PROFESSIONAL RESPONSIBILITY Spring 2015 Day Section: Monday/Wednesday 9:00-10:15, Room 803 Evening Section: Tuesday/Thursday 6:15-7:30, Room 803 Professor Robert Rubinson Angelos Center, Clinical Law Offices, Office 420 410-837-4094 E-mail: rrubinson@ubmail.ubalt.edu OFFICE HOURS: I prefer to arrange meetings in advance. My office is located in the Clinical Law Offices in the Angelos Center. I will accommodate any student s schedule in order to arrange a meeting. NOTE ABOUT DAY/EVENING CLASSES: I am teaching both day and evening sections of Professional Responsibility this semester. This Syllabus lists assignments for both. Given the Labor Day Holiday, I have added additional times to two day section classes to keep the subject of the day and evening sections consistent. Over the course of the semester, students may occasionally attend a different section should that be more convenient. Please let me know, however, should you wish to consistently attend the section that is not the one in which you are enrolled. GOALS FOR THE COURSE: Learn to identify ethical issues as they arise in practice. Gain familiarity with the ABA Model Rules of Professional Conduct and, when relevant, how state rules differ from the Model Rules. Engage in a critical analysis of the Model Rules, including the policies underlying them. Explore crucial issues facing the legal profession and its societal role, with a particular emphasis on providing access to justice. Reflect on the personal and professional choices available to law students and lawyers. REQUIRED TEXTS: Lisa Lerman & Phillip Schrag, ETHICAL PROBLEMS IN THE PRACTICE OF LAW (3D ED.) THE LAW GOVERNING LAWYERS (Susan R. Martyn, Lawrence J. Fox, W. Bradley Wendel, eds.) (2013-2014 ed.) NOTE: It is recommended that students obtain the most recent version of the Law Governing Lawyers, but it is acceptable for students to use the 2013 edition. All students must obtain one of these editions of the THE LAW GOVERNING LAWYERS. Printouts or copies of the ethical rules from databases or other sources are not permitted. ASSIGNMENTS: Assigned readings are set forth below. Readings will be supplemented with materials on the course TWEN site. Unless noted otherwise, assignments in the LAW GOVERNING LAWYERS refer to the Rule number of the current version of the American Bar Association's Model Rules of Professional Conduct. When assigned a Rule to read, you should review both the assigned Rule and skim the Comments associated with the assigned Rule. Sometimes the Page 1 of 6
syllabus lists specific Comments to read. For the Lerman/Schrag text, you need not read the Problems in the text unless noted in this syllabus. Please be sure to bring both assigned texts to each class. WEB PAGE: This course has a TWEN page through Westlaw. The page will include this syllabus and future revised syllabi, readings, and other materials. The site will also facilitate e- mail communications, including messages about the substance of the course and, if necessary, announcements about class cancellations or make-up classes. GRADES: 80% of your grade will be based on a final in-class examination. The exam may include matters covered in class or in the assigned readings whether or not we discuss the readings in class. You may bring the LAW GOVERNING LAWYERS text with you to the exam, but the text cannot contain full outlines. Highlighting, underlining, and cross-referencing are permissible. You may not bring any other materials to the exam. Please consult with me if you have questions regarding what notations in the text are permissible. 