WESTERN STATE UNIVERSITY COLLEGE OF LAW
COURSE POLICIES & READING ASSIGNMENTS
COURSE:
SECTION:
SEMESTER:
TIMES:
PROFESSOR:
PROFESSIONAL RESPONSIBILITY
240
Fall 2008
Monday
Carole J. Buckner
cbuckner@wsulaw.edu
REQUIRED TEXTS. All required texts, supplementary materials and your response pad must be
brought to all classes.
Thomas D. Morgan & Ronald D. Rotunda, Professional Responsibility: Problems and Materials,
(Tenth Ed., Foundation Press) (“Casebook”)
Thomas D. Morgan & Ronald D. Rotunda, 2008 Selected Standards on Professional
Responsibility (Foundation Press) (“Selected Standards”)
Other Recommended Texts: These are optional. These resources provide helpful practice on
multiple choice questions, with answers.
W. Bradley Wendel, Professional Responsibility – Examples & Explanations (Aspen).
Patrick Emery Longan, Questions & Answers: Professional Responsibility (LexisNexis).
Casebook: Many cases and ethics opinions are referenced in the casebook. In completing the
reading in the casebook, please pay particular attention to the U.S. Supreme Court cases referenced,
the California state court and 9th Circuit cases and California and ABA ethics opinions referenced in
the materials.
Supplemental Readings: Please access the supplemental readings (in the right hand column of the
reading list below) online, on Westlaw or Lexis (for cases) and/or on the California State Bar website
(using the link indicated). Please note that the opinions for the State Bar Review Court are not
available on Lexis, but are available on Westlaw. The ABA materials can be accessed through the
Lawyer’s Manual on Professional Conduct, on the web at BNA.com. You will need a username and
password to utilize this resource. The username is wsulaw. The password is 09wsubna. This
password is not to be shared with or used by anyone other than WSU students. You should treat all
of these materials as you would cases, and prepare case briefs for these materials prior to class.
CPS: You must purchase your CPS response pad and register it on the eInstruction website prior to
the first class session.
You may purchase the response pad at The Law Bookstore,
1775 W. La Palma Ave, Anaheim, CA 92801. The CPS Enrollment Instructions are posted
separately on the WSU website. Please register your response pad online at eInstruction.com,
according to the instructions that come with the response pad. The Course Key that you will need for
enrollment is N41327C962. You may begin enrolling as of August , 2008. You should be enrolled
before the first evening of the course. In order to receive credit for your answers, you must enroll
using your own name. Using your CPSRF response pad, you will answer questions posed in class.
You must be present and have your response pad with you in each class in order to participate.
These questions will include multiple choice, hypotheticals, questions from the assigned cases, and
questions about the assigned reading, including the notes and Supplement. You will receive credit
each class toward the participation component of your course grade for the questions you answer
correctly. If you are not present in class, or do not have your CPSRF response pad with you in
Su 2004 Syllabus
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April 3, 2004
functional condition, you will not receive any points toward your participation for that class and you
cannot make up the points missed in any manner.
IMPORTANT NOTE: Read ALL of the Rules/Statutes: You are expected to have read ALL rules
and/or statute sections in the Selected Standards to which the problems or readings in the Casebook
refer, including both the ABA Model Rules referenced, and the California Rules of Professional
Conduct that would apply to the same issue. You should also read the comments for the ABA Model
Rules and discussion to the California Rules. The comments and discussion contain many helpful
examples and illustrations that are important to understanding the rules. You will note that the
Sarbanes Oxley materials referenced in the reading list are also set forth in the Selected Standards.
For purposes of identifying the corresponding California Rule of Professional Conduct, and the key
differences between the ABA and California Rules, there is a helpful comparison chart on the State
Bar of California website. Here is the link http://calbar.ca.gov/calbar/pdfs/ethics/aba_to_ca.pdf.
Please do not use the chart as a substitute for reading the rules themselves.
