for statements made in the context of bar admission investigations.

• Missouri Supreme Court Rule 8.14 – provides Immunity for communications to Board of Bar Examiners

Question 2

• A & B are campaigning for judicial appointment

• A says B was arrested for having porn

• Is Attorney Alpha subject to discipline for making these remarks?

What rule applies here?

Rule 8.2

A. No, since Attorney Alpha is not a judge, he would not be bound by the

code of judicial ethics.

• First, the statement is wrong – See Rule 8.2(b) • Second, the statement is really irrelevant even if

true. Attorney is still bound by the rules of professional conduct (remember Rule 8.4 – the general misconduct described there need not be occur in one’s capacity as an attorney in order to be subject to discipline)

B. No, because the public has the right to know the truth about whom they are voting for in a judicial election.• Again, true, but irrelevant.

• Key language of rule: “knows to be false or with reckless disregard as to its truth or falsity”

• There is no indication that Alpha knew or should have known the statement was true.

C. Yes, because Attorney Alpha’s statement is disrespectful and as a judicial candidate, he may not make such statements.• Rule doesn’t require respect (though other

rules might) only limits statements regarding “qualifications or integrity of a judge”

• What is the rationale behind this rule?

D. Yes, if Attorney Alpha knew that Attorney Beta had never been arrested for possession of pornographic material.

• Why must this be the answer?

• United States Constitution, Amend I

Question 3• City Attorney• Hires Lawyer and 3 other associates – all except

Lawyer left within 4 months• City officials want to fire Attorney – billing

records vague (among other complaints)• Lawyer reviews Attorneys bills• Lawyer sees billing for time Lawyer knows

Attorney was not working• Lawyer doesn’t report to disciplinary authority• Is Lawyer subject to discipline?

What rule?

• Rule 8.3 – reporting professional misconduct

A. No, because an associate is not responsible for the actions of his supervising attorney.

• Rule 8.3 doesn’t make an exception for supervising attorneys

• Rule 5.2(a) “lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person”

B. No, if Lawyer’s financial obligations are significant.

• Pressure may explain why attorneys violate the rules but it does not excuse them

• See ABA Standards for Imposing Disciplinary Sanctions (handout)

C. Yes, unless Attorney was removed as counsel to City.

• (C) is irrelevant. Lawyer would owe a duty to report Attorney’s actions regardless of whether Attorney remained in office.

• Notice that some duties are limited to certain periods of time – look for example at rule 3.3(c).

D. Yes, because Attorney’s false billing claims involve dishonesty and Lawyer is obligated to report them.

• It’s left so it’s right.

Review of key terms:

• KNOW

• SUBSTANTIAL QUESTION

• HONESTY, TRUSTWORTHINESS OR FITNESS AS A LAWYER IN OTHER RESPECTS

When do you know?

• Rule 1.0(f) “ actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances”

• Generally need first-hand knowledge

What is a substantial question?

• "Substantial" refers to seriousness of offense and not quantum of evidence

Yes, it’s really enforced…

• In re Himmel, 533 N.E.2d 79 (1988)(lawyer suspended one year for failure to report his unprivileged knowledge of conversion of settlement funds by client's prior lawyer). (the only case reporting a violation of this rule)

When to report?

• Delay in order to secure more evidence ordinarily would not be justified. See Comment 3 to Rule 8.3, which does not require the reporting lawyer to be sure of the quantum of evidence.

• Formal Opinion 94-383 – “A lawyer who becomes aware of professional misconduct that raises a substantial question as to a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects should report that misconduct promptly, to the extent required by Rule 8.3(a), n3 and not use it as a bargaining chip in the civil case.”

Exceptions?

• Need not report self• Need not report confidential information• "However, a lawyer should encourage a

client to consent to disclosure where prosecution would not substantially prejudice the client's interest."

• Need not report information gained while participating in LAP

Finishing up reporting Rule 8.3

• Lawyers Assistance Programs

Judges also must report

• Code of Judicial Conduct: Canon 3D(2)• A judge who receives information indicating a

substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.

But that’s not an excuse for attorneys to fail to report

• No priority of reporting

• Need for cumulative evidence

Question 4

• Alpha is attorney in First and doctor in Second

• Failed to report required information about prescription drug practices in medical license renewal.

