Professional Responsibility

Week 8

• Handout 1: photocopy of the exam.
• Handout 2: the curve.
• Review: Rule 1.15: holding on to client money. The rule is complex. There are a lot of trust account violation cases; it seems like it's not too hard to get in trouble just by plain old mistake.
• Handout 3: Article on trust account record keeping requirements. Ledgers, disbursement records, reconciliation reports, etc. (not on exam)
• Handout 4: Reprimands regarding trust account violations. Using funds for your own benefit will generally result in at least a suspension.
• Rule 1.13: Organization as a client. The concept here is "who is the client?" The organization, or its constituents? The organization. Out loyalty is to the organizaiton (see Comment 1). Comment 2 grants the constituents confidentiality. ¶¶(b)-(e): how to deal with situations when there is conflict. Preferably reporting within the organization, but (¶(c)(1)) outside if necessary (i.e., if the top of the organization persists in violating the law in a way that will injure the organization).
• A lawyer is under an obligation to report violations of law within the organization. The lawyer may disclose outside the organization if top management are breaking the law in a way that might injure the organization.
• Note that just as with 1.6(b), here, disclosure is mandatory (whereas ABA is just permissive).
• Comment 3: the lawyer must abide by the organization's business decisions. Reporting can only happen with violation of law, not just bad business practices.
• ¶(d): disclosure is not appropriate in the midst of internal investigation (see comment 7). ¶(e), at the end of representation (withdrawal or discharge), the lawyer must report to the highest person in the org, not disclose outside the organization.
• ¶(f): make sure that individuals know they're not the client-- the organization is. ¶(g): you are allowed to go ahead and represent people within the organization as long as no conflict exists. If there is conflict, it can be waived by informed consent.
• Handout 5: sale of a law practice. someone is retiring, and they are selling the practice.
• Rule 1.17: you have to sell your whole practice (or at least an entire area of practice); you can not sell individual clients. See ¶(a): you have to cease to deal with this area, jurisdiction, or law in general. ¶(d), they can't pass the cost of the sale on to the clients that you acquired. This is sort of a rule from a different era, with all this emphasis on even-handedness and professionalism.
• Confidentiality! Yay! We've touched on this before, but now we're really going to get into it.
• Rule 1.6. It is almost inevitable that confidentiality gets violated: it is a consequence of being a lawyer and having friends.
• You might want even to ask your client whether certain things are public (i.e., the fact that I am representing you).
• The reason for this rule is the idea that candid communication will facilitate effective representation. There's a cost, though, and sometimes this seems pretty harsh.
• Note that 1.6 does not cover generally known information. Also, once you've filed pleadings, you can talk about it: facts that have been disclosed are fair game. Be careful, of course, regarding "facts" in dispute.
• "Hypothetical" in this context means "not enough information to identify the people involved."
• 1.6 is part of what turns you into a lawyer: a professional secret-keeper. This is surprisingly important-- it changes the way that you relate to others, because it places limits on what you talk about. Compliance means that the rule of being a lawyer is more important than conversation. Keeping secrets is not a small thing.
• Handout 6: reprimands regarding disclosure of confidences.
• Exceptions ¶(c)(5): to comply with other law or court lawyer. You MAY reveal (not MUST) to comply with other law or court order. So don't just give in-- at least try to protect the secret. ¶(c)(4): to defend yourself. ¶(c)(3): to get legal advice.
• ¶¶(b), (c)(1), (c)(2): the cases where you can disclose in order to prevent harm. Note that in WI, protective disclosure is mandatory.
• Handout 7: Interview with Armani re: Garrow.
• Handout 8: Code of Federal Regulation: attorney responsibilities viz. SoX. 17 CFR § 205. The federal government enters into attorney discipline-- they can't revoke a license (because they didn't issue it), but they bar practice in this area.
• Handout 10: privilege statute and work product
• Handout 11: Dudek - read this case
• Handout 12: story about confidentiality and death penalty