TEXAS SOUTHERN UNIVERSITY
THURGOOD MARSHALL SCHOOL OF LAW
PROFESSIONAL RESPONSIBILITY
LAW 620
Fall 2013
PROFESSOR ANNA TAYLOR JAMES
Required Texts:
Lerman and Schrag, Ethical Problems in the Practice of Law, Concise Third Edition
Morgan & Rotunda, Selected Standards on Professional Responsibility, Latest Edition
Rules:
ABA Model Rules of Professional Conduct
ABA Code of Judicial Conduct
Texas Disciplinary Rules of Professional Conduct
Texas Rules of Disciplinary Procedure
Texas Lawyer's Creed-A Mandate for Professionalism
Texas Rules of Judicial Conduct
Scope:
The contents of the course will:
Determine the role of the state in regulating the conduct of lawyers and judges.
Identify the parties in the disciplinary process.
Examine the areas of law and practice that usually generate disciplinary problems.
Identify, define and evaluate lawyer and judicial misconduct in accordance with
national and local rules.
Analyze the lawyer-client relationship as it relates to lawyer misconduct.
Determine the role of the state in reviewing the lawyer-client relationship.
Identify economic, social and political factors that affect lawyers' conduct.
Evaluate lawyer certification/specialization programs.
Identify the changing trends in the practice of law that may impact on lawyers'
conduct.
Discuss the lawyer's physical and mental well being as it relates to the practice
of law.
Discuss the grievance process for lawyers in Texas.
Discuss the ethical rules that govern the conduct of lawyers employed by
governmental entities.
Students should develop the following competencies from the textual materials:
Define, describe and distinguish terms and words of art.
Define, compare and distinguish the rules and principles related to the subject
matter.
Analyze the facts and data of the cases and statutes.
Classify the elements of the subject matter outlined in the rules and principles of
the specific topic.
Apply the various rules to solve problems.
Determine the criteria utilized for the decision making process.
Identify the trends or evolving directions of specific rules and principles.
Materials needed for class:
Textbook, ABA Model Rules and notes for the daily assignments.
Occasionally, additional cases, reading materials and problems will
be assigned. Read concurring and dissenting opinions if they are
included in the assigned readings. Do not bring commercial case
briefs, outlines and other study aids to class.
Grading Scale:
See the Student Rules of Matriculation.
Examinations:
Mid-term examination: 25%; Final examination: 75%
Mid-term examination: October 7, 2013
The examinations will be similar in format to the MPRE.
Attendance:
The attendance rules in the Student Rules of Matriculation will be enforced.
There are no excused absences.
Arrive on time for class and remain until class is dismissed unless there is an
emergency.
Accommodations:
If you require accommodations, complete the proper forms in Dean Mouton's
office. Your application and documentation will remain confidential. Your
prompt attention to this matter will allow the law school to accommodate
you as soon as it has been made aware of your needs. Please refer to the
Student Accommodations Handbook.
Place all computers in the "off' position during class.
Electronic communications devices must be placed in the "off' position
during the class. Secure the devices so that you will not have access to them
during class. If a student's communications devices disrupt class, the student
must leave class and will be marked absent.
When the schools are not in session, make arrangements for child care instead of bringing the
children to class.
Office Hours: Monday, Wednesday: 11-1; 3-4; Tuesday: 1-5; Thursday:
Office: Room 236K (713) 313-7394 ajames@tmslaw.tsu.edu
11-2; Friday: 11-1
Professional Responsibility
Fall 2013
Class Assignments
Lerman and Schrag, Ethical Problems in the Practice of Law, Concise Third Edition
Assignment 1
Introduction
and Chapter 1, Regulation of Lawyers
pages 1-61
How to use the Rule Book
Introduction, pages 1-19
Chapter 1, pages 21-61
What entities regulate lawyers?
