Professional Responsibility

Week 3

• Complaints are 95% against defense (not PD) attorneys.
• Improper advocacy: candor to the court, fairness to the other side, meritorious claims.
• Handout 1: composite of personality surveys
• Make a list of rules that we talk about that we find flaws with
• Preamble §20 ¶¶ 8, 9: use of "zeal." This gets quoted to justify scorched-earth tactics, but it really is about balancing zeal and respect for the system.
• The scope section (¶ 14): rules of reason. Also ¶ 19.
• The Peters case (p. 72): reporting can be stressful. Also note that misconduct does not only apply to lawyerly work. It can apply to any life activity that shows dishonesty, fraud, etc. Is the discipline imposed here too light? too heavy?
• Rule 8.3. When do you have to report? To whom? "The appropriate professional authority." The timing of being honest is a fascinating topic.
• The confidentiality exception to 8.3 rarely controls.
• 13% of complaints come from opposing counsel in WI; we don't have the IL culture of fearing we'll be disciplined for not reporting. Probably that has never even happened in WI.
• Rule 5.1: more senior lawyers have more responsibilities.
• 5.2: the reverse of 5.1-- just because you were ordered to do something doesn't relieve you of responsibility
• Review of last week: the system is highly complex.
• Handout 2: "the real story" of Problem 1-3. It certainly seems like Helman gave Lenore an order to violate 1.1.
• In Wieder, the court says that firms can't terminate lawyers for whistleblowing, but the practical result is that Wieder doesn't want to report any more anyway. And that's only NY. In other states (IL included), there's no wrongful termination protection in such cases.
• Problem 1-4 : this is a violation of 8.4(c) at the very least.
• Handout 3: ethics opinion on reporting lawyer misconduct

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• Unauthorized practice of law. There is a large unmet need for legal services in our society. If inexpensive access to legal advice were available, it would be employed.
• Handout 4: Wis. Stat § 757.30. Unauthorized practice of law. Why should we prevent people from getting bad advice? Should the market not sort this out for us? Well, partly because there's no oversight: if they do a bad job, what sanctions do they face? None. They don't have the same responsibilities as lawyers.
• Note that a lot of what happens in court doesn't affect only the clients-- it can have repercussions for all of society.
• Advertising. Prior to 1977, it wasn't allowed. 7.1-7.5.
• 7.3: Solicitation is prohibited.