I. Introduction A. Basic Terms: 1. Professional responsibility = the law of lawyering &/or the regulation of lawyers 2.

professional discipline = reprimand, suspension, disbarment or other punishment imposed for violating
disciplinary rules 3. disciplinary rules = internal regulatory standards set by the highest court of any state (often delegated to the state bar associations) i. violation of disciplinary rule subjects a lawyer to disciplinary action (censure, private/public reprimand, suspension, disbarment) but not to civil liability ii. violation of a disciplinary rule is NOT conclusive proof of malpractice for civil liability but it is often relied upon by cts. as evidence iii. cannot avoid disciplinary rules by settling with the client for malpractice suits

B. Basic Theme: Agency 1. A lawyer is an agent i. A lawyer is NOT a principal a. what the lawyer does is about the client & furthering the client's interests -- not the lawyer's ii. Lawyer is agent of client AND of the lawyer's firm a. lawyer is agent of entity client not those persons who run the entity 2. Lawyer is NOT a tool - but an agent i. an agent is someone who bears moral & legal responsibility for their actions (a tool has no such responsibility) C. History / Sources Used for General Study 1. ABA Canons of Professional Ethics (1908) i. not black letter legal rules -- just set out general guide for lawyers ii. aspirational/idealistic iii. recognized that lawyers couldn't comply w/all of them all of the time 2. ABA Model Code (1970) i. recognized distinction btw ideals (Canons 1908) & setting minimum standards (Code) ii. divided into a. ethical considerations 1. not supposed to vary legal duties as stated the disciplinary rules but were used to clarify abiguity in the black letter law which led to unpredictability re: professional discipline b/c sometimes inconsistent ethical considerations made it impossible to settle on a bottom line rule b. canons c. disciplinary rules (grouped by subject matter) 1. only legally enforceable rules 2. prohibited specifically described conduct iii. focus mostly on litigation & not much on counseling, drafting, planning & transactional matters iv. b/c of inconsistencies (see above) & lack of focus outside of litigation resulted in Model Rules 3. ABA Model Rules i. Kutak Commission (chaired by Robert Kutak) a. was controversial b/c substantial disagreement re: context of certain rules & also b/c nature of project seemed suspect ii. Structure adopted by Kutak Commission: a. regulatory in structure b. establishes minimum standard of conduct

c. did away with ethical considerations & statement of ideals "best practices" d. 100% made up of disciplinary rules 1. but still allowed for some discretion (may v. must) e. didn't touch on the morality of what lawyers should do iii. trend towards the MRs over the Code in the 1990s a. 43 states + DC are MR based b. 4 are code based c. Then there is C & NY 4. RST (3d) of the Law Governing Lawyers i. no 1st or 2d RST ii. value judgment re: legal rules a. where current law is good RST picks up the existing rule b. where law should be changed the RST takes a more forward-looking prospective

II. Regulation of the Legal Profession A. Law is a self-regulating profession (self regulation is a primary characteristic of professions) 1. Establishing rules of professional conduct: (Track One Inherent Authority) i. idea behind disciplinary rules is that the legal profession should be self-policing ii. policy: if the organized bar regulates the profession it will result in a. an increased respect for the bar b. enhance the legitimacy of the profession, & c. there will be less pressure for external regulation of the practice of law 2. Administer system of investigating & Imposing discipline for violation of disciplinary rules i. lawyers not just regulated by clients in civil suits ii. a lawyer cannot avoid discipline by paying back client or making client otherwise whole 3. Lawyers & judges have duties to be rats -- they must turn one another in 4. Track 2 inherent authority - ct.'s regulating of lawyers who appear before them i. sanctions on lawyers ii. disqualification of representation iii. allowing malpractice actions to go to jury B. Sources of Regulation 1. State Judiciaries: i. highest ct. of state has inherent power to regulate the conduct of lawyers practicing in the state (track one inherent authority) a. in exercising track one inherent authority it determines the rules of professional conduct b. generally delegated much of this power to state bar associations which establishes the rules of conduct & investigates/punishes violations ii. state disciplinary authority official committee, agency or state bar association empowered to draft & promulgate rules of professional conduct, regulate admission to practice & to mete out punishment for violations of disciplinary rules iii. track two inherent authority : inherent authority of all trial cts. to regulate the activities of lawyers
appearing before the ct.

