PROFESSIONAL RESPONSIBILITY Fall 2013 Professor Maute 325-4747 jmaute@ou.edu Class: Monday – Wednesday 10:00 - 10:50 AM Classroom 3 3:00 - 3:50 P.M. Classroom 1 I. Introduction to the Course More than any other course in the law school curriculum, this course is about you. You will learn rules and doctrines that you must know for survival as a respected legal professional. We will also critique those rules and the legal profession as currently structured. I encourage you to explore your own values and to consider how you can express them through the practice of law. A more appropriate title for the “Professional Responsibility” course is “The Law and Ethics of Lawyering.” The primary course goal is to acquaint you with the various sources of law governing the conduct of lawyers, including enforceable (but not always enforced) rules of professional conduct, and such diverse bodies of law as contract, tort, agency and criminal law. Perhaps even more than other areas of law, the law of lawyering is not static, but undergoes constant change. Not long ago, Professional Responsibility courses focused almost exclusively on disciplinary rules. The increased attention devoted to other sources of law is now recognized in the new Restatement of the Law Governing Lawyers (adopted in 1998 and published in 2000). In response to the Restatement and other changes in the law, in February 2002 the ABA adopted comprehensive revisions to the Model Rules of Professional Conduct. Since then, every jurisdiction has made substantial progress in considering the new rules for local adoption. A strong push for national uniformity has been largely successful, with forty-three jurisdictions adopting rules based on the ABA Model Rule language. The revised Oklahoma Rules of Professional Conduct went into effect January 1, 2008. The Oklahoma Supreme Court amended the Code of Judicial Conduct effective April 15, 2011. For the last three years the ABA Ethics 20/20 Commission studied issues relating to technology and globalization. On August 4, 2012 the ABA House of Delegates voted to approve numerous amendments. It approved other amendments February 11, 2013, some of which may provide career guidance to LL.M students licensed to practice in other jurisdictions. The second goal of the course is to have you begin to consider the “ethics” of the profession and their relation to your own individual morality. In other courses we often see how the law is uncertain in areas of great concern to clients. Indeed, one of the most critical skills a lawyer needs is to counsel a client when the legal outcome of some proposed action is uncertain. In this course we confront similar uncertainty, but this time it is our own conduct that is at stake. In addition, we will talk about practices (like client solicitation) where the conduct is clearly unlawful (i.e., violates a disciplinary rule) but where it is also clear that lawyers frequently violate the rule and that disciplinary authorities typically choose not to prosecute (usually for lack of resources). Finally, there are many areas where the law explicitly gives discretion to act or not to act. Thinking through the ethical and moral aspects of all the various options at this early stage of your careers may prove helpful later as you begin to confront these dilemmas in your daily law practice. 1 II. Course Materials Required: 1. LISA G. LERMAN & PHILIP G. SCHRAG, ETHICAL PROBLEMS IN THE PRACTICE OF LAW (3rd Ed. Walters Kluwer 2012) (Text) 2. THOMAS D. MORGAN & RONALD D. ROTUNDA, 2013 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (Foundation Press) (Supp.) 3. Clickers: get from Faculty Support and bring to class daily. They must be returned by April 26, to avoid a charge on your bursar’s bill. Recommended: W. BRADLEY WENDEL, PROFESSIONAL RESPONSIBILITY EXAMPLES & EXPLANATIONS (3rd Ed. Aspen 2011) Comment on Course Materials The Lerman & Schrag text is very readable, with detailed chapter outlines printed at the start of each chapter, and information often summarized in charts. It managed to avoid many of the difficulties with other professional responsibility textbooks, which are often too