COURSE COVERAGE & OBJECTIVES. Legal ethics is an area of law that pervades all aspects of
your professional life – and also a good part of your personal life. The purpose of this course is threefold. First, the course will identify for you the substantive rules of legal ethics, not only the minimum
standards to which all lawyers must conform, but also professional conduct to which all lawyers
should aspire. Second, by discussing factual situations that present ethics issues, the course is
intended to expose you to the kinds of problems you will confront in your legal practice, and discuss
how you can ethically resolve those problems. Finally, the course will help you prepare for the ethics
related examinations lawyers must take, Including the Multistate Professional Responsibility
Examination (MPRE) and the California Bar Examination, which tests professional responsibility in the
essay and performance portions of the exam. The course, however, is not a bar review course or an
MPRE preparation course. Although it assists such preparation, the course’s primary objective is to
educate you about practical ethical concerns and how to deal with them in your future practice.
Unlike other states that have adopted either the ABA Model Rules of Professional Conduct (“Model
Rules”) or the ABA Model Code of Professional Responsibility (“ABA Code”), California has its own
set of rules, the California Rules of Professional Conduct (“California Rules”). California also sets out
ethical guidelines for lawyers in the Business & Professions Code. Each of these authorities is set out
in the Selected Standards. You will have to be familiar with both the Model Rules and the California
Rules for a number of reasons.1 First, although most of you will practice in California and that
California has its own set of rules and statutes, the California rules usually have analogous sections in
the Model Rules. When construing a California ethical rule or statutory section, the courts and
California Bar often refer to cases that have construed analogous sections in the Model Rules.
Second, the California Ethics Rules Revision is in the process of revising the California Rules to make
them more consistent, but not entirely consistent with the ABA Model Rules. Third, there are “gaps” in
the California Rules and statutes that the courts will sometimes fill by interpolating the relevant Model
Rule. Fourth, when the principal adverse effect of a lawyer’s misconduct is in another state, that
state’s ethical rules will govern. Fifth, there is a movement in the legal profession to allow lawyers in
limited circumstances to practice in jurisdictions in which they are not admitted. This is called
multijurisdictional practice (“MJP”). If you practice in another state, that state’s rules will control, even
if you are not licensed in that state.2 Finally, the MPRE is based primarily on the Model Rules.3 For
1
Of the two ABA ethics codes, the Model Rules, adopted by 44 states, are the most important.
This situation is very likely if, for example, you were to represent a corporation that has a presence in many
different states.
3 I write “primarily,” because the MPRE also covers issues such as formation of the attorney-client relationship
and legal malpractice that are not covered in any of the three ethics codes. To the extent the MPRE covers
subject matter in an ethics code, the Model Rules apply.
2
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April 3, 2004
purposes of the MPRE, where the Model Rules and the California Rules conflict, the former control.
For all of these reasons, a lawyer practicing in California – whose legal conduct is governed by the
California Rules and statutes – must also be familiar with the Model Rules or ABA Code. We will at
times consider all three sets of professional conduct rules in the course, with an emphasis on the
California Rules and statutes and the Model Rules.
Legal ethics often involves “gray areas.” Thus, the study of legal ethics is fact-specific. Class
discussions will focus on the factual situations presented in each problem in the Casebook
(supplemented with hypotheticals), the governing rules, and the policies and rationales underlying the
rules. The Casebook contains questions that identify the issues for each problem, creating a
framework for class discussion. We will use those situations to supplement our understanding of the
principles. I expect everyone in the class to have done the reading and be prepared to participate in
class discussion each day. See Classroom Participation, below.
CLASSROOM PARTICIPATION. Legal education is a cooperative venture. You must be prepared to
participate in each class. During each class, students will be asked to answer questions and
hypothetical problems by submitting their responses using the CPS response pad. In essence, each
class will include a quiz on the assigned materials. You must have your response pad with you in
order to participate. Failure to respond to the questions posed in class will result in a lowering of your
grade in the course. The participation portion of your grade in the course cannot be made up in any
manner if you fail to attend class or fail to bring your response pad to class with you. To encourage
group and class participation, I have allocated a portion of the course grade based on class
participation.
Being prepared means that you completed ALL of the assigned reading and homework. If you
have not completed all of the reading and answered the assigned questions, you are
unprepared. If you wish to challenge this determination, you must turn in to me all work done
by you in preparation for class (e.g., written answers to the questions, case briefs, outlines or
breakdowns of rules, and etc.) in writing, by the end of the same class session for which I
mark you unprepared, before I leave the classroom. Note that this requirement may not be met
at any time other than immediately after class and only by turning in to me a hard copy (paper)
and not a computer version of your work. Students who are unprepared will have their final
grade in the course lowered each time they are unprepared.
