Presentation Transcript

1. Model Rules of Professional Conduct

   Culture of Law Eileen Doyle Crane, J.D.
2. History of the Rules 1836 50 resolutions, Hoffman, “A Course of Legal Study,” 2d. ed. 1854 Sharswood lectures, published as “Professional Ethics” 1887 Alabama Bar Ass’n, Code of Ethics 1908 ABA adopted Canons of Ethics 1913 ABA Standing Committee on Professional Ethics established 1919 Name changed to Committee on Professional Ethics and Grievances 1922 Role expanded to include issuing opinions on professional conduct 1958 Committee split into Committee on Professional Grievances & Committee on Professional Ethics 1964 House of Delegates created Special Committee on Evaluation of Ethical Standards to assess need to make changes in Cannons
3. History of the Rules 1969 Model Code adopted by House of Delegates 1971 Name of committee changed to Committee on Ethics and Professional Responsibility 1977 Commission on Evaluation of Professional Standards created 1983 Model Rules adopted by House of Delegates 1983-2002 Rules and comments amended 14 times 1997 Commission on Evaluation of the Rules of Professional Conduct created 2000 Commission on Multijurisdictional Practice created 2002 House of Delegates adopted amendments to 5.5 and 8.5
4. Scope of Rules Client-Lawyer Counselor Advocate People other than clients Law Firms and Associations Public Legal Services The Profession
5. Rulemaking Process 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
6. 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
7. Client-Lawyer Relationship 1.1 Competence 1.2 Scope and Authority 1.3 Diligence 1.4 Communication 1.5 Fees 1.6 Confidentiality 1.7 Conflict of Interest, Current Clients 1.8 Conflict of Interest: Current Clients 1.9 Duties to Former Clients
8. Client-Lawyer Relationship 1.10 Conflict of Interest: General Rules 1.11 Former & Current Gov’t Employees 1.12 Judge, Arbitrator, Mediator, 3rd Party 1.13 Organization as Client 1.14 Client with Diminished Capacity 1.15 Safekeeping Property 1.16 Declining/Terminating Representation 1.17 Sale of Law Practice 1.18 Prospective Clients
9. Lawyer as Counselor 2.1 Advisor 2.2 Deleted 2.3 Evaluation for 3rd Parties 2.4 Serving as 3rd Party Neutral
10. Lawyer as Advocate 3.1 Claims and Contentions 3.2 Litigation 3.3 Candor 3.4 Fairness 3.5 Impartiality 3.6 Publicity 3.7 Witnesses 3.8 Prosecutors 3.9 Nonadjudicative Proceedings
11. Transactions w/Non-Clients 4.1 Truthfulness 4.2 Communication with Represented 4.3 Dealings with Unrepresented 4.4 Rights of Third Persons
12. Law Firms & Associations 5.1 Partners, Managers, Supervisors 5.2 Subordinate Lawyers 5.3 Nonlawyer Assistants 5.4 Professional Independence 5.5 Unauthorized/Multijurisdictional Practice of Law 5.6 Restrictions on Practice 5.7 Law-Related Services
13. Public Service 6.1 Pro Bono Service 6.2 Appointments 6.3 Memberships 6.4 Law Reform Activities 6.5 Legal Services Program
14. Communications 7.1 Communications 7.2 Advertising 7.3 Contact w/Prospective Clients 7.4 Practice & Specialty 7.5 Name & Letterhead 7.6 Political Contributions
15. The Profession 8.1 Bar Admissions & Discipline 8.2 Judicial & Legal Officials 8.3 Reporting Misconduct 8.4 Misconduct 8.5 Disciplinary Authority
16. 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.
17. 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….
18. 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.
19. 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…..
20. MPRE 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
21. MPRE Sample Question 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.
22. MPRE Sample Question 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.”
23. MPRE Question Posed What course of action MAY Lubner pursue at this point?
24. 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.
25. MPRE Correct Answer 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.