complex, abstract or cryptic, or lightweight and simplistic. Most of the problems are based on real situations designed to teach you to identify potential ethical problems early, before it’s too late. Ethical issues abound in the practice of law. Depending on when a lawyer becomes aware of a potential problem, the resolution may not be clear and varies with the facts, which may not be apparent at the time. Learning to identify when there may be a problem will help lawyers avoid many, but not all, difficult situations. Forewarned is forearmed. In my view, the lengthy charts interspersed the book giving the authors’ interpretations of rule text and comments is redundant and would prefer you read from the Morgan & Rotunda Supp., which includes the Ethics 20/20 amendments. III. Reading Assignments 1. Within the first month you should look over the entire set of ABA Model Rules, paying particular attention to organization (Parts 1-8) and how the black letter text fits into that organization. By the end of the semester, you are responsible for having read all of the ABA Model Rules and comments. Study the tables of contents for the Rules (pp. 1-2 Supp.) and the Restatement & conversion chart from tentative drafts (pp. 244-247 Supp.) Although we will periodically refer to Oklahoma modifications, for the final exam you are responsible only for three: 1.6 (confidentiality), 3.3 (candor to tribunal) and 3.6 (extrajudicial publicity). 2. You are responsible for all of the assigned reading, whether or not we discuss each specific issue in class. For assigned problems, much of the associated text provides relevant information needed for sound analysis. Starting at page 7, the syllabus identifies topical coverage and reading assignments for each class session. When it specifies Rules of Professional Conduct, you are expected to read all the comments for each rule, unless the assignment specifies specific comment numbers. As a general principle, you may scan the listed Restatement sections, unless I announce in advance the need to read certain provisions more carefully. 3. Often (but not always) our primary focus in a class hour will be discussion of the assigned problems. To allow sufficient discussion time, class time will not be spent repeating what is already clearly stated in the text. You are expected to master the relevant law set forth in the text in your class preparation so that discussion can reinforce that understanding with focus on application of the law and on the strategic, moral or other considerations that should inform your analysis of the problems. In preparing for class, read the text 2 and assigned problems carefully. For each assigned problem identify the issues, evaluate the options available to the lawyer and decide what you think the lawyer should do. Be prepared to discuss what might happen later in time under the different options. Some problems may require significant study time before class. 4. Everyone is on call everyday. I will facilitate the discussion, but all students are expected to be active contributors. Volunteer to answer questions I ask, or questions other students ask. Come to class with questions or comments of your own on the assigned material. The point is to master the material as best as you can while preparing and devote class time confirming or refining collective understanding of the material. 5. Clickers. Before class Tuesday August 20, everyone should obtain a clicker from Faculty Support. Bring it to class daily. Carefully safeguard it from loss or damage. They must be turned back by the last day of class, November 25, or your bursar account will be charged $70. (No one wants that to happen!) IV. Housekeeping Rules A. Grade Your final grade will be based on the following two (or possibly three) factors: 1. Final exam: 90%. A three hour examination will be administered on at two different times, which makes for some confusion. In preparing this syllabus Registrar (Becky Lucas) and I discovered a conflict between the intranet class roster and the exam schedule as to the assigned section number. The Finals Schedule designates the afternoon class as Section 2. It