Professional Responsibility Syllabus
Spring 2017 updated April 25, 2017
FINAL EXAM
Monday, May 8, 2017
5:30 PM
Room 4-01
3 hours
MPRE style
partial open book
Learning outcomes and objectives - 2017
George W. Conk, Adjunct Professor & Senior Fellow, Stein Center for Law & Ethics, Fordham Law School
email: gconk@law.fordham.edu
Office: Room 8-122
Phone: 212-636-7446
Tuesdays 6:00 PM - 8:50 PM | Room 3-04
Required materials:
Casebook:
Professional Responsibility, A Contemporary Approach
Pearce, Capra, Green
(West – Second Edition)
Interactive casebook:
http://www.interactivecasebook.com (purchasers of hard copy also receive access to the interactive eBook version; SEE keycode on inside front cover)
ISBN 978-0-314-28781-6
Supplement:
The Law Governing Lawyers (LGL) Model Rules, Standards, Statutes, and State Rules of Professional Conduct
Martyn, Fox, Wendel (Wolters Kluwer 2016-2017 Edition)
ISBN: 978-1-4548-7537-6.
Any complete current version of the Model Rules and comments will suffice. I like Martyn, Fox because they include substantial excerpts from the 3rd Restatement - the Law Governing Lawyers, and selected federal statutes and rules.
Blogs:
Otherwise
(syllabus and policies, links to resources, etc.)
ContemporaryProfessionalResponsibility.com
Accountability
Ten (+/-) students will be assigned to be "on call" for classroom discussions each week.
Attendance is required. I must certify good and regular attendance to submit a passing grade. If you are unable to attend class you must drop me a note with brief explanation before class.
Classroom Participation Is Required and constitutes a significant part of your grade. That principally means being well prepared on the nights when you are "on call". Therefore there is no anonymous grading in this class.
Office hours by appointment on the hour and half hour. Please make appointments by email.
Deadlines: if you elect the term paper option deadlines must be respected and extensions must be requested in advance. Term Paper or exam option
(in addition to classroom participation and good and regular attendance):
Two options (choose one)
Final exam: in-class multiple choice type exam
Term paper: if you have elected to write a 15 page term paper the topic must be submitted to me for approval. You need not take the final exam - but classroom participation will still be considered in your grade.
Term paper due dates
Term paper topic proposals due: Tuesday, February 28, 5:00 PM
Rough draft due : March 31, 5:00 PM
Final paper due: April 28, 5:00 PM (no extensions for graduating students)
May 17 - last possible extended due date (for non-graduating students)
Any request for extension of any deadline must be made via email to me at least 48 hours before the deadline.
Requirements and format of Term papers
Stylistic tips and principles: Rhetoric: Aristotle, RBG, and the art of persuasion
And, of course, the classic: Strunk & White Elements of Style
Reading:
Principal reading will be from the casebook, supplemented by the relevant Rules and Comments in the Supplement. Page assignments are approximate.
The basic approach should be to read the excerpted cases in the casebook, then read the sample questions. Much of our discussion will center on the problems presented in the MPRE-style multiple choice questions in the casebook.
I will make additional assignments of cases and articles beyond the casebook . As you can see below there are hyperlinks to such materials.
Discussion leaders - when assigned - are "on call". You should be prepared to discuss each of the multiple choice questions in the case book, and the cases excerpted in the casebook. Discussion questions are often contained in the discussion slides posted on the syllabus page. But the main objective is to discuss the Rules, their meaning, purposes and implementation. The discussion therefore will often be free flowing.
Please be sure to bring the Law Governing Lawyers and the casebook to each class when you are on call. I strongly recommend bringing both to each class. Of course you may use the eBook.
Syllabus (Note: this evolves as the semester progresses)
Unit 1 - Introduction - What Does it Mean to Be a Lawyer?
Themes : What inspires and guides legal ethics? Role of the RPC's; the business vs. profession debate; personal morality and ideology.