Admission to practice
Charts 49-51
Mental health of applicants
Misconduct-In
re Mustafa, 631 A2d 45, (1993)
Problems 1-1, 1-2
Model Rules Section-Preamble,
Scope; 8.1
Assignment 2
Chapter 2, Lawyer Liability
pages 63-100
Professional discipline,
Grounds for discipline, pages 69-76; In re Peters, 428 NW2d 375 (1988)
Reporting misconduct by lawyers
Problems 2-1, 2-2
Chart pages 82-83
Model Rules 5.1; 5.2; 5.3; 8.3; 8.4
Assignment 3
Civil liability
Legal malpractice-Model
Rules and Texas Rules
Definitions and statutes of limitation
Read: Willis v. Maverick, 760 SW2d 642, Tex. 1988
Malpractice insurance-types
of coverage
Criminal liability
Model Rules 5.1; 5.2; 5.3; 8.3; 8.4
Assignment 4
Chapter 3, The Duty to Protect Client Confidences
pages 101-173
Principles of confidentiality
Problems 3-1
Exceptions to duty to protect confidences:
Chart, pages 113-115
Revelation of past crime conduct: Problems 3-2, 3-3, and 3-4
People v. Belge; People v. Belge; Problem 3-5; Read entire
opinions of both Beige cases.
Model Rules 1.2 (d); 1.6 (a); 1.6 (b); 4.1 (b);
Texas Rule 1.05
Assignment 5
Exceptions to duty to protect confidences continued:
Risk of future injury or death; Problem 3-5
Spaulding v. Zimmerman; 263 Minn. 346, (1962)
Sarbanes Oxley Act
Problems 3-6, 3-7
Client frauds and crimes-financial
harm
Summary: pages 151-152
Revealing confidences to comply with other law
Use or disclosure of confidential information for
personal gain or benefit to another client
Model Rules 1.2 (d); 1.6 (a); 1.6 (b); 4.1 (b)
Texas Rule 1.05
Assignment 6
The Attorney-Client Privilege and Work Product Doctrine
Differences between confidentiality and privilege
Elements of attorney-client privilege: communication;
privilege persons; communication in confidence; and
communications for the purpose of seeking legal advice
Waiver of attorney-client privilege: client expressly
waived privilege; inaction can be defined as a waiver;
revealing privileged communication to a nonprivileged
person; putting privileged information into issue; disclose
a part of the conversation; information is disclosed to
comply with a court order.
Crime fraud exception:
Maintaining confidential information-video
Model Rules 1.6 (a); 1.9; 1.10; 1.13
Assignment 7
Death of client: Swidler & Berlin v. United States. 524 U.S. 399 (1998)
Problem 3-8
Work product doctrine
Privilege of corporation: Upjohn v. United States, 449 U.S. 383 (1981)
Model Rules 1.6 (a); 1.9; 1.10; 1.13
Assignment
8
Chapter
4, Relationships
between Lawyers/Clients
Formation of lawyer-client relationship
Togstad v. Vesely, Otto Miller & Keefe
Lawyers' responsibilities as agents: express authority;
implied authority; apparent authority
Competence
Problem 4-1
Competence-criminal
trial: Strickland v. Washington:
Diligence and candor-definitions:
Model Rules 1.2; 1.2; 1.3; 1.4; 1.14; 1.16;2.1; 6.1;
6.2; 8.4
pages 175-244
Read entire case
Assignment
9
Scope of representation-Chart
page 222-223
Who makes decisions? Jones v. Barnes, 463 U.S.745 (19830
Clients with diminished capacity: Problem 4-2
Terminating the lawyer-client relationship: Problem 4-3
Grounds for terminating the lawyer-client relationship
Model Rules 1.1; 1.2; 1.3; 1.4; 1.14; 1.16; 2.1; 6.1;
6.2; 8.4 (c)
Assignment
10
Chapter
12, The Provision of Legal Services
pages 569-600
Practice of law: business or profession?
Should restrictions be placed on lawyers?