designated the morning class as Section 1; the exam is administered 9 AM – Noon, with additional administration and rest time. It will be a combination of multiple choice and essay questions. Students are responsible for material contained in all of the assigned reading, including principles developed in case law and ethics rules. a. The one hour multiple choice portion is closed book. It will be computer graded; no partial credit will be given for incorrect answers supplemented by explanations. The questions generally follow the Multistate Professional Responsibility Exam (MPRE) and National Conference of Bar Examiner (NCBE) multiple choice format and drafting conventions. Because I served on the MPRE drafting committee years ago, I am familiar with the process and as possible, try to stay current with changes in drafting conventions. In grading, I carefully review the statistical performance of each question and may toss or double key individual questions based on this assessment. b. The two hour essay portion is open book. You may bring in the text, statutory supplement, any class materials posted on course webpage, a course outline either which you personally prepared or the product of a study group in which you participated. No commercial supplements may be used in the exam. The essay portion of the exam may be taken on laptops, with the spellcheck and editing function disabled. My prior essay questions are posted on the student intranet. If a handwritten bluebook exam is illegible, the Registrar will 3 work with the student to have faculty support produce a typed copy conforming to the original writing. 2. Class participation and attendance: 10%. Class participation will be evaluated based on quality, not quantity. Share the air time. If you tend to talk a lot, ration yourself to one or two comments per class. On the other hand, if you wish for invisibility and live in fear of getting called on, force yourself to speak up on occasion. 3. Anonymous grading. Please do not provide any identifying information in your exam or in comments to me. Towards the end of the grading process I will calculate the number of points that equal 10% of the final grade, notifying the Registrar to input that number for each student, without identifying to me the names of students. Thereafter, the cumulative score will be charted and final grades assigned. In the event of conflict between student records and official attendance records, the official record presumptively applies. B. Attendance, Preparation & Participation 1. For this course you are allowed two times the class hours, or six absences or more unprepareds (which count as an absence). The grade of any student who misses or is unprepared for seven or more class sessions may be reduced or the student may be dropped from the course. In determining the appropriate sanction, I will take into consideration reasons for absence or unpreparedness. 2. Procedure: Each day at the start of class I will distribute a daily sign-in sheet. Sign if you are both present and prepared to participate. If you attend but are NOT prepared or do not wish to be called on, put an asterisk (*) by your name and I will not call on you (or if I do, please remind me that you used the asterisk). This sheet must be signed, with appropriate designations, within the first five minutes of class. If you sign in without the asterisk designation on a day in which you were not prepared, this will be deemed a misrepresentation of fact and may be reported as a violation of the Code of Academic Responsibility. Please keep track of your own absences & unprepareds in the space below. 