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Professional Responsibility
Course Information and Resources
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COURSE
INFORMATION
Professional Responsibility: Law 731
Fall 2009
Faculty
Information
FACULTY INFORMATION
Associate Dean and Professor Barbara Glesner Fines
Email
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glesnerb@umkc.edu
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Phone
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(816) 235-2380
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Office
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2- in the Cardozo suite
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Office Hours
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Mondays and Wednesdays from 1:30 to 3:00 pm
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Students are welcome to stop by my office at any time to
check for my availability or you may call or email me to make an appointment
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SCHEDULE
Class meets Mondays, Wednesdays
and Fridays from 11:00 to 11:50 in Classroom
04.
Coursework Begins Monday, August 24 and ends
Wednesday November 4
Labor Day Holiday Monday, September 7 (no school)
PLEASE NOTE – THE DATE
FOR THE in-class portion of the final examination has been changed
The examination will now be held on Monday November 16th
from 11:00 to 12:50 in Classroom 04 and in the Courtroom.
Those of you taking the MPRE this semester should
note that the exam will be on Saturday, November 7. Registration deadline is September 29th;
late registration October 15. See http://www.ncbex.org/multistate-tests/mpre/
for information on how to register, study materials and a guide to bar
admission requirements in all 50 states.
TEXT
AND COURSE MATERIALS
REQUIRED:
·
A paper copy of the ABA Model
Rules of Professional Conduct (2004 or later edition). Copies can be purchased through on-line
bookstores such as Amazon.com or at the campus bookstore.
Students must bring the rule book to class.
Failure to have a book in class will be considered an absence. When rules are assigned for class, be sure to
read all pertinent sections of the rules and the comments. Remember that over
the course of the semester, you should read the entire Model Rules, including
sections that we do not review in class.
·
Readings
COURSE POLICIES
& OBJECTIVES
Course Goal
My goal for your learning in
Professional Responsibility is that, by the end of the course, you will believe
that issues of attorney ethics and regulation are very important to every
attorney and that you will feel confident that you can identify and respond to
any ethical issue that might arise in your practice.
Learning Objectives
At the end of the course,
students should:
1.
You should be able to explain 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.
I will assess your
knowledge and skill in applying the regulations of lawyers through regular
quizzes and on the final examination.
2.
Be able learn more. You will have experience in researching issues of
professional responsibility and be aware of sources for additional help.
I will assess your ability
to find sources through a research assignment which you will complete in
collaboration with your law firm.
3. Aquire a habit
of thinking of the values underlying professional issues. Policy issues drive the interpretation of
much of the law – in Professional Responsibility those issues must drive
your own behavior. You should get in the
habit of thinking about your client, others, and the rule of law in every
ethical decision you face.
I will assess your
development of professional identity through oral and written responses to
discussion questions in class and in the final paper and exam.
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.
I will assess your ability
to avoid problems through a series of in class exercises on risk management.
A note on the relationship between the MPRE and
the Professional Responsibility Course
The Multistate Professional Responsibility Exam (MPRE) is NOT a law school exam
or a requirement of any law school course. Most students take the MPRE in the
same semester as they enroll in Professional Responsibility; however, the exam
can be taken before taking the course or in semesters after completing the course.
While there is a substantial overlap in subject matter between the professional
responsibility course and the MPRE, the law school course is not designed as a
"bar prep" course for the MPRE for two reasons:
First, the MPRE tests
some materials that are easily mastered without a law school course. It would be a waste of your tuition dollars
and time to take an entire law school course simply to master these rules.
Second, the MPRE tests
only a small portion of the knowledge required to practice law professionally
and ethically. The MPRE necessarily
cannot test doctrines for which there is substantial uncertainty or controversy
regarding their meaning or application nor can it test notions of “best
practices.” Yet this is the very
knowledge that attorneys must call upon in their day to day practice.
While much of the PR
course will prepare you to take the MPRE, you should understand that some
subjects tested on the MPRE are not covered in the PR class and some subjects
tested on the PR exam and through in-class assignments are not covered on the
MPRE.
Course Requirements and Grading
1. Regular and
respectful class attendance is required.
Regular, prepared, and
punctual attendance is required in the legal profession. To reinforce those habits in this course of
professional responsibility, the following policy will be applied.
You must attend all
classes unless excused. To be counted as
present in any class you must:
·
Arrive
on time
·
Have
necessary materials (a copy of the rules and other assigned material)
·
Remain
for the entire class session. (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).
