Professional Documents
Culture Documents
Introductions
Syllabus
review
and
course
expectations
What
are
ethics
Who
regulates
the
profession
Scope
Formation
of
ACR
Termination
and
withdrawal
6/4/11 2
Syllabus
Attendance
policy
Participation
and
discussion
In
class
or
take
home
exercises?
Yes
Quizzes?
Possibly
Mid-term?
No
MPRE
practice
exam?
Yes
Final
exam?
Closed
book
--
essay
and
m/c
6/4/11 3
substantial
instruction
in
the
history,
goals,
structure,
values,
rules,
and
responsibilities
of
the
legal
profession
and
its
members."
SECTION
OF
LEGAL
EDUCATION
AND
ADMISSIONS
TO
THE
BAR,
AMERICAN
BAR
ASSOCIATION,
STANDARDS:
RULES
OF
PROCEDURE
FOR
APPROVAL
OF
LAW
SCHOOLS
(2006)
What value does the rule protect or support? What assumptions are you making about how the
rules?
6/4/11
Client
centered
so
long
as
clients
means
and
ends
are
lawful,
lawyer
should
6/4/11
Legal
rules
should
promote
justice
&
fairness
Legal
rules
should
not
simply
to
serve
the
bar
Question
if
the
interests
of
attorneys
animate
the
rule
6/4/11 8
use
precise
language;
research;
utilize
facts
and
precedent;
construct
persuasive
argument
To
think
like
a
professional
Reect
on
the
kind
of
lawyer
you
want
to
be;
consider
the
social
and
cultural
impact
of
your
work;
utilize
your
moral
imagination;
be
mindful
of
the
balance
between
your
work
and
your
self
6/4/11 9
6/4/11
10
and professions
Courts (ethics rules, case law, Rules of Court) Legislature (developing bodies of law that govern
the practice) Bar Associations (admission, continuing education and discipline system)
6/4/11
11
profession
in
that
state
and
manage
the
state
bars
and
discipline
process
State
trial
and
appellate
courts
regulate
lawyers
and
operation
of
the
bar
through
Bus.
&
Prof.
Code
6000,
et
seq
Some
important
parts
of
the
State
Bar
Act:
Fee
agreements
The
lawyers
duty
of
condentiality
(6068)
was
dened
in
the
State
Bar
Act,
rather
than
in
the
California
Rules
of
Professional
Conduct
6/4/11 13
Mandatory
bars
Aka
integrated
bar
Majority
approach
in
the
US,
including
California
Minority
approach
Voluntary bars
6/4/11
14
6/4/11
15
Substantive
regulation
FTC
attempts
to
regulate
lawyers
as
creditors
of
clients
Court
rules
and
procedures
Federal
Rules
of
Civil
Procedure
regulates
the
advocacy
of
the
lawyers
appearing
before
the
court
6/4/11 16
commitments may regulate legal practice Because federal law is the supreme law of the land, these regulations may preempt traditional state-based regulations
6/4/11
17
aecting attorneys
Ineective
assistance
of
counsel
(6th
Amendment)
Limits
on
free
speech
of
lawyers
(1st
Amendment)
Advertising;
trial
publicity;
criticizing
judges;
judicial
campaign
speech
IOLTA
accounts
(5th
Amendment
takings
clause)
Prosecutorial
decisionmaking
(5th,
14th)
Privileges
&
immunities
(lawyer
residency
reqmts)
6/4/11 18
profession.
Its ethics rules are a model code that states are free
inuence
over
the
regulation
of
the
legal
profession
at
the
state
and
federal
level
ABA
Model
Rules
6/4/11 19
ABA Model Rules California Business and Professions Code California Rules of Professional Conduct
departs
from
the
Model
Rules
It
is
reasonable
to
expect
an
essay
question
will
test
the
CA-ABA
distinction
6/4/11 20
10
6/4/11
21
the
attorney
provides
the
service
and
attorney
either
agrees
or
fails
to
clearly
indicate
they
do
not
wish
to
represent
the
client
this
is
implied
assent
6/4/11
22
11
6/4/11
23
Mrs.
