Professional Responsibility

Week 1

• Handout 1: New Rules for Federal Contractors. There is some notion of professional conduct even in non-regulated trades.
• Ingredients in a profession: a set of standards, and licensing.
• Legal service is no longer purely a noble calling; it has transformed to more of a business.
• Note that professional responsibility classes, and the imposition of rules of conduct, are largely a response to Watergate. This is cause to think carefully about why we have specific rules: it's largely in reaction to some specific (and public) bad behavior.
• Handout 2: list of entry-level public sector jobs. Lawyers not working in private sector are happier.
• Why are solo and small-practice lawyers subject to more disciplinary issues? OLR (Schweitzer is a member of Office of Lawyer Regulation) notes that the majority of lawyers disciplined fit this category. One reason is that some of them just don't get along well with people (solo practicioners, esp.). They are solo because they don't work well with other people; people/communication skills might keep them out of trouble. So there's some self-selection. But more importantly these folks don't have a support system (ethics counsel, mentors, e.g.). So it's a good idea to join the county bar association or an inn of court, so you have a regular way of discussing things.
• Also, when trouble does arise, there's nobody coaching solo practitioners in how to respond properly, and this can exacerbate the situation (failure to cooperate).
• The lawyers who make the most money are the least happy; that's an interesting correlation.
• Large firms also may have technical resources to track potential conflicts (detective controls).
• Thinking in advance about the types of legal work we're most comfortable with can be a help; based on competencies/personality traits.
• Handout 3: Wisbar legal assistence program. Don't deal with problems via escapism (i.e., substance abuse).
• Handout 4: Livonia Goodall and Belle Case LaFollette. Very interesting women lawyers. Schweitzer wrote Fighting Bob: a Love Story (play about Bob & Belle).
• Unlike other classes, this course is about us, not law.
• There's an imbalance of power in attorney-client relations. The client has money, but none of the knowledge, etc. Contracts for services are insufficient protection, because who writes the contracts? So one of the major reasons for the rules is client vulnerability.
• For the purposes of this class, "ethics" refers to observing the rules; "morality" deals with doing what is right. We'll mostly be dealing with ethics.
• This will be on the exam:How many states have adopted the ABA model code? Zero. So how many attorneys are subject to it? None.
• SCR (Supreme Court Rules) ch 20: this is the adopted ABA code. The green book has the WI rules, the WI and the ABA comments. But there are differences, so the ABA Comparison file shows the differences. It shows every difference (including capitalization, etc.). 80% of the time, the WI rule is fine. But not always, so have this file with us at all times. Note the copyright disclaimer at the end: there's a license agreement of sorts.
• The rules themselves are the only enforceable things, but the comments are an interpretation of the rules. Violating a comment isn't a problem, but it probably has something to do with breaking a rule.
• SCR 20:1.1: Comment 2 - this grants the lawyer the authority to take on a case without knowledge of a specialized area, as long as you get up to speed. In other words, once you get your license, you can practice in any area, so long as you make yourself competent. This is uncomfortable: you might be able to read the materials in a short time, but it might take 6 months or more to get actually competent.
• SCR 20:1.1: Comment 6 - Is CLE the best way to maintain competence? Is the number of classes really relevant to anything? This is perhaps a racket for the bar. It's an opportunity to maintain competence, and an excuse to make time for it; so it's good in that respect.
• SCR 20:1.1: Comment 5 - It's possible to make an agreement with the client that limits the scope of representation. This is an important one.
• Problem 9-3: We read our formulations of the problems.
  • Argument against spreding one's self too thin: not getting the best outcome for clients. Maybe even presenting cases without merit. Also, it's a violation of 20:1.1 (requirement of competency; solution is to make an agreement limiting the scope of representation).
• Handout 5: private reprimand record. Private reprimands are nice and simple, generally. Bigger reprimands tend to have multiple issues. 00-02: about $4K to DHFS for failing to know what he was doing. 94-27: a more egregious violation.
• Admission to the bar:
  The ABA is a private trade association. As we read through the text, we'll see it play various different roles with respect it its relation to attorneys and society.

  ALI's restatement of the law governing lawyers: a useful research tool, but not much more than that. Won't be cited much here. Good for comparing the practices of various states.

  Admission to the bar is controlled by the Supreme Court. So is regulation. The Board of Bar Examiners and the Office of Lawyer Regulation. BAPR: Board of Attorneys and Professional Responsibility (prior name of OLR). Board of Bar Examiners also tracks CLE, for whatever reason.

  The State Bar, like the ABA is private, not related to the Supreme Court, even though there's obviously a lot of interaction.

• Side note: some of SOX regulates attorneys. This is an innovation.
• SCR 28:8.1: the only rule that applies to non-lawyers (bar applicants). Obligation to be truthful; not necessarily to volunteer facts.
• Problem 1-1: it turns out that minor drug use will not be a problem, but dishonesty is a major one. Alcohol assessments are a more important concern: OWI will trigger this.
• Handout 6: Wis Bar application
• Handout 7: Rules for the board of bar examiners