Professional Responsibility - Model Rules
Malpractice in Criminal v. Civil Matters:
There is no analogous post-judgment relief for civil litigants, whereas criminal defendants have IAC Civil plaintiffs seek what was lost (money) whereas the remedy in criminal contexts is not fungible (loss of liberty) Underpinnings of tort liability (compensation and deterrence) don't support compensating a guilty criminal offender.
The Duty of Competence:
lawyers owe clients a duty to perform competently
Malpractice v. Ethical Misconduct
Malpractice: when attorney fails to exercise ordinary case, and thereby causes damage to a client. (must have all elements of prima facie case) Remedy: typically a civil suit where client sues attorney for money damages Ethical misconduct: a violation of the ethical rules of conduct Remedy: typically discipline from ethics disciplinary board (disbarment, suspension, public or private sanction, etc.)
MR 6.1: Pro Bono
"Every lawyer has a professional responsibility to provide legal services to those unable to pay." "A lawyer should ASPIRE to render at least (50) hours of pro bono publico legal services per year." In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means, or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1)... organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes... (2) delivery of legal services for a substantially reduced fee to persons of limited means, or (3) participation in activities for improving the law, the legal system, or the legal profession In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
Birbrower test:
"whether the unlicensed lawyer engaged in sufficient activities in the state, or created continuing relationship with the California client that included legal duties and obligations." (quantitative and qualitative)
Courts have held that lawyers owe duties of care to certain non-clients:
(1) Beneficiaries of a will prepared for a client; (2) Primary beneficiaries of a lawyer's work - where client's purpose in retaining the lawyer was to provide a benefit to the non-client (such as trustees); (3) those whom the lawyer knows or should know will rely on the lawyer's work, and who do rely to their detriment (such as recipients of opinion letters)
Admission without Bar Passage: Pro Hac Vice
(1) Pro Hac Vice Admission ("for this occasion") Rule XIV: Practice by Comity Non-resident attorney must be admitted to practice before US S Ct., federal circuit of residence, or highest appellate court of state of residence, Local counsel must author motion for non-resident attorney to appear pro hac vice Any trial court may require the non-resident attorney to associate with AR counsel The state in which the non-resident attorney resides must accord similar comity and courtesy for Arkansas lawyers to appear pro hac vice. Local Rule 83.5(d) -- any attorney who is a member in good standing of the bar of any USDC... but is not admitted to practice... may, upon oral or written application, be permitted to appear and participate in a particular case. The application shall designate a member of the Bar of these Courts who maintains an office in Arkansas for the practice of law with whom the court and opposing counsel may readily communicate regarding the conduct of the case.
Types of Sanctions:
(1) State Courts Inherent Power Doctrine -- AR SC (2) Federal Courts Most have adopted the state rules in which they sit -- 28 USC 530(B) AR Procedure: AR SC appoints members to serve on the Committee on Professional Conduct 7 member panels
four part balancing test for inexcusable neglect to determine whether a party moving for relief on that ground should prevail:
(1) the danger of prejudice to the non-moving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and, (4) whether the moving party's conduct was in good faith. Inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable neglect"
MR 5.2: Responsibilities of a Subordinate Lawyer
(a) a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person (b) a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
MR 8.3: Reporting Professional Misconduct
(a) a lawyer who knows that another lawyer has committed a violation of the Rules... that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform that the appropriate professional authority © this rule does not require the disclosure of information otherwise protected by R1.6 (confidentiality)
MR 8.5(B) Choice of Law
(b) ... the rules of professional conduct to be applied shall be as follows: (1) [BEFORE A COURT -- LITIGATION] for the conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) [NOT BEFORE A COURT] for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
MR 5.3: Responsibilities Regarding Non-Lawyer Assistance
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and © a lawyer shall be responsible for conduct of such a person that would be a violation... 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 with its consequences can be avoided or mitigated but fails to take reasonable remedial action
"Professionalism" defintion:
- No real defintion "learned art being pursued by a group as a common calling... no less a public services because it may incidentally be a means of livelihood." (4) elements: 1. its practice requires substantial intellectual training and use of complex judgments 2. clients must trust those they consult, since they cannot adequately evaluate the quality of the professional's work, 3. self-interest is sublimated to the client's interest and the public good, and 4. it is self-regulating
Ethics Rules:
1908 - ABA Canon of Ethics Don't have to know 1970 - Model Code of Professional Resp. Don't have to know 1983 - Model Rules of Professional Conduct Don't have to know if different from 2002 version; AR adoption 5/1/2005 2002 - Model Rules version
Review: Breach of duty