3. For purposes of this policy, being unprepared, as marked by an asterisk, is treated the same as an absence. This policy recognizes that students can obtain benefits from attending class, even when they have not adequately studied that day's materials or otherwise do not want to participate. By marking an asterisk, you have safe harbor from being called on. As a matter of consideration to me and to your classmates, if you are not prepared, you should refrain from participation on that day. 4. Unless there are extraordinary circumstances, such as a death or serious illness in the family, jury duty, emergency military service or your hospitalization, please do not ask me to consider an absence excused. Your presence in law school indicates that you are mature adults capable of making your own scheduling choices. You are free to choose how to spend your allowed absences. C. Record Keeping Please use the following space to keep track of your own absences and asterisks. If you are in doubt about the accuracy of your records, you can check with me. In the event that your records differ from the file of daily attendance sheets, the official records will prevail. 4 Dates of Absences Dates of Unprepareds D. Computer & Internet Use in Class Computers and wireless Internet access present with unlimited distractions to good concentration. For law students, this may be seriously harmful to educational and professional development and also be distracting to others around them. While I discourage use of laptops in class, their use is permitted only for taking notes or viewing specifically authorized materials relevant to that class session. I reserve the right to rescind the privilege of computer use for the entire class for the balance of the semester if I perceive any unauthorized use by a single student. Unauthorized use while class is in session includes (but is not limited to): email, shopping, browsing websites, playing games or other non-course related work. I trust that no one wants to be the person whose conduct prompts me to rescind the privilege for everyone. After the bell rings, all cell phones, smart phones and pagers must be turned on silent during class time. No text messaging is permitted. My decision to limit laptop usage was made after careful thought, research and consultation with colleagues. Past and current research by neuroscientists, psychologists and education experts show that multi-tasking rewires the brain, reducing the capacity to reason and deliberate, read, retain information and engage in active thinking. See Kate N. Grossman, Controversy, Chi. Sun-Times B1 (March 4, 2007) (available at 2007 WLNR 4135298) “Stop interrupting yourself: If you keep multitasking . . . you may damage your ability to think deeply, learn and remember.” Students and lawyers who are in a “continuous state of partial inattention” may have a hard time keeping jobs or delivering competent and affordable legal services. Much current academic research confirms that point. V. Disability Policy The University of Oklahoma is committed to providing reasonable accommodation for all students with disabilities. Students with disabilities who require accommodations in this course are requested to speak with the professor as early in the semester as possible. Students with disabilities must be registered with Disability Resource Center prior to receiving accommodations in this course. The Office of Disability Services is located in Goddard Health Center, Suite 166, phone 405/325-3852 or TDD only 405/325-4173. The University policy is available at http://www.ou.edu/content/drc/home/students/ policies.html. VI. Code of Academic Responsibility All course work and conduct in law school is subject to the Code of Academic Responsibility. This includes all course work whether or not it is graded, is in draft or final form, attendance records, and compliance with the Computer and Internet Policy. VII. Office Hours I generally maintain an open door policy, except the one hour before I teach. You may also contact me by email, either to make an appointment or to ask a question or make a comment about the reading or the 5 class discussion. I check my email and try to respond promptly. VIII. Multistate Professional Responsibility Exam Most states require that applicants for admission to the bar pass the MPRE. In 2013 it is administered November 2; because the normal registration is about three weeks into the semester, I strongly discourage taking it in November. It is expensive and you want to pass it the first time. 2014 administrations are March 29, August 9 and November 1. Shortly before the March 29 test I will give a lecture open to the entire