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Professional Responsibility
Course Information and Resources
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COURSE
INFORMATION
Professional Responsibility: Law 731
Fall 2008
Faculty
Information
FACULTY
INFORMATION
Associate Dean and Professor Barbara Glesner Fines
Email
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glesnerb@umkc.edu
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Work Phone
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(816) 235-2380
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Office Location
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1-511 in the
Holmes suite
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Office Hours
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Tuesdays 9:00
to 11:00 pm
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SCHEDULE
Class meets Mondays, Wednesdays and Fridays from 11:00 to 11:50 in
Classroom 04.
Classes begin August 18
and end November 5.
Please note: We will NOT
meet on the following dates:
Monday, September 1 (Labor Day)
Friday, September 12
Monday-Friday September 22-26 (three classes).
The final examination will be held on FRIDAY, November 14,
2008 from 10:30 to 12:30.
Those of you taking the MPRE
this semester should note the following important dates:
Sat. Nov. 8, 2008 Test Date
Application Receipt Deadline: Sept. 30, 2008
Late Application Receipt Deadline: Oct. 16, 2008
Examinees must be present at 9 a.m. on test day
TEXT AND COURSE MATERIALS
All readings and cases are
provided through on-line links provided on this course page.
You will also need to have
a copy of the ABA Model Rules of Professional Conduct (2004 or later
edition). Copies can be purchased at the
UMKC bookstore, through on-line bookstores such as Amazon.com
or at the campus bookstore. Alternately, ABA Model Rules of Professional
Conduct are also currently available on line at the ABA Center for Professional
Responsibility. I have ordered the Standards
supplement by John Dzienkowski for the UMKC bookstore. It is an excellent compendium of the rules
and other standards. Be sure to read all
pertinent sections of the Model Rules and the comments that are related to the
topics being covered when you are preparing for class. Remember that over the
course of the semester, you should read the entire Model Rules, including
sections that we do not review in class.
COURSE POLICIES
& OBJECTIVES
Course Objectives
Professional
Responsibility is the only course in the curriculum (save perhaps some aspects
of business organizations courses) for which the client you are learning to
serve is yourself. Accordingly, it is critical that you master "the
law of lawyering" as you will be subject to that law no matter what your
practice setting. Like any regulation, some of this law is fairly
straightforward. Since, by this stage in your legal education, you should
have a fairly strong facility with learning and applying rules, we will learn,
but not dwell upon, these rules.
Rather, our energies will
be primarily directed toward those questions for which the law provides only
vague, shifting, and sometimes contradictory regulation and for which our
decisions about how to use that law to guide our own conduct must necessarily
reach beyond the law. As the Preamble to the Model Rules of Professional
Responsibility points out: "The rules do not, however, exhaust the moral
and ethical considerations that should inform a lawyer, for no worthwhile human
activity can be completely defined by legal rules." Thus, we will
explore the underlying ethical, moral and political themes in these
rules. We will debate the ethics of lawyer actions that are not covered
by "the rules". We will try to apply the same rigor and
discipline in our reasoning about ethical issues as we do in parsing a section
of the Uniform Commercial Code.
Moreover, we will take
some opportunities to observe how those choices are put into action in the
day-to-day practice of attorneys. How does the duty of communicating with
a client translate into interviewing and counseling techniques? How does
the inherent conflict of making your living from your client's troubles
influence your choice of billing practices? How does the responsibility
to police one another's practices translate into organizational structures of
law partnerships? These and other questions will give us a practical
grounding for our theoretical perspectives.
Learning Objectives
At the end of the course,
students should:
1.
Master the law governing
lawyers. You should understand the relationship between bar-generated disciplinary
codes and other sources of law, such as cases, statutes and regulations.
You should be able to identify the core issues and governing law in any
troublesome situation and be able analyze complex professional responsibility
problems in the core areas of concern for attorneys:
·
the
four C’s of the attorney-client relationship : Competence, Communication,
Confidentiality, and Conflict-free representation
·
the
three C’s of the attorney-court relationship : Candor, Compliance, and
Civility
·
and
the FAIR rule for the attorney’s relationship with everyone else in
society : Fairness, Access, Integrity, Responsibility
Finally, you should
be able to recognize the tensions and gaps among these concepts, which are
inherent in the regulation of attorneys.
2.
Be able learn more. You will have experience in researching issues of
professional responsibility and be aware of sources for additional help.
3.
Have a clearer vision of your own professional identity and your stance on
critical questions of professional role.
I hope that you already believe that the role of attorney confers a
special responsibility to insure justice and that this class will help you to
clarify how specific choices you make in your professional life can fulfill
that responsibility.
4.