20% of your grade will be based on an in-class, 45 minute multiple choice midterm examination. The examination will cover secrecy and conflicts of interest. You may bring the LAW GOVERNING LAWYERS text to the examination. Additional grading adjustments: Preparation and participation are essential to your success in the course. These are key components of professionalism as well. I retain discretion to reward strong class participation by raising your grade one-half step if your point total is approaching the next highest grade. Please note that the most important factor is assessing class participation is quality, not quantity. Attendance in class is crucial. I will distribute an attendance sheet each class. ONLY THE LISTED STUDENT MAY SIGN THE ATTENDANCE SHEET. Apart from exceptional circumstances, I will deem all absences unexcused unless I receive notice by email, telephone, or some other means prior to or within twenty-four hours after an absence. I retain the discretion to reduce your grade by one-half step in light of excessive unexcused absences and/or excessive tardiness. This is separate from other consequences recommended or mandated by School of Law attendance policies. Laptops in class are to be used solely for note taking or access to class materials that are being discussed. Use of laptops for other purposes is unprofessional, disrespectful, and distracting to other students. A violation or violations of this rule may result in prohibiting the use of the laptop and/or a reduction of your grade by one-half step. Page 2 of 6
ASSIGNMENTS I. INTRODUCTION TO PROFESSIONAL RESPONSIBILITY AND THE REGULATION OF LAWYERS Day: 1/12 Views of the Legal Profession; Sources of Law; Reporting Misconduct Eve.: 1/13 Malpractice Readings: Lerman: pp. 43-51; 100-105; 111-120; Problem 2-3 Law Governing Lawyers, Rules 5.1, 5.2, 5.3, 8.3 II. ELEMENTS OF THE ATTORNEY-CLIENT RELATIONSHIP Day: 1/14 A Timeline of Representation; Competence and Diligence Eve: 1/15 Readings: Lerman: pp. 280-291; 370-372 Law Governing Lawyers, Rules 1.1, 1.2(c), 1.3, 1.4, 1.16; 14 of the Restatement of the Law Governing Lawyers 1/19: LABOR DAY - NO CLASS FOR DAY SECTION Eve: 1/20 Day: 1/21 1 Eve: 1/22 Day: 1/26 2 Eve: 1/27 Introduction: Confidentiality Readings: Lerman, pp. 160-173, Problems 3-1, 3-2 Law Governing Lawyers, Rule 1.6 Introduction: Confidentiality/Exceptions to Confidentiality Readings: Lerman, pp. 160-185, Problems 3-1, 3-2 Law Governing Lawyers, Rule 1.6 Exceptions to Confidentiality Readings: Lerman, pp. 173-200, Problems 3.3-3.5, 3-7 Law Governing Lawyers, Rule 1.6 Confidentiality: Financial Harms and Organizations Readings: Lerman, pp. 185-200; 201-202; 207-210; 217-220; 435-436; Problem 3-9 Law Governing Lawyers, Rules 1.2(d) and Comment [10],1.13(a), (b), (c) and Comment [2] Confidentiality: Financial Harms and Organizations Readings: Lerman, pp. 201-202; 207-210; 217-220; 435-436; Problem 3-9 Law Governing Lawyers, Rules 1.2(d) and Comment [10],1.13(a), (b), (c) and Comment [2] Day: 1/28 Attorney-Client Privilege Eve: 1/29 Readings: Lerman, pp. 231-253; 265-271 Day: 2/2 Secrecy: Review 1 The 1/21 class will end at 12:25. 2 The 1/26 class will end at 12:20. Page 3 of 6