Discussion slides - Chapter 1 Introducing Professional Responsibility and Legal Ethics
Read:
Chapter 1 - pages 1-25
Read: black letter Model RPC's and comments
Model Rules
Preamble
RPC 3.8 Special rules governing Prosecutors (Rule & comments)
Client lawyer relationship
MRPC 1.0-1.4 (Rules and Comments)
Competence, scope of representation, diligence, communication
MRPC 1.6, 1.7, 1.8, 1.9 (Rules & comments)
Confidentiality, Conflicts of interest (current and former clients), Duties to former clients
Responding to subpoenaes for client information - ABA Opinion 473
Preserving Confidentiality when moving to be relieved as counsel ABA Opinion 476
MRPC 1.10, 1.11, 1.13, 1.14, 1.16 (Rules & comments)
Imputation of conflicts, Special conflicts - former and current government employees
MRPC 1.15-1.18 (Rules & comments)
Safekeeping property, Declining or terminating representation, sale of law practice, duties to prospective clients
Model Rules
Preamble
RPC 3.8 Special rules governing Prosecutors (Rule & comments)
Client lawyer relationship
MRPC 1.0-1.4 (Rules and Comments)
Competence, scope of representation, diligence, communication
MRPC 1.6, 1.7, 1.8, 1.9 (Rules & comments)
Confidentiality, Conflicts of interest (current and former clients), Duties to former clients
Responding to subpoenaes for client information - ABA Opinion 473
Preserving Confidentiality when moving to be relieved as counsel ABA Opinion 476
MRPC 1.10, 1.11, 1.13, 1.14, 1.16 (Rules & comments)
Imputation of conflicts, Special conflicts - former and current government employees
MRPC 1.15-1.18 (Rules & comments)
Safekeeping property, Declining or terminating representation, sale of law practice, duties to prospective clients
Read: The Derrick Hamilton Case
1991 Brooklyn Murder Conviction to be cleared
Convicted man was his own best advocate
Unit 2
Ch. 2 Basic Elements of Law Practice
Read: Chapter 2, pages 27 - 91 EVERYONE
-Defining the practice of law – unauthorized practice, creating the lawyer-client relationship.
Defining the practice of law, Non-lawyer legal advisers and legal software
pp. 27-41 Q. 2-1 - 2-3) [Group 7]
Legalzoom - take a look at their websites
Draft a will at Legalzoom.com
Lawyers working with non-lawyers (pp. 41-60, Q. 2-4 to 2-14) [Group 8]
Creating the lawyer-client relationship (pp. 61-81, Q. 2-15- 2-20) [Group 9]
Chapter 2- Basic elements of Law Practice continued
Terminating the attorney-client relationship
Read: Chapter 2, pages 27 - 91 (Q. 2-1 to 2-3)
Legalzoom - take a look at their websites
Malpractice Liability
NY Pattern Jury Instruction 2-152
Ch. 2 Competence in criminal defense
Read:
Unit 2
Ch. 2 Basic Elements of Law Practice
-Defining the practice of law – unauthorized practice, creating
the lawyer-client relationship.
Read: Chapter 2, pages 27 - 91 (Q. 2-1 to 2-3)
Defining the practice of law, Non-lawyer legal advisers and
legal software
pp. 27-41 Q. 2-1 - 2-3) [Group 7]
Legalzoom - take a look at their websites
Lawyers working with non-lawyers (pp. 41-60, Q.
2-4 to 2-14) [Group 8]
Creating
the lawyer-client relationship (pp.
61-81, Q. 2-15- 2-20) [Group 9]
Termination
Q. 2-21 – 24 (pages
82-91) [Group 10]
Competence
Q.
2-26 – 2-31 pp. 92-103 [Group 11]
Q. 2-32-2-37 [ Group 12]
Read: casebook 103-121
Q. 2-32-2-37 [ Group 12]
Stephanie Cassimon
Timothy Carter
Anita Carroll
Kelly Carr
Malpractice Liability
What
is Malpractice?
Is
there any significant difference among NY, NJ, and the Restatement?
Discussants/presenters:
Stephanie Cassimon and Timothy
Carter
NY Pattern Jury Instruction 2-152
NJ
Model Civil Jury Charge: Attorney Negligence 5.51A,
5.51B
RPC
1.1, 1.2, 1.3, 1.4, 1.8
Discussants/presenters:
Anita Carroll, Kelly Carr
Lecture:
Lawyers Malpractice Insurance
Application- Lawyers Professional
Liability
Unit 3 - Ineffective Assistance of Counsel
Ch. 2 Competence in criminal defense
Video: Gideon's Army - (excerpt - NY Times) Public
Defenders struggle to answer the call
Read:
Casebook
pages: 122-130 (Rompilla v. Beard majority -
excerpted)
Rompilla v.
Beard 545 U.S. 374 - concurrence and dissent
Discussants/presenters
– [Group 6]
Rompilla
Majority: Leah Pall, Samantha Padilla
Rompilla dissent and
concurrence:
Przemyslaw Pawlikowski, Meredith Munro
In class video: Ted
Cruz Confronts Dreamer in Iowa - RedState
Read
Discussant/presenters: Jessica
Carnevale, Taylor Armstrong
Johnson, Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases:
An Immigration Gideon for Lawful Permanent Residents?
