Professional Responsibility
Week of 7-21-08
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