student body discussing test format, scope of coverage and the scaled score process. Please see me if you have unique circumstances that push towards taking in November. The website for the National Conference of Bar Examiners is www.ncbex.org. A standing rule of the MPRE Committee is that no amendment to the ABA Rules are testable until the ABA House of Delegates vote to accept one year after the vote. The website has sample questions available on line and other reliable study materials available for purchase. IX. Supplemental Reading For your convenience, I list the following research sources that you may wish to consult either in your studies, or in connection with outside work responsibilities. See also text at pp. 949-51. Research Sources ELLEN J. BENNETT, ELIZABETH J. COHEN, MARTIN WHITTAKER, AMERICAN BAR ASSOCIATION, ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT (7th ed. 2011) ABA/BNA Lawyers’ Manual For Professional Conduct (only advance sheet series dedicated to law of lawyering; go to library home page, databases, scroll through Bloomberg until you get to Ethics; that takes you to current on-line edition, see http://lawyersmanual.bna.com/mopw2/ . For more general substantive research the Bloomberg site is invaluable, all available without password information in the law school; at some point a librarian will demonstrate how you can access the Bloomberg Ethics page off-campus. AMERICAN LAW INSTITUTE RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000) GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES; WITH ASSISTANCE BY JOHN S. DZIENKOWSKI, THE LAW OF LAWYERING (3rd ed. 2001-__) KF 306-H33 (stacks) RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE (2012 ed.) RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, PROFESSIONAL RESPONSIBILITY, A STUDENT’S GUIDE (201213) CHARLES F. HERRING, JR., TEXAS LEGAL MALPRACTICE & LAWYER DISCIPLINE (12th ed. 2013). At least one copy of the 2012 edition should be available in the stacks. CHARLES WOLFRAM, MODERN LEGAL ETHICS (1986) (West) (excellent treatise, although outdated) Websites http://www.abanet.org/cpr (ABA Center for Professional Responsibility) http://www.law.cornell.edu/ethics (American Legal Ethics Library) www.okbar.org (Oklahoma Bar Association) http://legalethicsforum.typepad.com/blog/ (legal ethics professors’ blog) http://lawprofessors.typepad.com/legal_profession/ (Another legal ethics professors’ blog) http://www.freivogelonconflicts.com/ (William Freivogel, expert on Conflicts of Interest) 6 CLASS TOPICS FOR SESSION DISCUSSION & DATE Session 1 I. Regulation of the Legal Profession Aug. 19 Chapter 1 Regulation of Lawyers Institutions that regulate lawyers; the law governing lawyers (LGL) Sessions 2 Admission to practice &3 Aug. 20-21 1-1 The New Country 1-3 The Doctored Resume Session 4 Aug. 26 Session 5 Aug. 27 Session 6 Aug. 28 Session 7 Sept. 3 Chapter 2 Lawyer Liability A. Professional discipline 1. History & Process 2. Grounds for Discipline 3. Reporting misconduct by other lawyers; Responsibilities of supervising & subordinate lawyers 2-2 Exculpatory Evidence 2-3 The Little Hearing Legal protections for subordinate lawyers? B. Civil & criminal liability of lawyers; Client Protection Funds; multiple sources of LGL 7 ASSIGNED READING & & PREPARATION Text: pp. 1-34 Model Rules (MRPC or Rules): Preamble & Scope (Supp. pp. 3-7) Text pp. 34-51, Rule 8.1 (Bar Admission) Wed. 52-78 If you filed a law student application for bar admission in any jurisdiction, please review & bring to class. If not, look at the Oklahoma character & fitness questionnaire. Are there questions that you consider too intrusive? What is basis for admissions authorities to ask for that information? What do they do with the information? http://www.okbbe.com/applications.aspx OK requires 2L students to file by 10/15; high fee increases for later filing. Text pp. 79-100 Rule 8.4 Okla. Disciplinary Procedure Flowchart (on course webpage) Text pp. 100-118 Rules 5.1-5.3, 8.3 Text pp. 118-134 Text pp. 135-55 CLASS SESSION & DATE Session 8 Sept. 4 Session 9 Sept. 9 Session 10 Sept. 10 Session 11 Sept. 11 Session 12 Sept. 16 