Discussant/presenters: Colette
Carman and Deborah Bessner
Background
Effective assistance of counsel (Justia)
6th Amendment - Constitution of the United States of
America
McMann v.
Richardson, 397 U.S. 759 (U.S. 1970)
Strickland
v. Washington, 466 U.S. 668(1984)
Search
"public defenders" on Otherwise - read
posts
Padilla v. Kentucky (2010)
– duty to inform defendant of potential immigration consequences
Jed Rakoff - Why Innocent People Plead Guilty (NY Review)
Curb False Guilty Pleas - NJ Law Journal Editorial Board
Is our criminal justice system fair?
What if anything does the reported funding crisis of public defenders
have to do with that?
Unit 4
Ch. 2 - Allocating Decision-Making Between Lawyers and Client
Discussion slides - Allocating Decision-Making
Read: Casebook p. 142-181
Q. 2-38, 2- 39, 2-40, 2-41
On call: Zachary Elkwood, Matthew Doyle
Following the clients directions:
2-42 Gilmore v. Utah (p. 156) and State v. Martini (NJ 1996)
Presenters discussants: Stan Yakoff (Gilmore)
Catherine Tremble (Martini)
The duty of communication with clients and allocation of authority:
The duty of communication with clients and allocation of authority:
I/M/O Howard Shipley Presenter: Natasa Siveski
March 123, 2015- order to show cause why Howard Shipley should not be disciplined (SCOTUS)
IMO Foley Partner Files Response SCOTUS OSC
Lyle Denniston, The Howard Shipley case: A lesson for others, SCOTUSblog (Mar. 24, 2015)
Supreme Court Rules regarding Petitions for Certiorari 14.3
Communication with clients NY RPC 1.4 Annotated
Presenters: Ace Pawlikowski, Ryan Surujinath
Unit 5
Chapter 3 The Business, Technology, and marketing of Legal Services
Finding clients (advertising, solicitation)
Read: casebook p. 183-246
Discussion slides - advertising
Q.3-1, 3-2, 3-3 and Zang v. Whitmer
Presenters: Colette Carman, Deborah Bessner
Regulating Lawyer's Commercial Speech
New York RPC 7.1 and 7.2 on advertising How do the NY Rules differ from ABA Model Rules?
Presenters: Benjamin Shanus and Samuel Scott
NY Restrictions on Advertising - Constitutional challenge
Alexander v. Cahill (2d Circuit 598 F 3d 79 2010) and
Q. 3-09
Presenters: Anita Carroll, Kelly Carr
NY City Bar Association Formal Opinion 2015-7 - Application of Attorney Advertising Rules to LinkedIn
Presenters: Gregory Dong and Stephanie Cassimon
AVVO
Is Avvo.com a proper lawyer referral or advertising service? Can it be fixed? What if lawyers owned it?
How AVVO works
Opinion 2016-3 Supreme Court of Ohio - Board of Professional Conduct
Background: Pennsylvania Bar Association Opinion 2016-200
Presenters on Avvo: Tim Carter and Jessica Carnevale
Endorsements by Judges
When the judge praises you - Dwyer v. Cappell
What does the 3rd Circuit permit? Bar?
Does the NJ Supreme Court's final Guideline practically prohibit truthful advertising? Should such advertising be barred?
Presenters: Elina Strakhman and Zachary Schreiber
Misleading advertising?
Joe Borenstein - Maine Lawyers for Maine People
Does Joe 's ad comply with NY RPCs?
Presenters on issues of misleading advertising (slides 50-65)
Matthew Doyle, Taylor Armstrong, Fidan Karimli
Fees and billing
Read: casebook p. 246-311
Discussion slides- fees & billing
NCAA seeks deep cuts in O'Bannon fees - Otherwise
Magistrate Order approving fees - July 13, 2015
Presenters of NCAA v. O'Bannon: Samantha Padilla, Leah Pall
What is the NCAA"s theory? The Magistrate's ruling?
What is the lodestar? How is it applied by the magistrate?
Introduction to Contingent fee practice - GWC
The flat fee trap? Norman Pattis
Presenters: Stan Yakoff
Does hourly billing present a conflict of interest between lawyer and client?
Does contingent fee billing?
What about fixed-fee transactional billing?
Is contingent fee billing or contingent fee billing more efficient? Does it serve the client better than hourly or transactional billing?
Aggregate litigation: class actions and multi-district litigation
discussion slides
Multi-District Litigation 28 USC 1407
Federal Rules of Civil Procedure R. 23 Class Actions
Florin v. Nationsbank, 60 F.3d 1245 (7 Cir. 1995)
Presenters: Natasa Siveski and Kamaljit Singh
Arrogating authority to control mass tort litigation?