Eve: 2/3 Readings: Lerman, 227-228, Problem 3-9 Secrecy In Class Review Problem (TWEN) Secrecy - In Class Review Problem - Organizations (on TWEN) Day: 2/4 The Client Perjury Problem Eve: 2/5 Readings: Lerman, pp. 655-665; 668-671 Law Governing Lawyers, Rules 3.3, 8.4 III. THE ADVERSARY SYSTEM Day: 2/9 The Adversary System: Truth and Advocacy; Witness Preparation Eve: 2/10 Readings: Lerman, pp. 644-654; 716-719; 675-677; 679-682 A Tragic Fire A Great Cross-Examination (TWEN) Law Governing Lawyers, Preamble, Comment [9]; Rule 1.3 Comment [1]; Rules 3.1, 3.2, 3.4(b), 3.8, 4.4. IV. CONFLICTS OF INTEREST Day: 2/11 Introduction to Conflicts of Interest Eve: 2/12 Readings: Lerman, pp. 380-412, Problems 6-1, 6-3 Law Governing Lawyers, Rules 1.7, 1.8 (skim), 1.9(a), 1.10 (a) Day: 2/16 Concurrent Conflicts Eve: 2/17 Readings: Lerman, 425-428; 439-447; 450-469 Law Governing Lawyers, Rules 1.7, and Comment 6, 1.8 In Class Problem Concurrent Conflicts (TWEN) Day: 2/18 Concurrent Conflicts/Conflicts in Representing Organizations Eve: 2/19 Readings: Lerman, pp. 428-434 Law Governing Lawyers, Rule 1.7, 1.9, 1.10 (a), 1.13(f) and (g) In Class Review Problem: Concurrent Conflicts of Interest (TWEN) In Class Review Problem: Organizations (TWEN) Day: 2/23 Successive Conflicts Eve: 2/24 Readings: Lerman, pp. 472-494 Law Governing Lawyers, Rule 1.7, 1.9(a) and (c), 1.10 (a), 1.18; Problem 8-1 Day: 2/25 Eve: 2/26 Day: 3/2 Eve: 3/3 Conflicts Review/Midterm Review Readings: In Class Conflicts Review Problem (TWEN) Law Governing Lawyers (as needed) Midterm Review Questions (TWEN) MIDTERM V. COUNSELING Page 4 of 6
Day: 3/4 Client Counseling and Allocation of Authority Eve: 3/5 Readings: Lerman, 334-338 Law Governing Lawyers, Rule 1.2(a),1.4, 2.1 Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement (TWEN) Day: 3/9 Representing Clients with Diminished Capacity; Communications with Represented Eve: 3/10 and Unrepresented Persons Readings: Lerman, pp. 346-348; 353-366; 747-751; 758-762; Problem 5-5 Cronin v. Eighth Judicial District (TWEN) Law Governing Lawyers, Rules 1.14, 4.2, 4.3 Day: 3/11 Guest Speaker: Glenn Grossman, Bar Counsel of Maryland Eve: 3/12 SPRING BREAK VI. NEGOTIATION Day: 3/23 Negotiation Ethics Eve: 3/24 Readings: Lerman, pp. 741-744 Law Governing Lawyers, Preamble Cmt. [2]; Rules 3.1, 4.1, 4.1 Cmt. [2] VII. THE BUSINESS OF LAW Day: 3/25 Hourly Fees Eve: 3/26 Readings: Lerman, pp. 524-538; 545-566 Law Governing Lawyers, Rule 1.5 Day: 3/30 Multidisciplinary Practice/ Fee Splitting/Contingent Fees Eve: 3/3 Readings: Lerman, pp. 566-589; 925-931 Law Governing Lawyers: Rule 1.5, 5.4 Disciplinary Counsel v. Smith (on TWEN) Day: 4/1 Lawyers Personal Interests Eve: 4/2 Readings: Lerman, pp. 593-605 Law Governing Lawyers, Rule 1.8 Day: 4/6 Marketing and Solicitation Eve: 4/7 Readings: Lerman, pp. 906-918 Law Governing Lawyers, Rules 7.1-7.5 Page 5 of 6
VIII. THE DISTRIBUTION OF THE RESOURCES OF DISPUTE RESOLUTION Day: 4/8 Eve: 4/9 Unauthorized Practice of Law/Multijurisdictional Practice/Distribution of Legal Resources Readings: Lerman, pp. 790-807; 919-925; 839-846 Excerpt from Rubinson, A Theory of Access to Justice (on TWEN) Law Governing Lawyers, Rule 5.5 Supreme Court of Washington Order (TWEN) Day: 4/13 The Pro Bono; Admissions to the Bar Eve: 4/14 Readings: Lerman, pp. 824-839; 855-857; 56-71 Law Governing Lawyers, Rule 6.1 New York Pro Bono Rules (on TWEN) Law Governing Lawyers, Rule 8.1 Maryland Character Questionnaire (on TWEN) IX. NEW TRENDS IN ADVOCACY Day: 4/15 Eve: 4/16 Day: 4/20 Eve: 4/21 ADR and Collaborative Lawyering Readings: ABA Ethics Opinion 07-447: Ethical Considerations in Collaborative Law Practice (TWEN) Robert Rubinson, Client Counseling, Mediation, and Alternative Narratives of Dispute Resolution (TWEN) Law Governing Lawyers, Rules 2.1, 2.1 Comment [5], 2.4 New Technologies/Exam Review Day: 4/22 3 Exam Review Eve: 4/23 Prepare In Class Review Problems on TWEN 3 This is the last class for both the day and evening section even though the last day of classes is Monday, April 27. The day class that would ordinarily meet on 4/27 is not needed because of the additional time added to day section classes earlier in the semester. Page 6 of 6