• Is Alpha subject to discipline in State First for so doing?

A. Yes, because his actions involve dishonest or misrepresentation.

• Seems like a good answer - Rule 8.4(c) • Comment 1 states that a lawyer “should be

professionally answerable only for offense that indicate lack of those characteristics relevant to law practice.” Is this?

• Let’s see if any exceptions that the following three answers imply really exist…

B. Yes, but only if he is first disciplined by the board of healing arts in State Second or subject to criminal sanction.• (c) engage in conduct involving dishonesty, fraud,

deceit or misrepresentation;• Doesn’t require a conviction or arrest or prior

discipline • Either would put him on fast track to discipline

however (See rule 5.21 Missouri Supreme Court Rules)

C. No, because his action was not in his capacity as an attorney.

• All of Rule 8.4 misconduct except 8.4(a) can apply to personal conduct.

D. No because his action was not in State First.

• Rule 8.5(a) “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs.”

• Dennis Defender represented Connie Convicted in a charge of first‑degree murder in Missouri court. Dennis

• Incompetent

• Disciplined

• Likely effect of the disciplinary authority’s actions?

Question 5.

Rule?

• Preamble: [20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached…. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

See Missouri’s version of the last sentence

• “Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

A. Connie has no liability to Dennis for any legal fees.

• Contract law, the contract would have to have some quality assurance -- which in itself makes it sound like a contingency fee contract – See Rule 1.5

• Disciplinary authority may require restitution (see Sanctions Standards)

• Court has discretion to require disgorgement where conduct violates fiduciary duties

• Bertelsen v. Harris, 9th Cir., No. 06-36020, 8/11/08 (Court held no abuse of discretion for denying disgorgement where no injury to client).

B. Connie will have her conviction overturned for ineffective assistance of counsel.• Strickland v. Washington, 466 U.S. 668

(1984) requires proof of errors that prejudiced the client

• Prior finding of IAC will not automatically result in discipline, nor will the denial of post-conviction relief insulate lawyers from professional discipline. In re Wolfram, 847 P.2d 94 (Ariz. 1993)

C. Connie will be able to prevail in a legal malpractice action against Dennis. • Unlikely • Prerequisite to maintaining a criminal malpractice

actions in most states is a successful appeal based on ineffective assistance of counsel.

• Some states go even further, requiring plaintiffs to prove actual innocence of the underlying offense in order to win a criminal malpractice action.

Local decisions:

• Missouri applies collateral estoppel (issue preclusion) to preclude criminal malpractice where there has been a finding of guilt or guilty plea. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498 (Mo. Ct. App. 1985)

• Kansas also adopts the exoneration rule. Canaan v. Bartee, 72 P.3d 911 (Kan. 2003)

D. Dennis’s admonition may be used in subsequent disciplinary proceedings in Missouri or in other states• See Mo. Ct. Rule 5.31 Records of

Investigations and Formal Proceedings.

Sources of Authority in Regulation

Oath of Admission

Rules of Conduct

Civil and Criminal Liability

Rules of Court / Contempt Power

Administrative Regulation

Regulation and Roles

Roles of attorneys

Rules of Professional Conduct

• Poorly address the roles of attorneys outside the courtroom and outside the context of litigation

• Poorly address the content-specific issues faced by attorneys in specific fields of practice

The Lawyer as Advisor

No one wants advice—only corroboration.

John Steinbeck

Example: Rule 2

• What are an attorney’s ethical duties when advising a client?

• “shall exercise independent professional judgment and render candid advice”

Why would this not happen?

• “may refer” to other considerations

When might you want to do this?

Questions about advising

• Can you give a client unsolicited legal advise?

• Must you ever give a client advice on a subject they haven’t asked about?

• In litigation, what specific advice must you ordinarily give clients?

READ THE COMMENTS!!!

Lawyer as Evaluator

Opinion Letters and Rule 2.3

Rule 2.3

• When might a client ask you to give an opinion letter?

• When must you refuse?

• How much can you disclose?

Rule 2.4 Attorney as 3rd Party Neutral

• Is this really even the practice of law?

• What guidance does this rule provide?

• What other sources of guidance?

Next Class

Access to Justice & Forms of Practice

Have a lovely labor day weekend!