PROFESSIONAL RESPONSIBILITY
W.B. Fisch Winter 2008

Housekeeping, and Assignment #1

  • Subject: principally the law of professional responsibility for lawyers -- rules and regulations governing their conduct in their professional roles
  • Rules reflect potentially conflicting duties owed to at least four constituencies:
    • the public
    • the courts
    • specific clients
    • other lawyers
  • Rules are made and/or enforced by a variety of agencies
    • legislatures
    • courts deciding specific cases
    • courts as regulators of the legal profession
    • bar associations
      • formulate proposed rules of conduct (esp. ABA)
      • assist in disciplinary enforcement process (state and local)
  • Most comprehensive source: ABA’s Model Rules of Professional Conduct

·  Format of course:

  • 1. 3 hour exam, closed book except for Rules Pamphlet, all essay and short-answer
  • 2. Class discussion focusing on problems in casebook. Class divided into groups, each assignment assigned to a particular group to be called on concerning that assignment. (to be posted shortly after class, will start in the second week)

·  Attendance:

  • 1. Maximum number of absences, regardless of reason: 9. If you are absent 10 times, you are subject to dismissal from the course.
  • 2. Unexcused absence when your group is "up", including when it is still up (sometimes the assignment will not be finished at the end of the session): 2 points deducted from final grade.

·  Suggested Secondary Literature

  • ABA/BNA LAWYER'S MANUAL ON PROFESSIONAL CONDUCT (1984-present, ethics opinions from ABA and every state/local com'tee) (in Practice stacks)
  • HAZARD & HODES, THE LAW OF LAWYERING (3d ed. 2001, with annual supplements) (on reserve)
  • ABA's ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT (5th ed. 2003)
  • MISSOURI BAR JOURNAL, publishes formal opinions of Mo. Adv. Committee
  • American Law Institute, RESTATEMENT OF THE LAW GOVERNING LAWYERS (2000, with pocket parts)

 

Questions concerning Problem p. 1 and SPRUNG p. 2

1. What is the source of the difficulty?

    a. carelessness on the part of the opposing lawyer or his staff?

    b ignorance or carelessness on the part of the trial judge?

    c. rigid, formalistic rules of law (here procedural) that are "traps for the unwary"?

2. Why should the "innocent" party's desire to take advantage of these mistakes present an ethical issue for that party's lawyer?

    a. Does it represent a disregard of "professionalism"? What is that?

    b. Should a lawyer protect her "brother lawyer" against malpractice liability for his carelessness?

        i. what opportunities were presented in each situation to do this?

        ii. what consequences would follow for the "innocent" lawyer's client?

    c. Should the lawyer protect the judge or the system from error? From an erroneous judgment?

3. Are there specific ethical obligations to the client that militate against correction?

    a. Model Rule 1.2 on who decides as between lawyer and client

    b. Model Rule 1.6 on the obligation of confidentiality