PLEASE NOTE: There is a difference between being unprepared and being unable to answer a
question. I expect you to stay sufficiently ahead of the class in your preparation to insure your
readiness to participate in each class. The assertion that you did not anticipate the class getting so
far, you read the assignment too long ago to remember it, or you completed some but not all of the
assignment will not excuse a failure to be prepared for class. I will not reduce your grade simply
because you incorrectly answer a question unless I believe that your answer reflects inadequate
preparation. If you “pass” or are demonstrably unprepared, I may call on you in each succeeding
class until you satisfactorily demonstrate you are prepared. Finally, coverage of reading assignments
is fluid, i.e., we will not always cover all of the assigned material during the scheduled class periods.
CLASS ATTENDANCE. Attendance and participation are required for all classes. Being on time for
class is a simple courtesy to your fellow students and your professor. Coming late to class – even if
you are only a few seconds late – leaving early or leaving for a prolonged period during class without
prior permission, counts as an absence. Students may be absent no more than two (2) times.
Students who miss more than the allowed number of classes will be academically dismissed
from the class. You – and you alone – are responsible for keeping track of your attendance; you will
not receive a warning that you have reached the allowed number of absences. I do not award any
points merely for attending class. Nor can you make up any of the points missed on quizzes or via
CPS if you are absent from class.
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April 3, 2004
POSTING REQUIREMENTS: The webpage will contain hypothetical problems in each of the subject
matter areas that we will study. These will be located on the Discussion Board. As part of your
participation grade in the course, you should make at least 10 postings to the course webpage.
These postings should respond in detail, in IRAC form, to one of the hypothetical problems posted on
the webpage. Your postings should cover a variety of the areas covered in the course. You must
complete six postings prior to the midterm(s) and all postings must be completed within 24 hours of
the last class. The postings are intended to help you prepare to write essay answers to the
examination questions in the course by providing practice, and to allow you to compare your answers
with those of others in the course.
EXAMINATIONS AND GRADING. Each student will receive a numeric grade for the course. Course
grades will be based on one final exam worth 60% of your grade, a midterm worth 25% and an
assessment of your overall participation in the course (in class through CPS and verbally, online,
quizzes, and completion of all assigned practice exams) worth 15% of your grade. The final exam will
consist of 50 multiple choice questions and one essay question.
OFFICE HOURS. Office hours will be held after class each evening. You can make an appointment
in advance by email, or you can just let me know before the class or on the break that you would like
to meet. You may also submit questions by email and I will make every effort to respond to you, or I
will respond to you during the class in which we cover the material in question. You can also reach
me by e-mail at caroleb@wsulaw.edu.
VIRTUAL CLASS. I have set up a course webpage for the course on the Lexis platform. The
password for the course is Buckner. The course webpage includes past exams, and the Discussion
Board, with hypotheticals. Everyone must sign onto the course webpage with a current valid email
that you check regularly because I regularly e-mail students with information relevant to the course.
The excuse that you did not get my email will not be accepted. If your email address has changed,
please be sure to update it through Lexis. I cannot update your email address or send your email to
an address other than the one at which you are registered with Lexis. Each of you will be responsible
for signing up for the course and checking the web page on a regular basis.
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April 3, 2004
I.
COURSE SCHEDULE
WEEK
ASSIGNMENT
1
Casebook, pp. 1-30
FOCUS ON
QUESTIONS
TOPIC
I.
INTRODUCTION: BACKGROUND & FUNDAMENTAL ISSUES
II.
1
1
1
Problem 1
(31-46)
A.1,2,3,4,5.a,b
B.1,2,4,5
C.2,4,6,7
D.1
Problem 2
(46-64)
A.1,2,3,4,5,6.a,c.
B.1,2.a,b,3.b,d
C.1,2,3
D.1,3,5b,c,6.ac,7.b
Problem 3
(64-83)
A.1,2,3,4,5
B.1,2,3a,d
C.1,2,3,4,5.a
D.1,2,3,4
SUPPLEMENTAL READING
REGULATION OF LEGAL PROFESSION
Pasyanos, 4 Cal. State Bar Ct. Rptr.
