Professional Responsibility - Schnitze

Professional Responsibility - Schnitze - Professional...

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Professional Responsibility Outline, Fall 2005 Professor Tebbe For exam, consider the following: 1. Privileged? 2. Confidential? 3. No contact rule? 4. Does L have to tell C? – MR 1.4 5. Zealous representation (comments) 6. Duty of confidentiality? 7. Duty of loyalty? I. Introduction 1. Model rules are only advisory. Rules of lawyering is largely state law. 2. Two types of ethical obligations: a. To Client (C): Lawyer (L) is fiduciary of his C, whom he must therefore treat as he would himself rather than as he would treat another party to a normal arms-length K. b. To Court (ct) or Community: There are rules against allowing perjury and abusing pretrial discovery. 3. Where do “Ethics” Rules Come From? a. Inherent powers doctrine has left L regulation to courts. b. Sometimes, however, cts do uphold regulatory efforts of legislators. i. Ex. of Inherent Powers Doctrine: State ex rel. Fiedler v. Wisconsin Senate 1. Struck down legislation that imposed a continuing legal education requirements on attorneys who wished to be appointed as guardians ad litem. Ct held “once an attorney has been determined to have met legislative and judicial threshold requirements and is admitted to practice law, he or she is subject to judiciary’s inherent and exclusive authority to regulate practice of law.” ii. Irwin v. Surdyk’s Liquor (Minn. 1999) held statutorily imposed limitations on attorney’s fee awards violated separation of powers. iii. Newton v. Cox (Tenn. 1994) upheld legislation limiting attorney’s fees in medical malpractice actions. Statute, an exercise of “legislature’s police powers, intended to protect public,” did not “directly conflict w/ state Supreme Court’s authority to regulate practice of law.” c. Ethics Rules. i. Codes of ethics, under various names, and cases construing them, are main source of rules governing behavior of Ls. ii. These rules are merely “models” until some gov't institution adopts them. iii. 1983 – ABA House of Delegates adopted Model Rules of Professional Conduct . This assumes a “Restatement” format w/ black-letter rules followed by comments. Only text of each Rule is authoritative. 4. What are professionals? 1
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a. “Professionalism": Refers to a group… pursuing a learned art as a common calling in spirit of a public service. i. "Public service" - Representing indiv. Cs and advocating their interests in a professional manner. b. Sociologist Eliot Friedson’s definition of a “Profession”: An occupation, whose members have special privileges, such as exclusive licensing, that are justified by following assumptions: i. Subordinate self interest to C interest. ii. Trust iii. Learning/skill (competence) iv. Self-regulation – to ensure above three are being satisfied. c.
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Professional Responsibility - Schnitze - Professional...

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