Be able to avoid getting yourself,
your fellow attorneys, and your clients into trouble, by having learned some
practical strategies for avoiding common professional pitfalls.
Course Requirements and Grading
1. Regular and
respectful class attendance is required.
I will apply the UMKC School of Law attendance policy. Student
absences may not exceed four class sessions.
Each absence exceeding this limitation results in a one-step letter
grade reduction for the course to be assessed by the Dean’s Office, e.g.,
from "B" to "B-" or from "A-" to
"B+". Absences in excess of six
class sessions shall result in the student's administrative withdrawal from the
course provided the student is in good standing at that time, i.e., provided
the student has not earned the grade of "F" for work completed at the
time of withdrawal. Students who are not in good standing will receive a grade
of "WF" for the course.
Students will be required to make up any missed assignments to receive
credit for the class. Attendance will be
taken by sign-in sheet at each scheduled class. It is dishonest to sign in an
absent student.
Please be respectful
of your colleague’s investment in learning and refrain from behaviors
that disrupt or distract. Please be on time and do not leave the
classroom until the class hour is ended. (If you have a medical condition that
requires you to leave class, just let me know and I will insure that you are
seated where you can leave and return without disrupting others). Please
turn off cell phones unless you have a true emergency situation requiring that
you be constantly available (in which case, let me know of this need and turn
your cell phone to vibrate). Please do not use computerized devices for
entertainment or communication during class time. If I ask that you close
your computers during discussions or presentations, please do so. Students in violation of these rules will be
counted absent for that day.
2. Students
are expected to prepare for class and participate in any discussions and
complete any in-class exercises.
Students should
purchase or download a copy of the most recent (2004 or later) version of the
ABA Model Rules of Professional Conduct (copies available through the ABA and at the UMKC bookstore or on-line bookstores such as Amazon.com) and insure access to the
web-based materials for the course. Additional materials will be
distributed in class. If you have difficulty in obtaining any course
materials, please let me know as soon as possible and I will assist you.
Please complete all
reading assignments before class. I will conduct classes through a
variety of methods. Because the ability to collaborate is an essential
aspect of the practice of law in nearly all settings, many classes will include
group exercises and discussions.
Unless otherwise notified
by the instructor, students are responsible for all materials assigned, regardless
of specific coverage in class. The pacing and content of assignments may
be adjusted to reflect student mastery and interest.
I sometimes use quizzes or
short written exercises during the semester, to assist you in preparing for and
reviewing materials in class. I do not grade these exercises but will
sometimes collect them to assess the progress of the class as a whole. On
occasion, we will incorporate brief role playing exercises into our study. Please consider that the value of role
playing exercises turns largely on your willingness to play the role
sincerely. For some topics, I will
lecture on the assigned topic. Lecture outlines will be provided to
minimize your need for note taking. I hope to invite at least two guest
lecturers to the class. If you have a particular speaker you would like me to
invite to the class, please let me know early so I will have sufficient time
and flexibility to make arrangements for their visit. Please feel free to contribute news items,
videos of television programs, lawyer jokes and advertisements. I will
try to incorporate as many of these contributions into the classroom activities
as time and the syllabus allows.
3. For most students, final grades will be based
on several short assignments & quizzes and a final examination.
The final exam will be a
2-hour, in-class exam. It will be open book and open note. The
final exam may cover anything we discuss in class (including guest speaker
presentations), as well as any questions that may be answered by using the
Model Rules or the reading materials assigned for class.
Students will be expected
to prepare a number of problem assignments and short quizzes over the
course of the semester. Students may
collaborate on the out-of-class assignments with up to two other students
(i.e., groups of 3) with the understanding that all students will receive the
same grade for their collaborative work.
I will offer five short quizzes during the semester. In addition, I will award class participation
points to students who are called upon or who volunteer to contribute to class
discussions. Students have the
opportunity through these assignments, quizzes and participation to earn up to
20% of the final examination score points.
I expect that if students stay current with the material, complete
assignments, and participate in class
regularly they will have little difficulty in earning the maximum points
available.
Disabled Student Services
UMKC endeavors to make all
activities, programs and services accessible to students with disabilities.
A Campus Coordinator for Disabled Student Services is available to
arrange for reasonable accommodations. If you need accommodations, it is
important that you contact the Coordinator as soon as possible to arrange for
providing appropriate documentation and the prescribing of reasonable
accommodations in the classroom and for exams. For information call (816)
235-5696. Speech and hearing impaired use Relay Missouri Law
School
COURSE SYLLABUS
Week One: August 18-22
Introduction to Professional Responsibility
Complete web research worksheet on the demographics of the profession -
bring your answers to the first class to be handed in.
