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Professional Responsibility Outline-Professor Clay Smith

Professional Responsibility Outline Spring 2011 Professor Clay Smith

Introduction to the Course Rule 1.5: Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to …

Reporting Other Lawyer’s Misconduct

Reporting Other Lawyers’ Misconduct (MR 8.3)
Subordinate Lawyers (MR 5.1-5.3)
Confidentiality (MR 1.6)

Rule 8.3 : A lawyer who knows that another lawyer has committed a violation for the Rules of Professional Conduct that raises a substantial question as to

Model Rule 5.1 – 5.3 : Duties of Supervision

Model Rule 5.1 – 5.3 : Duties of Supervision
Rule 5.1 : Responsibilities of partners, managers, and supervisory lawyers
- Need to be systems in place to make sure that lawyers are following the rules.
- (a) Need procedures for detecting and

Attorney Client Privilege

Attorney Client Privilege
- prevents party from questioning client or lawyer about representation issues
Work-Product Doctrine
- the things that a lawyer creates in preparing to defend the client
Confidentiality
Rule 1.6 : prohibits lawyers from disclosing information related to the

Lawyer’s Duty of Competence

Lawyer’s Duty of Competence

MR 1.1 : A lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
If no harm from a breach, there is no malpractice

Lawyer’s Duty of Candor

Lawyer’s Duty of Candor : Adverse Legal Authority
- MR 3.3(a)(2)
- A lawyershall not knowingly fail to disclose to the tribunal :
  - legal authority in the controlling jurisdiction
  - known to the lawyer to be directly adverse to the position of

Legal Ethics: Lawyer’s Duty of Candor

Legal Ethics: Lawyer’s Duty of Candor

Duty of Candor
- Lawyer may not knowingly make a false statement of fact or offer false evidence to a tribunal
- when a lawyerknows that a person intends to engage in criminal or

Legal Ethics: Frivilous Lawsuits

What does it mean to be a good person in an “adversary” system?
Rules of Litigation
- Rule 11
- Courts inherent power
- litigation claims against lawyers
- professionalism, “civility” codes
- Model Rule 1.3
- 3-series rules
- 4-series rules
- 8.4 c professional misconduct rules

Legal Ethics: Lawyer’s Communication with Third Parties

When lawyers communicate with third parties – opposing counsel, court staff
Rule 4.1 (a)
- applies only to factual statements
- “in the course of representing a client”
- no attorney-client representation then may be covered by MR 8.4 ©
- “knowingly” can be

Legal Ethics: Fee Splitting

Fee Agreements
- Quantum meruit
Types of fee agreements : hourly, flat fee, hybrid, contingent
Fee agreement should state hourly rates to be charged (incentive fee if any and success fee if any) and expenses (preferably under Model Rules

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