Overview of World Trade Center MDL Settlement
What tensions are presented in mass tort settlements?
Mass settlement and client autonomy - Linda Mullenix
Presenters: John Robertson and Amira Privott Yeiser
How did judge Hellerstein manage the WTC disaster cleanup tort claims?
* Managerial Judging - Hellerstein, Henderson & Twerski
In the personal injury cases arising from the World Trade Center cleanup Was Judge Hellerstein's exercise of such authority justified ?
Presenters: Johnny Santa Cruz, Emily Safco
What did Judge Weinstein do regarding fees in the Zyprexa MDL? (see majority and concurring opinion)
Presenters: Ace Pawlikoski and Danielle Sayegh
Background:
Unit 7
Chapter 5 Conflicts of Interest
Chapter 5 Conflicts of Interest
Read: Casebook p. 453-502
Discussion slides - Conflicts of Interest in criminal cases
Is there a current Attorney-Client Relationship?
Rohm & Haas v. Dow and Murray v. Metropolitan Life
Casebook p. 410, -414 See discussion questions on slides.
Presenters: Chris Lisiewski, Daphny Lazarus
Direct Adversity and Materially Limited under R. 1.7
casebook p. 414 to 420 (Q.'s 5-1 to 5-6 and ABA Manual on Professional Conduct - Residential Home Loans
Presenters: Gokul Krish and Nadia Kashem
Permissible conflicted representation
"reasonably believes and competent and diligent representation"
casebook p 421 - 434 Q, 5-7-5-10, Sanford v. Commonwealth and ABA Opinion 05-434
Presenters: Fidan Karimli, Kali Jelen, Sarah Holm
Waiving future conflicts, Multiple representation
Q 5-11, p. 434-443
(Carnegie v. Summit, Ware v. Ware)
Presenters: Meghan Holleran, Matthew Hampsten
Concurrent conflicts (when our clients are in conflict)
Volunteer Lawyers for Justice - I/M/O Opinion 17-2012 of the Advisory Committee on Professional Ethics - Supreme Court of New Jersey (2014)
What was the reasoning of the ACPE? Why did the Supreme Court overturn the ACPE?
Presenters: Hansley Mohan, Deanna Minasi
Civilian Complaint Review Board - Richard Emery - Disqualifying Conflicts of Interest? (blogpost March 4, 2016 has discussion questions and resources.)
Presenters: Samantha Padilla, Meredith Munro, Mark Monaco
Richard Emery was Chairman of the Civilian Complaint Review Board. He has a say in policy decisions about the Board's mandate but was not a lawyer for the Board.
Prosecution is by a unit within the CCRB before an administrative law judge. The Police Commissioner makes all decisions.
Do you agree that Emery had a conflict of interest? What are the interests at stake? What do you think he should have done?
His firm represented a victim after the administrative judge had found misconduct. The Conflicts of Interest Board found screening to be sufficient to preserve the integrity of the Board. Do you agree?
RPC 1.7 and Marital Issues
Ware v. Ware, casebook p. 439
Is collaborative law a good solution to the problem of conflicts of interest in matrimonial law?
Should it be the norm - from which parties can withdraw only with court permission?
Presenters: Willyne Michel, Vincent Margiotta, Ja
Conflicts - Chapter 5 - Part 2 & 3
- Conflicts Between Clients Interests and Personal or Financial Interests of the Lawyer, etc.
- Conflicts Between Clients Interests and Personal or Financial Interests of the Lawyer, etc.
Read: Casebook p. 453-502
Conflicts in Criminal cases p. 502-532
Conflicts - Chapter 5 - Part 2 & 3
- Conflicts Between Clients Interests and Personal or Financial Interests of the Lawyer, etc.