2. Federal Judiciaries: i. SCOTUS ii. track two inherent authority : inherent authority of all trial cts. to regulate the activities of lawyers
appearing before the ct.

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a. Federal cts. have their own inherent authority to regulate the practice of lawyers who appear before them b. Federal cts. are not bound to apply the rules of the forum state in which they are located 1. 3 general approaches federal district courts follow: i. adopt ABA version of Model Rules ii. adopt forum state's version of the Model Rules iii. adopt idiosyncratic rules that aren't necessarily the same as ABA or state version of the disciplinary rules Administrative Agencies i. set rules for lawyers who practice before them ii. sets rules for lawyers who work for them American Bar Association/Bar associations: i. as stated above, state bar associations are often delegated the authority to promulgate the rules of professional conduct & investigate & mete out punishment for violations ii. will publish opinions re: how a given situation would be treated under disciplinary rules a. opinions NOT BINDING on a ct. in a malpractice, disqualification or other similar proceeding Generally Applicable Law i. source of legal authority (cases, statues, administrative regulations) that apply universally (regardless of whether someone is a lawyer) Track one inherent authority v. Track two inherent authority i. difference btw the state's highest ct. promulgating rules to govern the profession as a whole v. the individual ct.'s power to punish a lawyer for engaging in conduct that interferes w/that ct.'s ability to administer justice
disciplinary rules, this authority should prevent other branches of gov't from any jurisdiction from regulating the practice of law i. watered down version of the doctrine cts. may be the preferred regulators of lawyers but they share this power w/other branches of gov't

7. Negative inherent power doctrine if state cts. have track one inherent authority to promulgate

C. Admission to the Practice of Law (Bar Admission) 1. Track 1 inherent authority gives the highest tribunal in any state the power to establish rules & procedures re: admission of lawyers to practice i. but SCOTUS held that state requirements for admission to bar need to be rationally related to the practice of law a. What is rational? 1. graduation from ABA accredited law school 2. passage of bar exam 3. refusal to take an oath to uphold the state & federal constitutions 4. requirement that a lawyer maintain a bona fide office (not just a P.O. Box & a phone answering
service) w/in state has generally been held to be ok i. more substantial restriction on practice by out-of state lawyers have been struck down (a) cannot require a home address as a condition for bar admission (as opposed to business address) (b) cannot require experienced practitioners wanting to be admitted on motion to maintain a residence w/in in the state

b. What is not rational? 1. residency (see above) 2. U.S. Citizenship 2. Requirements for Admission (general/similar in all states)

i. graduation from an accredited law school a. usually ABA b. sometimes only accreditations by state agency ii. passing bar exam iii. character & fitness review a. part of bar admissions procedures b. set forth in state statutes c. generally looking for evidence of prior conduct that is probative of likely future violations of disciplinary rules 1. things that are probative (moral character re:) i. trustworthiness ii. propensity to lie iii. propensity to steal iv. propensity to cheat 2. 4 typical problematic things: i. pattern of law-breaking supporting the inference of recidivism/cavalier attitude toward the legal profession ii. smaller number of infractions revealing dishonesty or abuse of a position of trust (a) doesn't have to be criminal convictions school honor code violations count (b) lawyers have fiduciary relationships w/clients & thus have opportunities to abuse the asymmetry of power & knowledge btw lawyers & clients iii. evidence of neglect of financial responsibly (E.g. defaulting on loans, child support) (a) worry that those who've played fast & loose w/their financial obligations in past may be more likely in the future to dip into client funds to satisfy personal debts iv. failure to disclose information responsive to a question on the application (a) may care very little about the underlying offense but really care re: fucking with their admissions process 3. if have 1 -3 you may still be admitted but a closer look is taken & possibly a demand for evidence of rehabilitation 4. limits on the character & fitness review process i. Americans w/Disabilities Act not clear if states can deny admission basis of mental disability ii. can only deny admission basis of conduct that is germane to the practice of law (a) i.e. cannot deny b/c cohabitating w/a member of the opposite sex iii. 1st Am. may prohibit a state from denying admissions on the basis of past membership in a subversive organization (however can still compel the applicant to answer questions about that membership) D. Regulation After Admission (Bar Discipline) 1. Who regulates? i. the ct. in which the lawyer is practicing (Track 2 Inherent authority) ii. clients & 3Ps (not part of bar discipline - but is civil liability -- see below) iii. other lawyers & judges a. MR 8.3(a) when a lawyer has knowledge of another lawyer's violation of the rules or other
misconduct, a lawyer has a duty to report to the state disciplinary authority where such conduct raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer 1. MR 1.0(f) knowledge may be inferred from the circumstances b. duty to report on other lawyers is qualified -- no duty where:

