Transcript Model Rules of Professional Conduct

Model Rules of
Professional
Conduct
Culture of Law
Eileen Doyle Crane, J.D.
History of the Rules
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1836
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1854
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1887
1908
1913
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1919
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1922
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1958
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1964
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50 resolutions, Hoffman, “A Course
of Legal Study,” 2d. ed.
Sharswood lectures, published as
“Professional Ethics”
Alabama Bar Ass’n, Code of Ethics
ABA adopted Canons of Ethics
ABA Standing Committee on Professional Ethics
established
Name changed to Committee on Professional
Ethics and Grievances
Role expanded to include issuing opinions on
professional conduct
Committee split into Committee on Professional
Grievances & Committee on Professional Ethics
House of Delegates created Special Committee on
Evaluation of Ethical Standards to assess need to make
changes in Cannons
History of the Rules
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1969
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1971
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1977
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1983
1983-2002
1997
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2000
2002
Model Code adopted by House of
Delegates
Name of committee changed to
Committee on Ethics and Professional
Responsibility
Commission on Evaluation of
Professional Standards created
Model Rules adopted by House of Delegates
Rules and comments amended 14 times
Commission on Evaluation of the Rules of
Professional Conduct created
Commission on Multijurisdictional Practice created
House of Delegates adopted amendments to 5.5
and 8.5
Scope of Rules
 Client-Lawyer
 Counselor
 Advocate
 People
other than clients
 Law Firms and Associations
 Public
 Legal Services
 The Profession
Rulemaking Process
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Commission to make rule changes appointed
Charge to address specific issues
ABA Model Code of Professional Responsibilities basis
Judicial decisions evaluated
Drafting process
Comment period
Debate
Public hearings
Evaluation of comments
Final draft submitted to House of Delegates
Debate
Voting
Publication and widespread distribution
Sections
 Client-Lawyer
1.0-1.18
 Counselor
2.1-2.4
 Advocate
3.1-3.9
 People other than clients
4.1-4.4
 Law Firms and Associations 5.1-5.7
 Public
6.1-6.5
 Legal Services
7.1-7.6
 The Profession
8.1-8.5
Client-Lawyer Relationship
 1.1
 1.2
 1.3
 1.4
 1.5
 1.6
 1.7
 1.8
 1.9
Competence
Scope and Authority
Diligence
Communication
Fees
Confidentiality
Conflict of Interest, Current Clients
Conflict of Interest: Current Clients
Duties to Former Clients
Client-Lawyer Relationship
 1.10
 1.11
 1.12
 1.13
 1.14
 1.15
 1.16
 1.17
 1.18
Conflict of Interest: General Rules
Former & Current Gov’t Employees
Judge, Arbitrator, Mediator, 3rd Party
Organization as Client
Client with Diminished Capacity
Safekeeping Property
Declining/Terminating Representation
Sale of Law Practice
Prospective Clients
Lawyer as Counselor
 2.1
 2.2
 2.3
 2.4
Advisor
Deleted
Evaluation for 3rd Parties
Serving as 3rd Party Neutral
Lawyer as Advocate
 3.1
 3.2
 3.3
 3.4
 3.5
 3.6
 3.7
 3.8
 3.9
Claims and Contentions
Litigation
Candor
Fairness
Impartiality
Publicity
Witnesses
Prosecutors
Nonadjudicative Proceedings
Transactions w/Non-Clients
 4.1
 4.2
 4.3
 4.4
Truthfulness
Communication with Represented
Dealings with Unrepresented
Rights of Third Persons
Law Firms & Associations
 5.1
 5.2
 5.3
 5.4
 5.5
 5.6
 5.7
Partners, Managers, Supervisors
Subordinate Lawyers
Nonlawyer Assistants
Professional Independence
Unauthorized/Multijurisdictional
Practice of Law
Restrictions on Practice
Law-Related Services
Public Service
 6.1
 6.2
 6.3
 6.4
 6.5
Pro Bono Service
Appointments
Memberships
Law Reform Activities
Legal Services Program
Communications
 7.1
 7.2
 7.3
 7.4
 7.5
 7.6
Communications
Advertising
Contact w/Prospective Clients
Practice & Specialty
Name & Letterhead
Political Contributions
The Profession
 8.1
 8.2
 8.3
 8.4
 8.5
Bar Admissions & Discipline
Judicial & Legal Officials
Reporting Misconduct
Misconduct
Disciplinary Authority
Examples of Rules
1.16.b.