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION II. The Duties of Lawyers Chapter 3. The Duty to Protect Client Confidences A. The basic principle of confidentiality 3-1 & 3-2 Your Dinner with Anna, Scenes 1 &2 B. Exceptions to the duty to protect confidences 1. Revelation of past criminal conduct 3-3 through 3-5 The Missing Persons, Scenes 1, 2 & 3 2. The risk of future injury or death 3-6 Rat Poison 3-7 Your Dinner with Anna, Scene 3 Text pp. 159-185 Rule 1.6 and all cmts. For Sessions 8-10, scan chart, supp. pp. 151-71 (will put you at some ease if you have any sense of confusion you may have on this complex set of materials; best example of “balkanization” of U.S. ethics law). 3. Client frauds and crimes that cause financial harm 3-9 Reese’s Leases 4.-6. Miscellaneous exceptions C. Use or disclosure for personal gain or to benefit another client 3-10 An Investment Project D. Talking to clients about confidentiality [catch-up] Chapter 4 The Attorney-Client Privilege A. Confidentiality & attorney-client privilege (ACP) compared B. The elements of ACP C. Client identity D. Waiver E. The crime-fraud exception 4-2 The Fatal Bus Crash F. The death of the client G. SKIP WORK PRODUCT DOCTRINE H. The privilege for corporations 4-4 Worldwide Bribery 8 Text pp. 185-200 Review Rule 1.6 and cmts., compare Okla. Rule 1.6 and cmts. (on course webpage), Rstmt. §66 Text pp. 201-228 Compare ABA and Okla. Rule 1.6(b) and related cmts., Rule 1.0(d), cmt. 5, Rules 1.2(d), 1.8(b), 1.16 (a),(b), 4.1 and 8.4(c). See also Rstmt. §§60, 67. Skip Prob. 3-8, pp. 205-07 Text pp. 229-247 Rstmt. §§ 68-72, 78-79 Cf., Mohawk Indus., Inc. v. Carpenter, 130 S.Ct. 599 (2009) Text pp. 249-261, 265-272, scan 276-277 Rstmt. §§ 73-74, 76-80, 82, 86 Cf. In re Miller, 595 S.E.2d 120 (N.C. 2004) CLASS SESSION & DATE Session 13 Sept. 17 Session 14 Sept. 18 Session 15 Sept. 23 Session 16 Sept. 24 Session 17 Sept. 25 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION Chapter 5. Relationships Between Lawyers and Clients A. Formation of the client-lawyer relationship B. Lawyers’ responsibilities as agents C. Lawyers’ duties of competence, honesty, communication, and diligence 1. Competence in civil matters 5-1 The Washing Machine 2. Competence in criminal cases D. Who calls the shots? Criminal clients with diminished capacity 5-4 The Package Bomber Who calls the shots?(cont’d), Civil clients with diminished capacity 5-5 Vinyl Windows C. 3. Diligence, 4. Candor & Communication 5. Candor in counseling 6. Additional duties by contract 7. Reduced duties by contract & “unbundled” legal services (limited scope representation, or LSR) E. Terminating a Client-Lawyer Relationship [catch-up] Start Chapter 6 Concurrent Conflicts of Interest: General Principles A. Introduction to Conflicts B. General principles in evaluating concurrent conflicts 6-1 The Injured Passengers, Scene 1 6-3 The Injured Passengers, Scene 2 H. Representing parties to aggregate settlements of individual cases 9 Text pp. 279-302 Rules 1.1-1.4, 1.16, 1.18 Text pp. 302-312, 334-353 Rules 1.1, 1.2-1.3, 1.14, 1.0(e) and cmts. 6-7 Review pp. 346-48, scan text pp. 354-359, 360-364, 313-323, read 327-334 Rules 1.2-1.4, 1.14, 8.4(c) Read pp. 370-77, Rule 1.16 Text pp. 379-388 Scan Rules 1.7 – 1.13 Text pp. 388-406, 407-412 (ignore Fred & Mona hypo), 468-69 Rule 1.7, Cmts. 1-8, 14-23, 29-33, 1.8(g) & related Cmts. CLASS SESSION & DATE Session 18 Sept. 30 Session 19 Oct. 1 Session 20 Oct. 2 Session 21 Oct. 7 Session 22 Oct. 8 TOPICS FOR DISCUSSION Conflicts between current clients in civil litigation (cont’d) Positional conflicts 6-5 Top Gun Prospective clients 6-6 The Secret Affair Chapter 7 Current Client Conflicts in Particular Practice Setting A. Representing both parties to a transactions B. Representing organizations 7-1 Motion to Disqualify (revise hypo) C. Representing criminal co-defendants D. Representing family members 7-6 Representing the McCarthys E. Representing insurance companies & insured persons 7-7 Two Masters Chapter 8 Conflicts Involving Former Clients A. The nature of conflicts between present and former clients B. Duties to former clients C. Distinguishing present and