Key Points from Class
Wednesday August 26, 2009
BGF
Handout: What was I supposed to get out of that
1. Be able to read the rule rules and comments and make text-based arguments from those rules
a. Close reading of the rule (e.g., Rule 8.4(b) criminal act - rule says it is misconduct to "commit a criminal act" -- not "be convicted of a criminal act" -- so a charge and conviction are not necessary)
b. Application of rule to facts (e.g., apply “through the acts of another” to a fact situation)
c. Analysis
of structure and authority of a rule (e.g., argue the impact of a comment in
the interpretation of a rule (not binding but persuasive))
2. Learn some key interpretations of Rule 8.4
a. Misconduct can be based on conduct not otherwise expressly governed by other disciplinary rules, conduct not otherwise prohibited by law, and conduct while in one's private capacity.
b. Burden of Proof is on the state in discipline but on the applicant in admission
c. Courts have generally upheld the broad and open-textured language of rule 8.4 as constitutional
d. Discipline
is not punishment, but protection of the public, so double jeopardy does not
apply.
3. Be able to identify and argue some of the tensions in defining misconduct
a. Broad v. narrow construction of the rules (e.g., If an attorney violates a rule he or she believes is unconstitutional or otherwise invalid, will the attorney be subject to discipline?)
b. Predictability
v. Discretion (e.g., what is criminal conduct that “reflects adversely on …
fitness as a lawyer”? what is “conduct prejudicial to the administration of
justice”? Should these standards be more
clearly defined or is an open-textured rule better?)
4. Be able to consider some of the practical influences on administration of a discipline system
a. Degree of risk to the public
b. Costs of investigation and prosecution
c. Alternatives to discipline (e.g., lawyers assistance programs)
Key points from Problem Discussion
1. Besides disbarment, discipline can include reprimands and suspensions. Suspensions can be stayed with conditions, or for a period of time. An indefinite suspension and a disbarment are one in the same. Reinstatement is a process similar to admission – the burden of proof is on the applicant but instead of the board of bar examiners being the first step, the applicant for reinstatement must petition directly to the Supreme Court.
2. Imposition of sanctions, like criminal sentencing, is a highly discretionary process. The key factors are the nature of the violation, the state of mind, and the injury caused or threatened. A number of aggravating and mitigating circumstances will influence the decision as well, one of the most important being an individual’s reputation and prior conduct.
3. Because the lawyer regulatory system one that relies heavily on self-regulation, severe sanctions flow from a failure to cooperate with bar authorities or a failure to fully disclose information when required.
Collaborative Practice
This problem gave you some practice in group discussion and decision-making on ethical issues.
Handout: Improving Group Decision-making
"Teams typically possess an informational advantage over individuals, enabling diverse personal experiences, cultural viewpoints, areas of specialization, and educational backgrounds to bring forth a rich pool of information on which to base decision alternatives and relevant criteria."
Jessica R. Mesmer-Magnus & Leslie A. DeChurch, Information Sharing and Team Performance: A Meta-Analysis, 94:2 J. Applied Psych. 535 (2009) available at http://www.apa.org/journals/releases/apl942535.pdf
To improve group decisions:
- Establish a structure and focus for discussion
- Be open to sharing ideas and information
- Work to share unique perspectives and information
This chart from the article cited above shows the most effective (bottom right) and least effective (top left) characteristics of team relationships.
