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)