PROFESSIONAL RESPONSIBILITY

Professor Powers

Professionalism

Roscoe Pound: “. . . pursuing a learned art as a common calling in the spirit of public service. . .”

Four elements: Intellectual training, complex judgment Trust of clients Clients and public over self-interest Self-regulating

Why does the legal profession have an “image problem”?

A. Lawyers are bad people.

B. Lawyers are people.

C. Lawyers are amoral.

D. Lawyers are inconvenient.

A. Lawyers are bad people

Isn’t that the assumption of a lot of lawyer jokes?

B. Lawyers are people

Sure, some lawyers do bad things. So do lay people.

People notice when lawyers do bad things. Lawyers have more chances to do certain

bad things. Lawyers have many potential ways to get in

trouble.

Areas of concern for attorneys Discipline

Rules Main focus of course, but more is involved

Civil Liability Malpractice Liability to non-clients Not governed by rules, may be related

Criminal liability Subject to same laws everybody else is No immunity because lawyer – and people notice missteps Practice can create additional risks Criminal actions can affect discipline Some statutes specifically for lawyers

C. Lawyers are amoral.

Lawyer as “hired gun” Conflicting duties/loyalties – Preamble –

responsibilities to: Clients The legal system – officer of the court Attorney’s own interests and values

Want to earn a good living – have a good life Be a good person Contribute to society

Inevitable conflicts – What to do? Danger in leaning too much to any one interest

D. Lawyers are inconvenient

“The first thing we do, let’s kill all the lawyers.”

William Shakespeare

King Henry VI

Can we improve image?

Some of problems inherent Lawyers on both sides – “good guys” and “bad guys” Part of dignity of profession – independence

Some ways to improve Get out (or reform) “bad apples” Good system of rules Better training

What do we mean by better training? Why is Professional Responsibility a required course? What other requirements are there?

Service in the Public Interest

Duty to perform Pro Bono work “Public service” aspect of professionalism

Rule 6.1 {Note: not in Texas Rules}

Not really a rule “Every lawyer has a . . . responsibility . . .” “A lawyer should aspire to render . . .”

Not mandatory – so what’s the point??? “Rule” much more detailed Not enforced through discipline

What is pro bono?

To people of “limited means” To charities, etc., that address needs of

people of “limited means” No fee or substantially reduced fees to

appropriate people or groups Participation in “improving the law.” Should make financial contributions. Can’t become pro bono after the fact.

Mandatory Pro Bono Should Pro Bono be mandatory?

Arguments for? Arguments against?

Will it be mandatory? If so, what kind of system should be adopted?

Buy-out option? Exceptions? Civic volunteers?

Note: Mandatory reporting different from mandatory pro bono Schwarz v. Kogan – Reporting requirement upheld Gives information and encourages pro bono

Texas has voluntary reporting and contributions What about pro bono as a condition of graduation?

Rule 6.2 – Accepting appointments

Lawyer should not avoid appointment except for good cause (not just because unpopular)

Good cause: Would result in violation of rule or law Unreasonable financial burden So repugnant impairs relationship or ability to

represent client. Texas has this rule also.

Note on Fighting Bias and Prejudice

No Model Rule Comment to Rule 8.4

Manifestation of bias and prejudice is violation . . . If prejudicial to the administration of justice.

First Amendment concerns Is rule unnecessary?

No bias? Covered by other rules/laws?

Is this part of professionalism?

Texas Rule 5.08 A lawyer shall not willfully, in trial,

manifest bias or prejudice towards person in proceeding based on race, color, national origin, religion, disability,

age, sex or sexual orientation. Does not apply to

decision whether to represent person, jury selection, confidential communications.

Does not preclude advocacy necessary to address substantive or procedural issues conducted in conformity w/ applicable rules, rulings, and orders.

Rules for lawyers

Who makes the rules? Supreme Court of Texas

Part of judicial branch Bar votes Court promulgates

Legislature Statutes affecting attorneys Public policy issues

Background

1908 Canons 1970 Model Code

Disciplinary Rules – DRs Ethical Considerations – ECs

1983 Model Rules Adopted in some form by most states Adopted in Texas, with variations

Ethics 2000

Other Sources

Restatement (Third) of the Law Governing Lawyers

Ethics opinions ABA/States Not usually binding

No sanction for “violating” opinion Opinion might persuade court what rule means

Quality Control for Attorneys

Make sure only licensed attorneys practice law Unauthorized practice rules

Make sure licensed attorneys are competent Admission controls

Make sure licensed attorneys stay competent Discipline, CLE, etc.

Controlling admissions

Legal education Bar exam MPRE Character and fitness Note: Texas is integrated bar

See Gov’t Code 81.102 – may not practice law unless member of the bar

Helpful web sites

www.ncbex.org – MPRE www.ble.state.tx.us – Texas admission

requirements www.texasbar.com – Information about state

bar, attorneys, rules www.abanet.org – Information about model

rules, state adoptions www.txethics.org – ethics opinions and more STANLEY

In re Application of Chapman

Applicant applied for admission. First approved RE character and fitness Took and passed bar exam Then report regarding

legal problems. Not allowed to apply

for admission until 1995.

Reasons for decision Track record of dishonesty

Wasn’t this in business matter? Hasn’t he changed? Wasn’t he forthcoming?

Who has burden of proof? Once issue raised, applicant must prove

Why is Supreme Court making decision? What will change between now and 1995? Why is character and fitness part of the admissions

process? Are state bars stricter with admissions than

discipline? Should they be?

In re Hamm

Hamm murdered two college students, execution style in 1974. Sentenced to “life” in prison. Graduated summa cum laude

from Arizona State University. Married 2nd wife.

Paroled in 1992. Graduated from ASU College of Law.

Passed Arizona bar exam. Denied admission by Character and Fitness Committee.

What is appropriate way to consider application?

Factors to consider: Age, experience, etc. at time How recent Reliability of information Seriousness of conduct Applicant’s consideration of law and rules at time Factors underlying conduct Cumulative effect of conduct Evidence of rehabilitation Positive social contributions since conduct Candor in process Materiality of omissions or misrepresentations

Other admission issues: Should a person convicted of murder ever be

admitted to the practice of law? Why is candor so important in the process? Is law school conduct relevant? Note 5 –

Clark – can’t ask about previous counseling – question improper as framed

But must be currently fit If out of state – may have pro hac vice admission

Temporary, often with local counsel Comply with local rules

Some states have provision for reciprocal admission

Rule 8.1

Applicant or lawyer In connection with admission

or a disciplinary matter Shall not

Knowingly make a false statement of material fact Fail to disclose a fact to correct misapprehension,

Or to respond to lawful demand for information, unless protected by 1.6