former clients D. Evaluating successive conflicts 8-1 Keeping in Touch E. Addressing former client conflicts in practice 8-2 The District Attorney F. Representing the competitor of a former client 8-3 A Dysfunctional Family Business G. Conflicts between the interests of a present client and a client who was represented by a lawyer’s former firm 8-4 The Firm’s New Partner 8-4 The Fatal Shot 10 ASSIGNED READING & & PREPARATION Text pp. 412-13, 414-20 Review Rule 1.7, Cmts. listed above and 24. Rule 1.18 Text pp. 423-28 Rule 1.7, Cmts. 7, 26-33 Text pp. 428-438 Rule 1.13, 1.7 and Cmts. 34, 35. Text pp. 439-447, 450-456, 456-461 Rule 1.7, and Cmts. 13, 16, 23, 26-27, Rule 1.8(f) and Cmts. 11-13 Text pp. 471-496 Rule 1.9 Text pp. 497-519 Rules 1.9, 1.10. Compare to Oklahoma 1.10 (identical to ABA before 2009 amendments). Policy question: should Oklahoma revise 1.10 to allow screening without former client’s consent? CLASS SESSION & DATE Session 23 Oct. 9 Session 24 Oct. 14 Session 25 Oct. 15 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION Chapter 10 Conflicts Issues for Government Lawyers and Judges A. Successive conflicts of former and present government lawyers B. Conflicts involving judges, arbitrators, and mediators Chapter 9 Conflicts of Interest Between Lawyers and Clients A. Legal Fees 1. Lawyer-client fee contracts 9-1 An Unreasonable Fee? 2. Regulation of hourly billing and billing for expenses 9-3 An Impoverished Client Text pp. 607-615, 620-642 Rules 1.11-1.12, scan ABA Code of Judicial Conduct (CJC) (supp. pp. 558625) N.B. Oklahoma CJC amended (effec. 4/15/11), 5 O.S. Ch. 1 App. 4 Text pp. 521-543 Rule 1.5. Search for lawyer jokes that demonstrate financial conflict of interest between lawyers and their clients; be prepared to share some in class. Text pp. 543-575 (note carefully all references to ABA F. Op. 93-379 and case references, both in text and footnotes) Rule 1.5, 1.8(e), Cmt. 10. *Search ABA BNA Lawyers’ Manual or Annotated MRPC for fee discipline cases Text pp. 576-593 Rules 1.15, 5.2, 5.4(a). See also, Rstmt. §§ 37-43 Session 26 Oct. 16 Regulation (cont’d): publication rights, advance payment & nonrefundable retainers, fee disputes, dividing fees with other firms or with nonlawyers B. Lawyer as custodian of client property & documents Session 27 Oct. 21 C. Conflicts with lawyers’ personal or business interests 9-4 Starting a Business Business & personal interest conflicts, gifts from clients, sexual relationships, when individual lawyer conflicts imputed to others in firm 11 Text pp. 593-605 Rule 1.8 and Cmts. Review relevant portions of ABA and Okla. Rule 1.7 and Cmts. CLASS SESSION & DATE Session 28 Oct. 22 Session 29 Oct. 23 Session 30 Oct. 28 Sessions 31& 32 Oct. 29-30 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION Chapter 11 Lawyer’s Duties to Courts A. Being a good person in adversary system B. Investigation before filing a complaint C. Truth and falsity in litigation 1&2. Rules on candor to tribunal and which rule applies when? 3. A lawyer’s duties if a client or witness intends to give false testimony a. Criminal defendant, future intent b. Civil litigation (given Nix, no viable basis to tolerate false evidence/ testimony Scan 643-47, read text pp. 647-654 (SKIP Prob. 11-1, Paula Jones), 668-671, 672675 Compare ABA and Okla. Rule 3.3. Read carefully comments to both and consider why they differ as to a criminal defense lawyer’s discretion as to future client testimony where lawyer does not know it will be false. Consider: what is practical impact of Supreme Court’s resolution in Nix v. Whiteside? Important variables on lawyer’s duties: when lawyer becomes aware of falsity, who is the witness (client/nonclient, criminal/civil), materiality of evidence. Text pp. 675, 677-83 (Skip editorial on Simpson Lawyers pp. 676-77) Rules 3.3, 3.4 Look for real world (i.e., not TV or movies) examples of “dirty tricks” or gamesmanship that some lawyers might try in order to shade the truth in litigation. [catch-up] Truth and falsity in litigation (cont’d) 4. False impressions created by lawyers during litigation 11-4 The Drug Test 11-5 The Body Double 5. Lawyers’ duties