Professionalism
and the Profession
Read Preamble to the Model Rules
Read Glesner Fines - Materials on Professionalism
(URL: http://www.law.umkc.edu/faculty/profiles/glesnerfines/PRSUPP/pr1.htm)
Admission to Practice
Study Model Rule 8.1
Complete CALI lessons
on Admissions
(URL: http://www.cali.org)
- to use
We will conduct interviews in class.
SLIDESHOW FROM WEEK ONE (PPT) (HTML)
IN RE HEAD – case
the interviewing exercise is based on (pdf)
(html)
Week Two: August
25-29
Overview of the Model Rules of
Professional Conduct
Skim through the Model
Rules of Professional Conduct, get a sense of how things are organized and
what's covered, read the Preamble and bring your book to class. On Monday
we will be surveying a number of admission cases (including the case we will be
working on tomorrow) to see if the same issues arise in the disciplinary
rules. On Wednesday I'll lecture a bit of the system of discipline and
we'll begin a scavenger hunt through the rules. On Friday we will finish
the scavenger hunt. Winners get a prize!
Slideshow from the week (PPT) (HTML)
Week Three: September 3-5 (no class Sept. 1)
Access to Justice - Forms of
Practice
Study Model Rule 1.1, 5.4, 5.5, 5.7, 6.1, 6.3, 6.4, 6.5, 6.6
(Note that Rule 6.6 is a new ABA rule – look online for the rule if you
do not have it in the edition of your rule book)
Read Rhode, “Equal Justice
Under Law” speech at http://www.scu.edu/ethics/publications/submitted/rhode/equal-justice.html
Discussion Problem: Think about and prepare (or research and summarize) one proposal
for a program/policy that would increase access to justice. Be prepared
to discuss both the needs it would address and the costs that would be
involved. If the rules of professional conduct would require amendment to
implement the proposal, indentify the necessary changes.
Analysis problem:
You have been approached by a
non-profit corporation which provides a variety of services, including shelter,
to homeless individuals to become part of their staff. Your job would
involve representing the individuals receiving services from the corporation in
a variety of civil and criminal matters. You would be a salaried employee
of the corporation. Your salary would be funded by a separate grant to
the corporation from a large charitable entity. The grant is specifically
conditioned on its being used to hire a full-time staff attorney to provide
such services.
No fee for the representation would
be charged the individual client by either the attorney or the
organization. Sometimes, however, the actions the attorney may bring
would provide for fee shifting, so that awards might be made to the attorney
for the value of his or her services when actions are successful.
The organization’s
Board’s stated policy is (1) it will not interfere in the attorney client
relationship between the attorney and any individual to whom the attorney
provides legal services, (2) it will not in any way impose restrictions on the
attorney’s exercise of professional judgment regarding the handling of a
particular case. Each individual for whom the attorney provides legal
services signs an engagement agreement with the attorney specifying that the
organization is not undertaking to give legal advice or represent the
individual and that the attorney-client relationship is only between the
individual and the attorney.
Would such an arrangement violate
the rules against practice with nonlawyers or splitting of fees with
nonlawyers? In particular, consider whether this arrangement would
violate RSMo § 484.020 or Supreme Court Rules 4-5.4 and 4-5.5?
Week Four : September 8-10 (no
class Sept 12)
Monday, September 8 and
Wednesday, September 10 -
Class will not meet on Friday,
September 12
Competence - Causes and Cures
Read Glesner-Fines, Sources of Authority
Read Glesner Fines, Competence, Diligence and Communication
Study Model Rules 1.1, 1.3.,
1.4, 6.2
Moot Court Problem : Criminal Malpractice
Moot Court Problem: Motion to Withdraw
Week Five: September 15-19
The attorney-client relationship - Authority
Study Model Rules 1.2
Read Glesner Fines Who’s in Charge?
Read article excerpts from: Robert F. Cochran, Jr., Deborah L. Rhode, Paul R. Tremblay, Thomas
L. Shaffer, Symposium: Client Counseling and Moral Responsibility, 30 Pepp. L.
Rev. 591 (2003)
Discussion Problem Authority to Settle
Discussion Problem The Elder Client
The attorney-client relationship
- Business
Read Glesner Fines - Good Business is Good Ethics
Study Model Rules 1.5, 1.8(e), 1.8(j), 1.15,
1.17, 5.4
Swift, Currie, McGhee & Hiers v. Henry, 581 S.E.2d 37 (Ga.
2003)
Read Good Timekeeping Practices (Mo Bar LPM)
Study In re Myers, 127 P.3d
325 (Kan., 2006).
Discussion Problem: The Billing Audit
Discussion Problem: The Contingent Fee Patent
Friday September 19 - We will have a closed book quiz on the
materials covered to date
Week Six: September 22-26
Class will not meet this week. Take some time to
observe at least one hour of a court proceeding, preferably in an unfamiliar
court. If you need help finding a court watching opportunity, email me
and I will make the necessary arrangements.