746 (Rev.Dept. 2005)
ADMISSION TO THE BAR
In re Silverton, 36 Cal.4th 81, 113
LAWYER DISCIPLINE AND THE DISABLED
LAWYER (DISCIPLINE MACHINERY OF THE
BAR)
REGULATING LAWYERS OUTSIDE THE
FORMAL DISCIPLINARY SYSTEM (LEGAL
MALPRACTICE)
P.3d 556, 29 Cal.Rptr.3d 766 (Cal.
6/23/2005)
Orsonio v. Weingarten, 124
Cal.App.4th 304, 21 Cal.Rptr.3d
246 (2004)
III. FUNDAMENTALS OF THE LAWYER-CLIENT RELATIONSHIP
2
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Problem 4
(84-99)
A.1,2,3,4
B.1,4
C.1,2,3,4
D.1,2,3,4,5
UNDERTAKING TO REPRESENT A CLIENT
Page 5 of 12
Cal. Ethics Op. 2003-161, available
on the California State Bar
Website at
http://www.calbar.ca.gov/state/c
albar/calbar_generic.jsp?cid=10
133&id=1129
March 7, 2016
WEEK
2
2
ASSIGNMENT
Problem 5
(99-116)
Problem 6
(117-133)
3
Problem 7
(133-148)
3
Problem 8
(148-163)
FOCUS ON
QUESTIONS
A.1,2.a-d,
3.a,b,d,4.a
B.1.a,b,2,4.b.,6
C.1.a,2.a,c,e,3,4.a
D.1.a,b,d,2.b,3
A.1,2.a,c,3,4,5,6.a,
b, 7
B.1,2,3,4,5.a
C.1,2,3,4,5,6.a,
D.1,2.a,b,c,4.a,c
TOPIC
SUPPLEMENTAL READING
ABA Op. 93-379
BILLING FOR LEGAL SERVICES
HANDLING CLIENT MONEY & PROPERTY
& W ITHDRAWING FROM
REPRESENTATION
ALL QUESTIONS
THE DUTY OF CONFIDENTIALITY
ALL QUESTIONS
MORE ON THE DUTY OF
CONFIDENTIALITY (CORPORATIONS)
Stroud v. Tunzi, 160 Cal.App.4th 377
(2008)
Cal. Formal Op. 1994-134 available
on the California State Bar
Website at
http://www.calbar.ca.gov/state/c
albar/calbar_generic.jsp?cid=10
133&id=1127
Cal. Op. 1986-87 available at
http://www.calbar.ca.gov/state/calba
r/calbar_generic.jsp?cid=10133&id=
1129
Regents of the University of
California v. Superior Court (Aquila
Merchant services, Inc.), 2008 WL
2908123 (2008)
IV. THE REQUIREMENT OF LOYALTY TO THE CLIENT – CONFLICTS OF INTEREST
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March 7, 2016
WEEK
3-4
4
4-5
5
5-6
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ASSIGNMENT
Problem 9
(166-180)
Problem 10
(180-198)
FOCUS ON
QUESTIONS
A.1,2,3
B.1,2,3,4,5
C.1,2.a,c,d,3.a,b,
4.a,5,6, 7
D.1.a,2.a,b,d
A.1,2,3,4.a,b,d,5.
a,6
B.1.a,2.a,b,c,3
C.1,2,3a,b,d
D.1,2,3.a,4
TOPIC
ABA Op. 05-436
REPRESENTING MULTIPLE PARTIES
DEALING W ITH EACH OTHER
THE DUTY OF LOYALTY
Problem 11
(198-211)
CONFLICTS OF INTEREST IN CRIMINAL
LITIGATION
Problem 12
(211-225)
A.1.a,2,3,4
B.1,3.a,b
C.1.a,b,c,2,3.b,5.
a,
D.
CONFLICTS BETWEEN THE CLIENT’S
INTERESTS AND THE LAWYER’S PERSONAL
INTEREST
Problem 13
(225-241)
Sharp v. Next Entertainment, Inc.,
163 Cal.App.4th 410 (2008)
Hollywood v. Sup. Ct., 2008 WL
2003387 (Cal. 2008)
A.1,2,3.a,b,d,4.a,
b
B.1.c,2
C.1.a,c,2.a,c,d
D.1,2
A.1,2,3,4.a
B.1,2.a,b,c,3.b,4.
a,b,d,5
C.1,2,3
D.1,2.a,c,3.d,4.c,
d
SUPPLEMENTAL READING
Haraguchi v. Sup. Ct., 2008 WL
2003496 (Cal. 2008)
Fletcher v. Davis, 33 Cal.4th 61, 90
REPRESENTING THE INSURED AND THE
INSURER
P.3d 1216, 14 Cal.Rptr.3d 58 (Cal.