A violation of the Model Rules does not automatically give rise to a malpractice action A violation of the Model Rules may be evidence of breach of the applicable standard of care
Ethics Rules on Competence: Supervisory and Subordinate Lawyers: R5.1,2,3
5.1(a) A partner in a law firm, 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 all lawyers in the firm conform to the Rules of Professional Conduct (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. © A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) The lawyer orders or, with knowledge of the specific conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
MR 6.2 - Accepting Appointments
A lawyer SHALL not seek to avoid appointment by tribunal to represent a person except for good cause, such as: (a) ... likely to result in violation of the Rules... or other law; (b) ... unreasonable financial burden on the lawyer; or © the client of the cause is repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client
In House Counsel -- MR 5.5(D)
A lawyer admitted in another US jx ... may provide legal services in this jurisdiction that: (I) are provided to the lawyer's employer and are not services for which the forum requires pro hac vice admission.
MR 8.5(A) Disciplinary Authority - when a misconduct occurs
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. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offer to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
Rstmt of the Law Governing Lawyers § 14
A relationship of client and lawyer arises when: (I) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
Q: How do we separate professional from unprofessional behavior?
A: Not a clear line; more subjective than anything. Ethical lawyering is the core of appropriate boundaries of professional behavior.
UPL: Non-lawyer may NOT:
Advise on remedies Assist in preparing forms Ask or answer questions regarding: The specific forms needed How to fill out forms Where to file forms How to present evidence at hearings Administrative Hearings: In general, non-lawyers can represent individuals during administrative hearings (so this would not be UPL). The assumption is that administrative hearings are rarely traditionally adversarial.
MR 8.1 Bar Admission and Disciplinary Matters
An applicant for admission to the bar (or a lawyer in connection with a bar application or disciplinary matter) shall not: (a) knowingly make a false statement of material fact; or (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, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. (Confidentiality rule).
Malpractice in Criminal Matters:
In a malpractice action, the client seeks money damages caused by defense counsel's breach of duty. In an IAC claim, the convicted criminal seeks reversal of a conviction, a sentence, or both. "actual innocence" requirement (maj rule)
MJP: 2 approaches
Approach 1: articulating by Cal. Sup. Ct. in Birbrower ^^^ Very restrictive Approach 2: embodied in MR 5.5 (AR follows) Less restrictive and a direct rejection of Birbrower
Equitania and Breach
Breach is a question of fact for the jury unless a reasonable person cannot differ The proper jury instruction allows the jury to determine to the reasonableness of the defendant's conduct for themselves
Defenses to Malpractice Contributory/Comparative Negligence
Clark v. Rowe Facts: real estate investment gone bad; D had been negligent in some financing stuff -- jury found that 70% of fault was P's, 30% was Rowe's In MA - comparative fault where P's fault can't be more than half; so P loses; R wins A LAWYER CAN DEFEND AGAINST MALPRACTICE Contributory/Comparative Negligence: 3 approaches Pure CN (min): P's claim is reduced by P's fault %; not barred Complete Bar rule (min): P's negligence bars claim entirely Mod. Comparative Negligence (maj): P's damages is reduced by P's % of fault, not barred unless P's fault is greater than or equal to D's
Ineffective Assistance of Counsel:
Comes from 6th Am. Two categories: Government actions: gov interferes with ability of counsel to make independent decisions regarding how to conduct the defense Counsel actions: counsel fails to render "adequate legal assistance"
Malpractice: Policy Justifications
Compensation for injured P's Deterrence for bad lawyering conduct
Applying Strickland to plea bargaining -- Missouri v. Frye
Deficient counsel performance? Yes Duty: to communicate plea offers to defendant !!! (derived from ABA Criminal Justice Standards) Prejudice? Likely but unclear Showing: "a reasonable probability he would have accepted the earlier plea offer if he had been given effective assistance of counsel"
Prima Facie Legal Malpractice:
Duty Attorney-client relationship; some non-clients may also sue Scope: reasonably competent similar attorney SOC: degree of care, skill, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the jx, under the same or similar circumstances Breach of duty: Lawyers conduct falls below the standard of care of a reasonably competent similar attorney Causation But for the breach, no actual harm (must be actual cause) Plaintiff and type of harm are foreseeable (proximate cause) Actual/legally cognizable harm P must show a better result would have been obtained without attorney negligence
Applying Strickland to plea bargaining -- Case: Lafler v. Cooper (2012)
Facts: offered and rejected a plea offer that would've recommended a shorter sentence on bad advice from lawyer that Prosecution would not be able to prove intent to murder because he shot below the waist Deficient counsel: Bad advice during plea bargaining consideration Prejudice: A reasonable probability that the outcome of the plea process would have been different with competent advice Remedy: Reoffer plea But trial court still has discretion
Exceptions to Strickland -- Prejudice Presumed?