·
Be
engaged in class. Students who are
noticeably disengaged (falling asleep, web surfing, reading materials unrelated
to the class) may be counted absent.
All absences must be
excused by providing at least 24 hours advance notice to me of your
absence. You need not give a reason
unless you are absent without advance notice. Failure to excuse an absence will
result in a grade penalty of 10 points.
Your absences (whether
excused or not) 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.
I take attendance through
a seating-chart each scheduled class and maintain attendance records for the
class. If at any time you have questions about your attendance, feel free to
contact me.
2. Students
are expected to prepare for class and participate in any discussions and
complete any in-class exercises.
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 will use quizzes or
short written exercises during the semester, to assist you in preparing for and
reviewing materials in class. 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. 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. Final grades will be based on several short
assignments & quizzes and a final examination.
The final exam will be in
two parts: a 2-hour, in-class exam will
examine your ability to spot issues of professional responsibility and apply
the rules to resolve those issue. 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. The in-class portion of the exam will be worth 33% of the final
grade.
The second part of the
final exam will be a problem for which I will ask you to collaborate with your
law firm to provide a resolution. You
will then be asked to draft a memorandum explaining and justifying your
resolution and a document necessary to achieving the resolution (a client
letter, motion, etc.). The project
portion of the final exam will be worth 33% of your final grade.
Students will be expected
to prepare a number of problem assignments and short quizzes over the
course of the semester. For some of
these assignments, students may collaborate on the out-of-class assignments
with their law firms with the understanding that all students will receive the
same grade for their collaborative work.
I will offer some 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 in class or through contributing thoughtful written reflections on
the materials or discussion after class. These assignments, quizzes and
participation will constitute 33% of the final grade.
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: INTRODUCTION TO
PROFESSIONALISM
Monday August 24
Who is a Professional?
- You should have completed before class the web research worksheet on the demographics of the profession and submitted it electronically to Professor GF.
- In class today we will arrange
ourselves into law firms, introduce one another, and think about what it
means to be a professional.
- Read
the Preamble to the
Some Additional
Demographics Themes on which many of you reported
Wednesday August 26
Who should be a lawyer?
·
Study Model Rules 8.2,
8.3 & 8.4
·
Review Flowchart of the Missouri Attorney Discipline Process
·
Complete Bases for Attorney
Discipline - to use
Web access to lesson
Friday
August 28
Who should be a lawyer?
· Study Model Rule 8.2
· Read the following portions of Missouri Supreme Court Rule 8 -- Admission to the Bar
8.03
--
Requirements of Admission to the Bar
8.04
--
Ineligibility
8.05
--
Application for Character and Fitness Report
8.07
--
Application For Bar Examination
8.08
--
The Bar Examination
8.11
--
Approval of Applications
8.13
--
Burden of Proof on Applicants
8.14
--
Immunity and Privilege
8.15
--
Oath or Affirmation
·
Complete Active
ListeningTechniques and prepare for your client
interview.
Heart
Problem – Attorney facts (including ADA Research Memo)
In
re Application of Head, 114 Ohio St.3d 29,
2007-Ohio-2550
WEEK TWO: INTRODUCTION TO REGULATION OF ATTORNEYS
Monday
August 31
What are 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, re-read the Preamble and be sure to bring your book to class. We will look at reports of disciplinary actions and examine those rules that are the most frequent and least frequent bases for discipline.
Wednesday September 2
Do Consumer Protection Laws apply to Lawyers?
- Complete
Sources of Law Regulating the Practice of Law
(alternative path to lesson – html only)
StudyMilavetz, Gallop & Milavetz, P.A. v.(html) (Word) (PDF)
Today’s
Key Points Lecture outline (html)
(Word)
Friday September 4
Why do lawyers enjoy a
professional monopoly?
- Study
Model Rules 1.8(f), 5.4 and 5.5
- Read
The
Unauthorized Practice of Law in Missouri – think about and
research the discussion questions at the end and be prepared to share with
your firm.