Prepare a one-page summary of your observation with the
following information:
Date
and time of observation
Courtroom and judge
Case type(s)
What issues of professional responsibility did you observe?
Week Seven: September 29-October 3
Overview of Confidentiality, the
Attorney Client Privilege, & Work Product Protection
Read Glesner Fines – Confidentiality & Privilege (Study especially the excerpts from the Restatement)
Complete CALI lesson on Confidentiality & Privilege
http://www2.cali.org//lessons/web/pr16/flash.html (flash version)
http://www2.cali.org//lessons/web/pr16/index.php (html version)
Study Model Rule 1.6
Read Fed. R. Civ. P. 26
This
will be a "black-letter" week. We will work through a series of
problems designed to teach you the content of these rules. After we have worked
through the problems this week, we will go back and discuss tensions in
the rules and how this works in practice next week.
Week Eight: October 6-10
Special Problems in
Confidentiality
Mock Interview Problem :
Discussing Confidentiality with your Client
Disclosure to Protect the
Public
Read Model Rule 1.13
McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003)
Mock Interview Problem: Revealing Environmental Violations
Candor in Court
Study Model Rules 3.1, 3.2, 3.3,
United States v. Long, 857 F.2d 436, 444-47 (8th Cir. 1988)
Fed. R. Civ. P. 11
Candor in Negotiations
Study Model Rules 2.3 & 4.1
Roth v. La Societe Anonyme Turbomeca Fr., 120
S.W.3d 764 (W.D. Mo. 2003)
Friday, October 17 we will have a closed-book quiz on
the materials covered to date
Week Nine: October 13-17
Conflicts of Interest
The basic analysis
Read Rule 1.7
The Attorney’s Self
Interest:
Study Model Rules 1.8, 3.7
In re Carey, 89 S.W.3d
477 (Mo. 2002)
Current Clients
Read In Re Dessler
Problem Discussion: The Disinheritance
Problem Discussion: The Adoption Proposal
Conflicts Checking and Waivers
Read Rule 1.18
Association of the Bar of the City of New York, Formal Opinion
2003-03
State ex rel. Kinder v. McShane, 87 S.W.3d 256 (Mo. 2002)
Week Ten: October 20-24
Conflicts, Former Clients and Imputed Disqualification
Read Rules 1.9 and 1.10
Read Chrispens v. Coastal Refining and Marketing, Inc.
We will cover this material in two classes of lecture
Conflicts - Conflicts and
Government Attorneys
Study Model Rule 3.8, 1.11 &
1.12
Johnson v. State, 61 P.3d 1234 (Wyo. 2003)
Week Eleven: October 27-31
Civility, Fairness &
Wrestling with Pigs
Study
Model Rules 3.4, 3.5, 4.4
Study Model Rules 4.2, 4.3
Dirty Tactics - from The Compleat Lawyer
Smith v. Kan. City S. Ry. Co., 87 S.W.3d 266 (W.D. Mo. 2002)
Week Twelve: November 3-5
Advertising and Solicitation
Study
Model Rule 7.1-7.6
INTERNET RESOURCES FOR THE STUDY OF PROFESSIONAL
RESPONSIBILITY
·
ABA Model Rules of
Professional Conduct
Selected Missouri
·
Rule
2 -- Code of Judicial Conduct
·
Rule
4 -- Rules of Professional Conduct
·
Rule
5 -- Complaints and Proceedings Thereon
·
Rule
8 -- Admission to the Bar
·
Rule
9 -- Practice by Nonresident Attorneys
·
Rule
13 -- Legal Assistance by Law Students
·
Rule
15 -- Continuing Legal Education
·
Rule
16 -- Substance Abuse Intervention
·
Rule
17 -- Alternative Dispute Resolution
Missouri
·
Missouri
Legal Ethics Counsel Informal Advisory Opinions
·
Missouri
Supreme Court Formal Advisory Opinions
Selected
- Rules Relating to
Discipline of Attorneys
- Rules Relating to
Judicial Conduct
- Rules Relating to Admission
of Attorneys
- Rules Relating to
Continuing Legal Education
- Rules Relating to
Mediation
Selected Research Links
·
American Legal Ethics Library (Cornell
University LII)
- ABA Center for Professional
Responsibility
- National
Organization of Bar Counsel (NOBC)
- Association
of Professional Responsibility Lawyers
- Find Law Index : Ethics and Professional Responsibility
- Legal
Profession Blog
- Freivogel on Conflicts
- Legal Ethics Forum
- Legal ethics.com (Internet Legal Services)