Government interference Absent lawyer/abandonment Case: United States v. Cronic (1984) Held hat a D did not have to prove prejudice in cases where defense counsel was absent at critical stages of a defendant's trial Case: Burdine v. Johnson -- lawyer fell asleep in capital murder trial "The Sleeping Lawyer" Client convicted and sentenced to death; do we presume prejudice when counsel sleeps through major portions of the guilt innocence phase of a capital murder trial? YES. In several sleeping lawyer cases, lower courts have refused to hold that a defense lawyer who has fallen asleep gives rise to a presumption of prejudice without regard to what was occurring when the lawyer nodded off. Intoxicated or high lawyer -- is unconscious / asleep counsel the same? Courts have said different so you have to show prejudice in those cases. Conflict of interest (sort of)
Causation of Harm Case -- Garcia v. Kozlov, Seaton, Romanini & Brooks, PC
Holding: Accepting a settlement does not bar a client's legal malpractice claim against a lawyer
Lawyer on inactive status or suspended/disbarred practicing -- cannot practice; is a UPL
Inactive -- likely moved and now pays lower bar fee to keep up admission (weatherby in NJ) Disbarred/suspended/probation -- practice would consequence losing license totally Foreign jurisdictions
MR 5.5 Practice of Law
Intentionally does not provide a uniform definition of practice of law States are left to define practice of law UPL statute is Ark. Code Ann. §16-22-501 UPL statute in Georgia is incredibly broad -- "any action taken for others in any matter connected with the law."
MR 8.4 Misconduct
It is professional misconduct for a lawyer to: (a) violate or attempt to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; © engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration to justice; € state or imply an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or (g) 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 states in conduct related to the practice of law.
MR 8.4(g) Bias
It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knowns or should know is harassment or discrimination on the basis of race, sex, national origin... etc
Ethics Rules on Competence:
MR 1.1: "A lawyer shall provide competent representation to a client." MR 1.3 "A lawyer shall act with reasonable diligence and promptness in representing a client." MR 1.4 "Reasonable consultation and communication with client required"
In re Hamm: sets majority approach
No hard and fast rule that would bar applicant from admission solely on basis of a past crime; Several factors (11) are balanced to determine moral character Hamm Factors: Age, experience, and sophistication at time conduct occurred; How recently the conduct occurred; Reliability of information re: conduct; Seriousness of conduct; Consideration by applicant to laws, rules, and responsibilities at time of conduct; factors underlying conduct; cumulative effect of conduct; Evidence of rehabilitation; Applicant's positive social contributions since the conduct; Applicants candor in admissions process; Materiality of any omissions or misrepresentations.
The Unauthorized Practice of Law ("UPL") - Are UPL restrictions truly protective of the public, or do they represent monopolistic protectionism at its worst?
Nonlawyer doing legal work Lawyer admitted in State A but practicing in State B Lawyer on inactive status or suspended/disbarred practicing *MPRE often tests this by seeing whether you can catch that a lawyer is assisting a non-lawyer in UPL (which requires you know what non-lawyers can and cannot do).