- Analyze
the following problem:
You have
been approached by a non-profit corporation to become part of their staff. The corporation provides a variety of
services, including shelter, to homeless individuals. 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
legal 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
Board of Directors’ policy regarding your position 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 would sign 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 THREE: THE ATTORNEY CLIENT RELATIONSHIP
Monday September 7 (Labor Day
– no class)
Wednesday, September 9
The attorney-client relationship
– Choosing Clients
Study
Model Rules 1.16, 6.2
Complete Choosing and Withdrawing
from Representation
Alternative
path (html version only)
Notes
from today’s class including problem handouts (doc)
(html)
Friday, September 11
Class will not meet today
WEEK FOUR: THE ATTORNEY CLIENT RELATIONSHIP, CONTINUED
Monday, September 14
Fees
Study Model Rules 1.5, 1.8(e), 1.8(j), 1.15, 1.17,
Complete CALI lesson on Fees
(alternative path to lesson – html only)
Study Swift, Currie, McGhee & Hiers
v. Henry, 581 S.E.2d 37 (
Study In
re Myers, 127 P.3d 325 (
Read Good Timekeeping Practices (Mo Bar
LPM)
Wednesday, September 16
The
attorney-client relationship – Scope and Authority
Study Model Rules 1.2
Read Glesner Fines
“Who’s
in Charge?” and prepare assignment to discuss in class. (This is the handout I distributed).
Friday, September 18
Competence - Causes and Cures
Study
Model Rules 1.1, 1.3., 1.4, 2.1, 6.2
In re: Larry D. Coleman, Respondent.
WEEK FIVE: THE DUTY OF
CONFIDENTIALITY
Monday, September 21
Overview of Confidentiality and the
Attorney Client Privilege
Read Glesner Fines – Confidentiality & Privilege
(Study especially the excerpts from the Restatement)
Complete CALI lesson on Confidentiality and
Privilege
(alternative
path to lesson – html only)
Slideshow (ppt) (Word
outline)
Study Model Rule 1.6
Wednesday, September 23
Class cancelled
Friday, September 25
Class cancelled
WEEK
SIX: CONFIDENTIALITY EXCEPTIONS
Monday September 28
Exceptions to
Confidentiality – Consent & Waiver
Read Glesner Fines – Exception to Confidentiality I – TO BE
DISTRIBUTED IN CLASS
Wednesday September 30
Exceptions to Confidentiality
– Inadvertent Waiver – Introduction to Third Party Protections
Friday October 2 - Monday
October 5
Exceptions to Confidentiality
– Harm to Third Persons
Read Glesner Fines – Exception to Confidentiality II -- TO BE
DISTRIBUTED IN CLASS
Study Rule 1.13
McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003)
Complete Exceptions to
Confidentiality to Protect Third Persons from Harm
(alternative path to lesson – html only)
Link for
the CBS
Interview on
Handout
– Variation
on Confidentiality rules
WEEK SEVEN: CONFIDENTIALITY CONTINUED
Wednesday October 7
Exceptions to Confidentiality - Financial Harm
& Candor in Negotiations
Glesner Fines –
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 9
Mock Interview Problem : Discussing Confidentiality with your Client
WEEK
EIGHT: CONFLICTS OF INTEREST
Monday October 12
Exceptions to Confidentiality –
Confidentiality and Candor to the Tribunal
Read Glesner Fines –
Study Model Rules 3.1, 3.2, 3.3,
United States v. Long, 857 F.2d 436, 444-47 (8th Cir. 1988)
Wednesday October 14
Conflicts of Interest
The basic analysis
Read Rule 1.7
Study Model Rules 1.8, 3.7
In re Carey,
89 S.W.3d 477 (Mo. 2002)
Friday October 16
Conflicts - Current Clients
Read In Re Dessler
WEEK NINE: CONFLICTS CONTINUED
Monday October 19
Conflicts – Former Clients
State ex rel. Kinder v. McShane, 87 S.W.3d 256 (Mo.
2002)
Read Rules 1.9
Read Chrispens v. Coastal Refining and
Marketing, Inc.
Wednesday October 21
Conflicts – Imputed Disqualification
Rule 1.9 and 1.10
Friday October 23
Conflicts Checking, Screening
& Waivers
Read Rule 1.18
Association of the Bar of the City of New York, Formal
Opinion 2003-03
Conflicts - Conflicts and Government
Attorneys
Study Model Rule 3.8, 1.11 & 1.12
Johnson v. State, 61 P.3d 1234 (Wyo. 2003)
WEEK TEN: FAIRNESS TO THIRD PERSONS
Monday October 26
Civility, Fairness & Wrestling with
Pigs
Study Model Rules 3.4, 3.5,
4.4
Dirty Tactics - from The Compleat Lawyer
Wednesday October 28
Dealing with Other Clients
Study Model Rules 4.2, 4.3
Smith v. Kan. City S. Ry. Co., 87 S.W.3d 266 (W.D. Mo. 2002)
Advertising and Solicitation
Read Rules 7.1-7.6
Monday November 2
Small group working sessions
Wednesday November 4
Rules Review
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)