1. the lawyer learns of misconduct in the representation of a client (professional duty of confidentiality trumps MR 8.3(a) 2. where lawyer learns of the misconduct in a lawyer rehabilitation program 2. Types of Conduct Which May Result in Disciplinary Action i. Acts not done in a legal capacity a. a lawyer can be disciplined for wrongful conduct even though not acting in capacity as lawyer IF
conduct functionally relates to her capacity to practice law 1. e.g. acts involving fraud, dishonesty, deceit, misrepresentation ii. criminal acts: not all illegal conduct can result in discipline

a. but can be subject to discipline where illegal act is one that is functionally related to the fitness to practice law 1. those which reflect adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respect b. discipline is inappropriate for violations of personal morality (i.e. adultery) c. examples: 1. fraud or breach of trust 2. willful failure to file an income tax return 3. serious interferences w/the administration of justice 4. violence especially where violence is quite serious d. patterns of repeated minor offenses if it indicates indifference to legal obligation iii. Violating a disciplinary rule a. assisting or inducing another to violate a disciplinary rule b. attempting to violate disciplinary rule 3. Types of Discipline for violating mandatory rule of professional conduct i. Private reprimand/censure ii. Public reprimand/censure iii. Suspension (for a finite period) iv. Disbarment E. Malpractice & Other Non-Bar Regulation of Lawyers 1. Disqualification by a ct. from representing a client 2. Malpractice Suits 3. Liability to 3Ps 4. Forced Return of Earned Att'y Fees F. Unauthorized Practice & Multi-Jurisdictional Practice III. Lawyer - Client Relationship - Overview & Formation/Termination A. Nature of the Relationship B. Formation of the Lawyer-Client Relationship C. Termination of the Att'y-Client Relationship IV. Structure of the Lawyer-Client Relationship A. Allocation of Authority B. Scope of Representation C. Limitations on Scope & Allocation D. Att'y Fees E. Transactions w/Clients F. Handling Client Property G. Representing Clients w/Diminished Capacity H. Duties Owed By the Lawyer to the Client (breach of such duty gives rise to malpractice liability)

1. The Four Duties: i. Care (see_____) ii. Communication (see_____) iii. Confidentiality (see_____) iv. Loyalty (see_____) V. Duty of Care (i.e. Duty of Competence & Diligence) VI. Duty of Communication VII. Duty of Confidentiality (& Attorney-Client Privilege/Work Product Doctrine ) VIII. Entity Clients IX. Conflicts of Interest Overview X. Conflicts of Interest - Current Clients XI. Conflicts of Interest - Former Clients XII. Conflicts of Interest - Interests of Third Parties XIII. Conflicts of Interest - Gov't Employees XIV. Conflicts of Interest - Conflicts w/Former Judges, Arbitrators, Attys XV. Litigation Duties XVI. Non-Litigation Att'y Roles & Duties A. Advisor to Client B. Evaluation for Use by Third Persons C. Lawyer as a Negotiator D. Lawyer as a Third-Party Neutral XVII. Lawyer Transactions w/Third Persons A. Truthfulness in Statements to Third Persons B. Communication w/Persons Represented by Counsel C. Dealing w/Unrepresented Persons D. Respect for Rights of Third Persons XVIII. Law Firms & Associations A. Terms & Definitions B. Responsibilities of Partners, Managers, & Supervisory Lawyers, C. Responsibilities of A Subordinate Lawyer D. Responsibilities Concerning Non-lawyer Assistants E. Prof