Togstad
sought
legal
advice
from
attorney
Miller
in
a
consultation
appointment
She
described
a
medical
malpractice
incident
concerning
Mr.
Togstad
Attorney
Miller
said
she
probably
didnt
have
a
case
Said
he
would
consult
with
his
partner
and
get
back
to
her
Since
he
never
followed
up
with
her,
she
assumed
his
initial
assessment
was
correct
and
she
did
not
bring
suit
against
her
husbands
physician.
24
6/4/11
12
By
the
time
Mrs.
Togstad
got
a
second
legal
opinion
it
was
too
late
to
sue
the
doctor
due
to
the
statute
of
limitations
Togstads
sued
attorney
Miller
for
malpractice
Court
found
an
ACR
existed
with
both
H&W,
elements
of
malpractice
met
and
awarded
$650K
In
groups
of
4,
discuss:
Was
this
a
fair
outcome?
Why
or
why
not?
What
should
Miller
have
done?
6/4/11
25
Not given an opinion and declined the case Encouraged her to get the advice of a
dierent
lawyer
(referral)
Reviewed
records
and
consulted
experts
before
advising
her
Encouraged
her
to
get
a
second
opinion
Sent
a
letter
memorializing
the
conversation
Could
have
cleared
up
misunderstanding
and
created a record
6/4/11
26
13
6/4/11
27
6/4/11
28
14
informed
consent.
See
Rule
1.2(c)
Lawyer
should
pursue
clients
matter
but
must
never
advise
client
to
commit
a
crime
or
fraud.
See
Rule
1.2(d)
It
is
appropriate
to
give
your
opinion
on
the
likely
of decisionmaking?
6/4/11
30
15
By
client
As
determined
by
case
law
Can
re
for
any
reason
and
for
no
reason
Even
for
some
discriminatory
reasons
depend
on
applicable
law
Client
with
diminished
capacity
may
lack
capacity
6/4/11
31
other governing law (Rule 1.16(a)(1)); or Lawyers physical or mental condition materially impairs the lawyers ability to carry out the representation (Rule 1.16(a)(2)); or The lawyer is discharged (Rule 1.16(a)(3)).
6/4/11
16
the
interests
of
the
client
(Rule
1.16(b)(1))
Client
persists
in
conduct
the
lawyer
reasonably
believes
is
criminal/fraudulent
(Rule
1.16(b)(2))
Client
has
used
lawyers
services
to
perpetuate
a
crime
or
fraud
(1.16(b)(3))
Client
insists
upon
action
that
is
repugnant
to
the
lawyer
and
with
which
the
lawyer
has
a
fundamental
disagreement
(1.16(b)(4))
6/4/11 33
and
was
warned
that
the
lawyer
would
withdraw
if
the
breach
was
not
remedied.
(Rule
1.16(b)(5))
Representation
will
unduly
burden
the
lawyer
nancially
or
the
client
has
rendered
the
ACR
unreasonably
dicult
(Rule
1.16(b)(6))
Other
good
grounds
(1.16(b)(7))
CA
RPC
at
3-700
(C),
provide
similar
grounds
6/4/11
34
17
Death
or
incapacity
of
client
Court
orders
termination
of
the
ACR
When
lawyer
changes
rms
Typically
results
from
an
order
granting
disqualication
Client
has
the
right
to
decide
who
will
continue
with
the
ACR
Many
recommend
the
departing
lawyer
and
the
prior
rm
write
a
joint
letter
asking
the
client
to
decide
who
will
represent
it
going
forward
6/4/11 35
any
work
for
a
long
time?
How
long?
Episodic
clients
may
have
reasonable
expectations
If
the
ACR
is
ongoing,
then
the
attorneys
duty
to
the
current client remain in eect (so does liability for any failure to perform
18
6/4/11
37
Duties
of
Attorney
Competence
(Rule
1.1)
Diligence
(Rule
1.3)
Communication
(Rule
1.4)
Review
components
of
B&PC
6068
Condentiality (Rule 1.6, 1.9) and privilege The entity as client (Rule 1.1)
6/4/11
38
19