Things to Consider

Abstract

o 5) Code of Professional Responsibility ("Old Code"). California is still based on it, and New York uses pieces of it. All states other than CA use Model Rules to some extent (though no state has adopted them in entirety) o 6) State legislatures may occasionally enact statutes governing legal practice o 7)Federal agencies, such as the SEC, have enacted regulations governing practice § Why take a course on professional responsibility? o 1) To teach the purpose of the rules, which is: o a) Codify a mandatory set of requirements/standardize rules for lawyer conduct (though all states have made their own modifications to the rules) o b) Establish different standards for different roles of lawyers (advocate: assert's client's position; advisor: explains practical implications; negotiator/mediator: resolve conflict within bounds of profession/society) (Preamble to rules) o c) Establish standards for discipline, not liability o d) To protect clients, provide certainty/predictability to lawyers (and keep out bad lawyers), give legitimacy and boost to profession o 2) To learn that rules are changing o a) Lawyers' duties regarding the disclosure of confidential information have become more permissive, and today lawyers may have obligation to disclose confidential information in certain circumstances o b) There is a change from client loyalty to upholding the justice system o 3) Because consequences of rule violations are very high (from loss of face to jail) o a) (Diggs: One lawyer overbills and all partners are jointly and severally liable) o b) (Mohamat: One lawyer defrauds clients for millions, and all partners are jointly and severally liable-cannot use bankruptcy or insurance because it concerns fraud) o c) (Ex: Secretary mistakenly puts millions in firm's account instead of client's, and client eventually gets all money back. Lawyer still suspended for not supervising) § Gaining information from a competitor (just a hypothetical he posed on the first day) o a) Could misrepresent who you are (say you are reporter), eavesdrop (at trade show), pay an employee for information, hire an employee away for information, use a customer, pretexting (friend them on facebook) o b) Ethics opinion says it is acceptable to use public information § *Note: When presented with fact patterns, he likes when you raise (and neg) ALL potential possibilities § Key points for condensed outline o 1) Be careful of mental states o 2) Keep eye out for generally applicable rules (eg, lawyer should not lie, principal/agent, confidentiality problems) o 3) Make sure all rules from syllabus end up in the outline