Malpractice Insurance
Not mandatory in AR Disclosure Rules: Some states require disclosure of attorney does not have malpractice insurance AR does not require disclosure
Admission without Bar Passage: Reciprocal admission or transferred UBE scores
Other JX will accept the passage of bar from other state when passage was 5-7yrs ago
Ethics Opinions
Other substantive areas of law: Criminal Torts Contract Evidence Civ pro Constitutional (1st)
"Suit within a suit" -- P represents evidence that would have been submitted at trial had no malpractice occurred
Purpose: to show what would have happened but for the attorney's malpractice (thus showing causation) Proving malpractice: Expert witness required !!!!!! Experts are generally required on two, sometimes three, elements: (1) The application of the standard of care (what would a reasonably prudent attorney using that degree of skill and knowledge common to the profession have done under similar circumstances?) General rule: expert witness is required for a P to prevail in a legal malpractice case; expert witness is required to establish what "reasonable practice" is Exception: the "common knowledge" of the jury -- v blatant (Vandermay) (2) breach of that standard (is it standard practice to do what D did) (3) causation (is it really D's conduct that caused P's injury) No expert is required if an issue is within the "common knowledge" of jury -- aka when malpractice is so blatant
Defenses to Malpractice Immunities
Quasi-judicial function - Law clerks - Prosecutors - Guardians ad litem Federal Preemption - E.g., labor law
MJP - Rstmt. § 3
Rejects Birbrower Lawyer admitted in one state may practice in another "to the extent that the lawyer's activities in the matter arise out of or are otherwise reasonably related to the lawyer's practice" in her home state.
Breach of Fiduciary Duty
Rest. § 49 provides that "a lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client... and if that failure is a legal cause of injury..." Fiduciary relationships (such as lawyer client) are breached when the lawyer betrays the client's trust and confidence, such as by engaging in self-dealing, violating client confidences, or representing conflicting interests without the client's informed consent.
NOT UPL: Non-lawyer may:
Sell printed materials explaining procedure to the public Sell sample legal forms Engage in secretarial service, typing forms for clients, provided that the non-lawyer only copy the information given to her in writing by her clients
Federal Practice -- MR 5.5(D)
Services that the lawyer is authorized to provide by federal law
Model Rules: Text v. Comments --
Text of rule is authoritative Comments provide guidance on how the rule should be applied but they don't hold the same force as the rule itself NOTE: Many MPRE questions are based on hypotheticals discussed in the comments and the right answers are the guidance offered in the comments. So know them!
Special Responsibilities in MR 3.8:
The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; © not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused € not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action . . . refrain from making extrajudicial comments that can have a substantial likelihood of heightening public condemnation of the accused . . . (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Strickland v. Washington
Two part test D must show: *not an easy standard to meet; very few cases, only 4% of claims succeeded in the following few decades Counsel's performance was deficient (serious attorney error); AND Objective standard of reasonableness Strategic choices made after thorough investigation of law and fact are virtually unchallengeable This prejudiced the defense (defendant was deprived of a fair trial, which is a trial in which the result is reliable) "The defendant must show that there is a reasonable probability that, BUT FOR counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Defenses to Malpractice Statute of Limitations
When does a claim accrue -- aka when does clock start ticking? Upon discovery of malpractice or on date of occurrence? Majority tend is date of discovery<3 When might we toll the SOL? Maj trend recognizes continuous representation rule Continuous representation rule: the limitations period for bringing a legal malpractice action is tolled as long as the lawyer continues the representation that is related to the negligent act -- must be same matter The effect is that it tolls the SOL
Multi-Jurisdictional Practice (MJP) definition:
the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law.
MJP - MR 5.5(c)
© a lawyer admitted in another US jx... may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter (LOCAL COUNSEL); (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this... jurisdiction, if the lawyer... is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized (PRO HAC VICE) (3) are in or reasonably related to pending or potential arbitration, mediation, or other ADR proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice... [rejects Birbrower]; or (4) ... arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