of truthfulness in preparing witnesses to testify D. Concealment of physical evidence and documents 1. Duties of criminal defense lawyers with respect to evidence of crimes 11-7 Child Pornography (Probably skip problem) 2. Concealment of documents and other evidence in civil and criminal cases 11-8 The Damaging Documents E. The duty to disclose adverse legal authority F. Disclosures in ex parte proceedings G. Improper influences on judges and juries 1. On judges 2. On juries 11-9 A Letter to the Editor H. Lawyers’ duties in nonadjudicative proceedings 12 Text pp. 684-703 Rules 3.4, 4.4 ** read with care Rstmt. §§ 118, 119 Text pp. 703-727 Rule 3.3(d), 3.4(e), 3.5, compare ABA and Okla. 3.6, 3.7, 3.8(f), 3.9 CLASS SESSION & DATE Session 33 Nov. 4 Session 34 Nov. 5 Session 35 Nov. 6 Session 36 Nov. 11 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION Chapter 12 Lawyers’ Duties to Adversaries and Third Persons A. Communications with lawyers and third persons 1. Deception of third persons 12-1 Emergency Food Stamps c. Duties of truthfulness in negotiation? d. Receipt of inadvertently transmitted information e. Limited duty of disclosure to third persons 2. Restrictions on contact with represented persons 3. Restrictions on contact with unrepresented persons 12-3 The Break-in Text pp. 729-742, 744-746 Rules 4.1, and 4.4. Start identifying when 4.2 or 4.3 applies. B. Duties of prosecutors 1. Undercover investigations 12-4 The Prosecutor’s Masquerade 2. Required pre-filing investigation 3. Concealment of exculpatory evidence 4. Unreliable evidence 5. Discipline of prosecutors? Demise of immunity for damages? C. Conduct prejudicial to administration of justice D. Are lawyers really overzealous? Text pp. 766-781, 781-783, 784-787 Rules 3.8, review 4.1-4.3, 8.4. (possible revisions) Search ABA BNA Lawyers’ Manual for discussion or recent cases dealing with discipline of prosecutors or civil liability claims. [catch-up] Chapter 13 The Provision of Legal Services A. The unmet need for legal services B. Sources of free legal services for those who cannot afford legal fees 1. Indigent criminal /quasi-criminal defendants 2. Civil Gideon? Text pp. 789-807 (maybe revised) Rule 6.2 13 Search ABA BNA Lawyers’ Manual for discussions of social media, attempts to gather information about people or parties without them knowing it is for use in a legal matter. Text pp. 747-762, 765-66 Rules 4.2, 4.3, 4.4, 8.4 For two years the Okla. RPC Committee has been evaluating whether to adopt ABA 3.8(g), (h) or a variant thereof. What do you think? Note: Gideon v. Wainwright was decided 50 years ago in February. Query: how well do state indigent defense system work? CLASS SESSION & DATE Session 37 Nov. 12 Session 38 Nov. 13 Sessions 39 & 40 Nov. 18-19 Sessions 41 & 42 Nov. 20, 25 TOPICS FOR DISCUSSION ASSIGNED READING & & PREPARATION 4. Pro bono representation 5. Loan forgiveness and scholarships for public service lawyers. Text pp. 824-839 Compare ABA and Okla. 6.1. Should pro bono responsibilities be aspirational or mandatory? What about a duty to report (but not to serve)? Should there be a “buyout” option? What benefits do lawyers get from doing pro bono? What should law firms do, per ABA Cmt. 11? What can/should law schools do to encourage students to get in the pro bono habit? C. Restrictions on legal services by nonlawyers 13-5 Service to the Poor and Middle Class III. The Practice of Law Chapter 14 Law Practice in the United States C. Types of legal practice D. How to find a private sector employer with high ethical standards and humane working conditions 14-1 The Reforming Partner Chapter 15 A Changing Profession B. Advertising & Solicitation 1. Multijurisdictional practice Text pp. 839-841, 843-46, 848 Rule 5.4 Text pp. 857-863, 868-882, 882-891 [catch-up], last sessions for exam procedural questions D. The effects of economic recession E. Future structural changes in the legal profession Wrap-up Text pp. 931-942, 943 (time permitting, may add to more on future of legal profession) 14 Text pp. 906-925 Rules 7.1-7.5 (note 20/20 revisions to some of marketing restrictions), Rule 5.5 (Note 2/11/13 revisions to 5.5)