Role of state in protecting the public
Diversity and discrimination
Bradwell V. United States, 83 U.S. 130 (1873)
Sweatt v. Painter, 339 U.S. 629 (1950)
Advertising: Background
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
access to court for targeted group; benefits to attorneys
Texas Adverting Rules, 7.01-7.07
Texas Ethics Opinion 573 (July 2006) Internet
Texas Advertising Committee requirements
Model rules 7.1-7.6
Assignment
11
Solicitation: Background
In person solicitation: Oralik v. Ohio St. Bar Assn, 436 U.S. 447 (1978)
Direct mail solicitation: In re Primus, 436 U.S. 412 (1978)
Shapero v. Kentucky Bar Assn, 486 U.S. 466 (1998)
Texas Rules 7.01-7.07;
Texas Advertising Committee requirements
Pro hac vice; multijurisdictional practice
Multidisciplinary practice
Unauthorized practice of law
Florida Bar v. Went For It, 515 U.S. 618 (1995)
Model Rules 5.3; 5.4; 5.5; 7.1 to 7.6
Assignment 12
Pro bono representation, voluntary or mandatory
Appointment of counsel
IOLTA
Phillips v. Washington Legal Foundation
524 U. S. 156 (1998)
Legal Services Corporation
Assistance for lawyers who choose public service
Alternative sources of funding for legal fees
Public Defender's Office
Model Rules 6.1; 6.2
Texas Rules 1.06-1.09
Assignment 13
Chapter 5, Conflicts of Interest; Current Clients
Background information
Conflicts of interest: current client, chart, pages 251-253
Problem 5-1
Conflicts between current clients-civi11itigation
Jeffery v. Pounds 136 Cal. Rptr 373 (1977)
Problem 5-2
IBM v. Levin 579 F2d 271 (3d Cir. 1978)
Model Rules 1.7; 1.8; 1.10; 1.18
Assignment 14
In re Dresser Indus. 972 F2d 540 (5th Cir. 1992)
In re Thornton 421 A2d 1 (DC 1980)
Fiandaca v. Cunningham, 827 F2d 825 (15tCir. 1987)
Problems 5-3, 5-4
Model Rules 1.7; 1.8; 1.10; 1.18
Assignment 15
Chapter 6, Current Conflicts/Practice
Settings
Conflicts with rights of insurer and insured
State Farm v. KAW 575 So.2d 630 (1991)
Representing both parties-divorce
A v. B 726 A2d 924 (NJ 1999)
In re Gerry 173 SW3d 901 (Tex. App- Tyler 2005)
Representing criminal co-defendants
Holloway v. Arkansas 435 US 475 (1978)
Model Rules 1.6; 1.7; 1.8; 1.13
pages 245-280
pages 281-314
Assignment
16
us v. Schwartz
Assignment
17
Chapter
283 F.3d 76 (2d Cir. 2002)
Representing organizations
Charts, pages 286-289
Representing buyer and seller
Simpson v. James 903 F2d 372 (5th Cir. 1990)
Model Rules 1.6; 1.7; 1.8; 1.13
Review Upjohn case-Chapter
4
7, Conflicts Involving Former Clients
pages 315-358
Is client a present or former client?
Charts, pages 317-319, 326
Connecticut v. Jones 429 A 2d 936 (Conn. 1980)
Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F2d. 221 (1978)
Problem 7-1
Addressing the conflicts of former clients
Maritraus, GP, Inc. v. Pepper, Hamilton ... 602 A2d 1277 (1992)
Conflicts between interests of present client who was
Represented by lawyer's former firm
Brennan's Inc. v. Brennan's Restaurant
590 F. 2d 168 (5th Cir. 1979)
Imputation of former client conflicts to
Affiliated lawyers; charts, pages 348-350
New Jersey v. Norman 697 A. 2d 511 (1997)
Model Rules 1.7; 1.9; 1.10
Assignment
18
Chapter
8, Conflicts Between Lawyers/Clients
Attorneys' fees, contracts, retainers, billings
Charts, pages 364-365; 390-391
Background information
Robert L. Wheeler v. Scott, 777 P 2d 394 (Okla. 1989)
Brobeck, Phleger & Harrison v. Telex
In the Matter of Fordham, 668 N.E.2d 816 (1996)
Mandell & Wright v. Thomas, 441 SW 2d 841 (1969)
Hoover Slovacek v. Walton, 206 SW3d 557 (2006)
Texas Rules 1.04; 1,04 (f); 1.08 (d); 1.14
Model Rules 1.4; 1.5; 1.8 (d);and (i); 1.16 (d); 5.2; 8.3; 8.4
Assignment
19
Protecting your client's property
Trust accounts
Fee disputes
Dividing fees with other firms and nonlawyers
Conflicts with lawyers' personal/business interests
Matter of Neville, 708 P, 2d 1297 (Arizona 1985)
pages 359-425
Phillips v. Carson 731 P. 2d 820 (Kan. 1987)
Imputation of lawyer-client conflicts to other
lawyers and firms
Screening attorneys
Haagen Das v. Perche No Gelato ...