….a lawyer may withdraw from representing a client if:
1) withdrawal can be accomplished without material
adverse effect on the interests of the client…..
 2.1 Comment 5
In representing a client, a lawyer shall exercise
independent professional judgment and render candid
advice. In rendering advice, a lawyer may refer not only
to law but to other considerations such as moral,
economic, social and political factors, that may be
relevant to the client's situation.
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Examples of Rules
3.1
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact
for doing so that is not frivolous, which includes a good faith
arguments for an extension, modification or reversal of existing
law. A lawyers for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every
element of the case be established.
 4.1
In the course of representing a client a lawyers shall not knowingly:
a) make a false statement of material fact or law to a third person
; or fail to disclose a material fact when disclosure is necessary to
avoid assistant a criminal or fraudulent act by a client….
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Examples of Rules
 5.2.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.
 6.1
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.
Examples of Rules
7.1
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer’s services, A communication is
false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement
considered as a whole not materially misleading.
 8.1
An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or in connection
with a 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 respo9nd to a
lawful demand for information from an admissions or
disciplinary authority…..
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MPRE
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The purpose of the Multistate Professional Responsibility
Examination is to measure the examinee's knowledge and
understanding of established standards related to a
lawyer's professional conduct
Three times a year: March & August & November
Early registration $63; late registration $128
100 questions
Scored from 50 (low) to 150 (high). The mean (average)
scaled score was established at 100, based upon the
performance of the examinees who took the MPRE in
March 1999
Each state sets passing score
Must take and pass to be sworn into the bar after passing
the bar exam in a state
MPRE Sample Question
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Lawyer Lubner is defending client Marine Supply, Inc.
in a civil action brought by the State Attorney General
under the State Corrupt Practice Act of 1931. That
statute makes it a civil offense for any person or
business entity to bribe3 or give a kickback to a state
official. The statute authorizes fines of up to the $100K
per transaction for any violation. Marine Supply has a
strict corporate policy that prohibits its employees from
bribing or giving kickbacks to anyone. Employees
who violate the policy are subject to immediate
discharge and are required to indemnify Marine
Supply for any loss it suffers as a consequence of the
violation.
MPRE Sample Question
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The Attorney General has noticed the depositions of
dozens of Marine Supply employees, including one
Dan Dowling. Prior to his recent retirement, Dowling
was the sales manager of Marine Supply. Lubner met
with Dowling to prepare him for his deposition. At the
outset of the interview, Lubner agreed to represent
Dowling without charge, and Lubner told Dowling
that anything said between them would be
confidential. During the interview, Lubner asked
Dowling whether he had ever bribed any State A
officials. Dowling responded: “Certainly. All our
competitors were doing it too, and I had to do it to
sell anything to the state.”
MPRE Question Posed
What
course of action
MAY Lubner pursue at
this point?
MPRE Answer Choices
 1)
Withdraw from the case and inform the
Attorney General what Dowling said.
 2) Withdraw from the case and keep Dowling’s
statement in confidence.
 3) Withdraw from representing Dowling and
inform Marine Supply what Dowling said.
 4) Continue with the case, inform Marine Supply
what Dowling said, and advise Marine Supply to
seek prompt settlement.
MPRE Correct Answer
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2
Lubner may withdraw from the case and keep
Dowling’s statement in confidence. When an
organization is the lawyer’s client, the lawyer owes a
duty of loyalty to the organization. When the interests
of the organization and its constituents conflict, the
lawyer should remind the person that the lawyers
represents the organization and not the person. It
would be appropriate for the lawyer to remind the
person that communications between them may not
be protected by the attorney-client privilege, and that
the person may want to obtain independent counsel.