2004)
Cal. Op. 1995-139 available at
http://www.calbar.ca.gov/state/calba
r/calbar_generic.jsp?cid=10133&id=
1129
ABA Formal Opin. 08-450
Page 7 of 12
March 7, 2016
WEEK
ASSIGNMENT
FOCUS ON
QUESTIONS
TOPIC
SUPPLEMENTAL READING
Knight v. Ferguson, 149 Cal.App.4th
6
6-7
Problem 14
(241-255)
Problem 15
(256-270)
A.1,2.a-c
B.1,2,3.4.a,b,c
C.1.b,c,2.a,b,c,3,
4,5,6
D.1.b
A.1,2,3.a,c,4
B.1,2.c,3.b,c,4
C.1.b,2.b
D.1,2
1207 (2007)
THE LAWYER AND HER FORMER CLIENT
Ochoa v. Fordel, 146 Cal.App.4th
898 (2007)
IMPUTED DISQUALIFICATION
A.1,2,3,4,5,6
Problem 16
(270-283)
C. 1,2
UMG Recordings, Inc. v. MySpace,
Inc., 526 F.Supp.2d 1046
(2007)
City and County of San Francisco v.
Cobra Solutions, 38 Cal. 4th 839
B. 1,2
7
Styles v. Mumbert, 164 Cal.App.4th
1163 (2008)
SPECIAL PROBLEMS OF GOVERNMENT
LAWYERS
(2006)
City of Santa Barbara, 122
Cal.App.4th 17, 18 Cal.Rptr 403
(2004)
8
MIDTERM EXAM
V.
8
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Problem 17
(287-301)
A.1,2,3
B.1.a,b,2,3,4
C.1,2.a,b,3.a,b,
4.a
D.2,3,4,5
ADVISING CLIENTS
THE LAWYER FOR AN INDIVIDUAL CLIENT
Page 8 of 12
Cal. Op. 1989-112 available at
http://www.calbar.ca.gov/state/c
albar/calbar_generic.jsp?cid=10
133&id=1129
March 7, 2016
WEEK
8-9
9
ASSIGNMENT
FOCUS ON
QUESTIONS
TOPIC
Problem 18
(301-314)
A.1.a,c,d,2.a,b,d,
3.a,d,4,
B.1,2,3,4,5
C.1,2.a,b,c,3.a,4.
a,b
D.
ADVISING THE BUSINESS CORPORATION
Problem 19
(314-330)
A.1,2.a,c,d,e,3.a,
4,5
B.1.b,c,f,2,3.a,b
C.1.a,b,d,2.b,c,d,
3.a,c,d
D.1,2,3.a,c,4
COMMUNICATION W ITH REPRESENTED
AND UNREPRESENTED PERSONS
A. - ALL
9-10
Problem 22
(363-379)
B. - ALL
C.1,2,3 & 4
SUPPLEMENTAL READING
Myerchin v. Family Benefits, Inc.,
162 Cal.App.4th 1526 (2008)
Sarbanes-Oxley Materials
OBLIGATIONS W HEN THE CLIENT MAY BE
ENGAGED IN FRAUD
(In Selected Standards of
Professional Responsibility)
D.1,2
VI. ETHICAL PROBLEMS IN LITIGATION
Problem 23
(379-397)
A.1.a,2.a,b,3.a,c,
4
B.1.a,c,2,3.c
C.1,2.a-c,4
D.1.b,d,2.a,3.a,c
Problem 24
(397-415)
A.1,2,3.a,b,e,4
B.1.c,2.a-e,3
C.1,2
D.1,2,3.a,4.a,b
10
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THE DECISION TO FILE A CIVIL SUIT
Zamos v. Stroud, 32 Cal. 4th 958
(2004)
California Civility Guidelines
LITIGATION TACTICS
Page 9 of 12
(In Selected Standards of
Professional Responsibility)
March 7, 2016
WEEK
10
ASSIGNMENT
Problem 25
(415-431)
Problem 26
10
11
FOCUS ON
QUESTIONS
A.1,2.a
B.1,2,3,4.a,d,5.b
C.1,2c,3,4
D.1,2b,c
A.1,2,3
D.