639 F. Supp. 282 (1986)
Model Rules 1.5; 1.7; 1.8 (a), (c), (t), (h);
1.15; 5.2; 5.4;8.3
Assignment 20
Chapter 9, Conflicts: Gov't Lawyers/Judges
pages 427-452
Successive conflicts-former
and present
government lawyers
In re Sofar, 728 A 2d 625 (DC 1999)
Model Rules 1.9; 1.11; 1.12
Code of Judicial Conduct
Background information
Cheney v. U.S., 541 U.S. 913 (2004)
Cheney v. U. S., 542 U.S. 367 (2004)
In re Vincenti, 458 A. 2d 1268 (NJ 1983)
In re Vincenti, 704 A. 2d 927 (NJ 1998)
Cannons 1,2,3
Assignment 21
Chapter 10, Lawyers' Duties to Courts
pages 453-517
Background information
Charts, pages 464-467
Investigate before filing a complaint
Cases-Read
entire court opinion
Boyer v. KRS Computer/Business School, 171 F. Supp.2d 950 (2001)
Footman v. Cheung, 341 F. Supp.2d 1218 (2004)
Parker v. Vi go County School Corp.,
Gentile v. State Bar of Nevada, 501 U.S. 1030, (1991)
Problem 10-1
Model Rules 3.1; 3.3; 3.4 (a) and (b); 3.5; 3.6; 3.7; 8.4 (c)
Assignment 22
False testimony
Nix v. Whiteside, 475 U.S. 157 (1996); Problem 10-5
Concealment of physical evidence
State v. Olwell, 394 F2d 681 (1964)
In re Ryder, 381 F2d 713 (1967)
People v. Meredith, 613 P2d 46 (1981)
Morrell v. State, 575 P2d 1200 (1978)
Matter of Litz 721 NE 2d 258 (Ind. 1999)
Assignment 23
Chapter 11, lawyers' Duties to Adversaries ...
pages 519-567
Communications with lawyers and third persons
Cases-Read
entire court opinion
Apple Corps, Ltd v. International Collectors ... 15 F. Supp. 456 (1998)
In re Gatti, 8 P3d 966 (2000)
Contact with represented persons
Messing, Rudovsky and Weliky v .... Harvard, 764 N.E.2d 825 (2002)
Duties of prosecutors
Matter ofPaulter 47 P.3d 1175 (Colo. 2002)
Model Rules 3.8; 4.1; 4.2; 4.3; 4.4; 8.4 (c)
PROFESSIONAL RESPONSIBILITY
TERMS AND TOPICS
Admission to practice-Requirements
in Texas
Advancing funds to clients
Advertising-standards
Advertising-types
Advertising Commission-Texas
Attorney-client privilege
Attorneys borrowing funds from clients
Attorney's duty to the client
Attorney's duty to supervise associates/staff
Attorney's lien
Attorney's operating/expense account
Attorney's trust account
Barratry
Commingling of funds
Communications with client
Competence
Contingent fee
Confidentiality
Conflict of interest-attorney-client
Conflict of interest-other
parties
Diligence
Division of fees
Ethics-morals/values
Fee agreements
Fees-standards
Fees-types
Frivolous lawsuits
Gifts to lawyers by clients
Grievance procedures-Texas
Identity of client
Imputed disqualification
Incompetence
Informed consent
Independent professional judgment
Interest on Lawyers' Trust Accounts (lOLTA)
Judges-Standards
of conduct (Code)
Lawyer referral service
Legal ethics
Legal malpractice-definition
Legal malpractice-statute
of limitations
Licensing of attorneys-Texas
Misappropriation of funds
Misconduct
Moral character of attorney
Moral turpitude
Multi-jurisdictional practice
Multiple clients-representation
Negligence of attorney
Practice of law-definition
Pro bono services
Pro hac vice
Representation of client
Sanctions for misconduct
Screening a disqualified lawyer
Solicitations-types
Specialization
Referral fees
Retainer agreements-types
Terminating the lawyer-client relationship
Unauthorized practice
Unearned fees
Withdrawal from a case
Witness
Zealous representation