Read: Casebook p. 453-502
Conflicts in Criminal cases p. 502-532
Discussion slides - conflicts of interest, part 2Discussion slides - Conflicts of Interest in criminal cases
Unit 9
Chapter 4 Attorney client privilege and the Lawyer's Duty of Confidentiality
Read:
class 1: casebook p.313-355 (basics of the privilege)
Discussion slides - privilege and confidentiality
Read:
class 1: casebook p.313-355 (basics of the privilege)
Discussion slides - privilege and confidentiality
Presenters (Federal Rules, Upjohn and Upjohn Warnings below): Kali Jelen, Sarah Holm, Gregory Dong
FR Evid 501 Privilege
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
FR Evid 501 Privilege
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
FR Evid 502
FRCvP 26
Upjohn v. U.S. 449 U.S. 383 (1981)
Unit 10
Casebook p. 356-376 (waiver and the crime-fraud exception)
pp. 376- 405 (confidentiality)
Discussion slides (beginning at # 47)
FRCvP 26
Upjohn v. U.S. 449 U.S. 383 (1981)
Practice guide: Upjohn warnings
Unit 10
Casebook p. 356-376 (waiver and the crime-fraud exception)
pp. 376- 405 (confidentiality)
Discussion slides (beginning at # 47)
Chapter 6
Obedience to the Law
Presenters on Sarbanes Oxley and lawyers as whistle blowers: Douglas Gretz, Kevin Greenawalt, Zachary Elkwood, and Matthew Doyle
Confidentiality under R. 1.6 and the Duty of Corporate Counsel Under Sarbanes Oxley
Casebook pp. 602-622
Discussion Slides - Sarbanes Oxley
Final Rule - SEC - 17 CFR 205.1 et seq. Implementation of Standards of Professional Conduct for Attorneys Securities and Exchange Commission
Preemption?
Unit 11
Chapter 7 Special Ethical Rules: Prosecutors and Judges
Discussion slides
RPC 3.8 Special Ethical Rules: Prosecutors
Presenter: Rachell Polsky: What makes Prosecutors different from other lawyers?
Did attorney Stroud do anything wrong? Did he violate RPC 3.8?
Chapter 7 Special Ethical Rules: Prosecutors and Judges
Discussion slides
RPC 3.8 Special Ethical Rules: Prosecutors
Presenter: Rachell Polsky: What makes Prosecutors different from other lawyers?
Did attorney Stroud do anything wrong? Did he violate RPC 3.8?
Read: casebook, Prosecutorial Discretion and Selective Prosecution
: pp. 653-686
The Decision to Charge
Factors Bearing on Prosecutors Discretion to Charge
Selective Prosecution
Presenters: Tim Carter, Anita Carroll, Kelly Carr, Jessica Carnevale
Judges should oversee Grand juries NY Court of Appeals Chief Judge Jonathan Lippman
A special prosecutor should be appointed: Andrew Cuomo
Background: Disclosure of all favorable evidence - Bruce Green
Brooklyn D.A. - Conviction Review Unit
D.A. Kenneth Thompson Address to NY City Bar Association on Wrongful Convictions
: pp. 653-686
The Decision to Charge
Factors Bearing on Prosecutors Discretion to Charge
Selective Prosecution
Presenters: Tim Carter, Anita Carroll, Kelly Carr, Jessica Carnevale
Should local prosecutors bow out of police shooting cases?
Who should investigate and prosecute police shooting cases?
Monroe Freedman, et al on Ferguson - Legal Ethics Forum
A special prosecutor should be appointed: Andrew Cuomo
Presenters: Colette Carman, Deborah Bessner, Taylor Armstrong
Background: Disclosure of all favorable evidence - Bruce Green
Brooklyn D.A. - Conviction Review Unit
D.A. Kenneth Thompson Address to NY City Bar Association on Wrongful Convictions
Willingham prosecutor charged with misconduct ten years after execution by the Marshall Project
Why innocent people plead guilty Judge Jed S. Rakoff
Plea Bargains and Prosecutors - an Exchange - Robert Swartz and Jed Rakoff
Why innocent people plead guilty Judge Jed S. Rakoff
Plea Bargains and Prosecutors - an Exchange - Robert Swartz and Jed Rakoff
Judges
Read: casebook pp. 746-794
An independent judiciary? How should we select judges? (Election or appointment)
When should judges recuse? Should a judge recuse when a litigant has financially supported his election? Have the dissent's warnings been realized? (view on Westlaw)
Capertonv. A.T. Massey, 556 U.S. 868 (2008)
The New Politics of Judicial Elections (Brennan Center)
What limits should be placed on judicial campaigning?
Wersal v. Sexton, 674_F.3d_1010, 8th Cir.2012
Does the 1st Amendment protect judges' fund-raising appeals?
Yulee v. Florida Bar 135 S.Ct. 1656 (2015)
John Oliver on the Yulee case
What's the matter with Kansas?
Bill threatens to defund judiciary -Brennan Center
Impeach judges?
The Iowa same sex marriage case and judicial retention elections
2012 - Justice Wiggins retained
Ouster of Iowa Justices Sends Message - (NY Times, November 3, 2010)
Should judges speak out on policy?
Right on Crime Statement of Principles
Should the U.S. Supreme Court be subject to to the Code of Conduct for United States Judges?
Maybe: Wheeler/Brookings Institute