TOPIC
DISCLOSURE OF LAW OR FACTS
FAVORABLE TO THE OTHER SIDE
SUPPLEMENTAL READING
Qualcomm, Inc. v. Broadcom Corp.,
2007 U.S. Dist. Lexis 82965 (2007)
HANDLING PHYSICAL EVIDENCE
(431-446)
Problem 27
(446-468)
11
Problem 29
(479-502)
ALL QUESTIONS
A.1,2,3.a,c,4,5.a,
b,6.a,b,c
B.1,2,3,4.a
C.1.a,2.a,3
D.
THE CLIENT W HO INTENDS TO COMMIT
PERJURY
THE CRUSADING PROSECUTOR
Cal. Op. 1996-146 available at
http://www.calbar.ca.gov/state/c
albar/calbar_generic.jsp?cid=10
133&id=1129
North Caroline State Bar v. Nifong,
Amended Finds of Fact,
Conclusions of Law and Order of
Discipline, available at
http://www.ncbar.com/discipline/prin
torder.asp?id=505
VII. THE DELIVERY OF LEGAL SERVICES
Problem 31
11-12
ALL QUESTIONS
MARKETING PROFESSIONAL SERVICES
(512-534)
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Page 10 of 12
Cal. Op. 2001-155 available at
http://www.calbar.ca.gov/state/c
albar/calbar_generic.jsp?cid=10
133&id=1129
March 7, 2016
WEEK
ASSIGNMENT
12
Problem 32
(534-546)
FOCUS ON
QUESTIONS
A.1,2.a
B.1,2.a,b,3,5
C.1,2,3.a,b,4,5b
D.1,2,3,4.a,c
12
Problem 33
(547-560)
13
Problem 34
(561-579)
A.1,2,3,4,5
B.1.a,c,2.b-d,3
C.1,2
D.2
13
Problem 35
(579-596)
A.1
B.2
C.1,2,3
D.3,4
Problem 37
(614-638)
A.1,2,3,4,5.b,d,6,
7.a,d
B.1,2,3.a-g,4, 5.ac
C.1.a,c,d,2.c,d,3.
a,4,5
D.1,4.a
13-14
13
ETHICS OF REFERRAL TO A SPECIALIST;
FEE SPLITTING
SUPPLEMENTAL READING
McIntosh v. Mills, 121 Cal.App.4th
333, 17 Cal.Rptr.3d 66 (2004)
2 WRITTEN PRACTICE EXAMS DUE
A.1,2,3.a,c,4
B.1,2.b,c,d,3
C.2.a-c,3.ac,4.a,c,5.a
D.
12-13
TOPIC
In re Cohen, 847 A.2d 1162 (D.C.
ROLES AND RESPONSIBILITIES IN A
MODERN LAW FIRM
App. 4/29/2004)
ABA Op. 99-414
LEAVING ONE LAW FIRM AND FORMING
ANOTHER
THE DUTY TO W ORK FOR NO
COMPENSATION
In re Reynoso, 477 F.3d 1117
(2007)
THE FUTURE OF THE PRACTICE OF LAW
2 WRITTEN PRACTICE EXAMS DUE
VIII. THE ETHICAL CONDUCT OF JUDGES
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March 7, 2016
WEEK
ASSIGNMENT
FOCUS ON
QUESTIONS
TOPIC
Problem 38
(639-657)
A.1,2,3,4.a,b,5
B.1.a,b,2.a,b,3.b,
c
C.1.a,2,3.a,b,c,e
D.1.a,2
JUDGES’ DISQUALIFYING CONFLICTS OF
INTEREST
14
Problem 39
(657-674)
ABA Formal Ethics Opin. 07-449
(2007)
THE JUDGE AS A POLITICAL CANDIDATE &
PUBLIC FIGURE
2 WRITTEN PRACTICE EXAMS DUE
14
Date to be
announced
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A.1,2,3.a,4
B.1,2,3
C.1.a,c,d,4
D.1,2
SUPPLEMENTAL READING
FINAL EXAMINATION
Page 12 of 12
March 7, 2016