PRL 101 slides, Sept. 1

Legal ethics
CC-BY-SA

Transcript

1. Ethics and Professional Responsibility creative commons licensed (BY-NC-SA) flickr photo by masondan: https://flic.kr/p/eyP8qM
2. Brief format Memo form To: From: Date: RE: [case citation]
3. Case? Watkins v. Watkins (Ala. Civ. App. 2015)
4. Brief format Facts: (what happened?) Issue: (what question did the court answer?) Holding: (what was the answer?) Rationale: (why?)
5. Read carefully! Look up words you don’t know (there will be several!)
6. Brief assignment: language • intestate • clear and convincing • ore tenus • cohabitation • common law marriage • ceremonial marriage • presumptive • purported • affirm • guardian ad litem
7. Brief assignment • Facts? • Issue? • "Whether a couple who claim to be married in the community where they live but not in the community where the husband works have made sufficient public recognition to create a common-law marriage." • "Can a common-law marriage exist where one partner keeps the relationship a secret at work?" • Holding? • Rationale?
8. Ethics? "well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues." http://www.scu.edu/ethics/practicing/decision/whatisethics.html
9. Professional Responsibility? • Professional • licensing • code of ethics • Responsibility to act ethically in all professional dealings • Rules of Professional Conduct
10. UPL?
11. Ala. Code §34-3-1? • Unlawful Practice of Law • Penalties: – Misdemeanor • Not more than 6 month • Not more than $500.00 – Private cause of action: Malpractice! – Ineligible for law license
12. Ala. Code §34-3-6? • Appear as an advocate . . . before a court; or • For a consideration . . . advise another as to law, or draw a . . . document . . . affecting or relating to secular rights; or • For a consideration. . . does any act in a representative capacity in behalf of another to enforce or establish a right; or • As a vocation, enforces, secures, settles, adjusts or compromises . . . disputed accounts
13. Considering Divorce ? ? If there is no contest, you can get your divorce WITHOUT ATTORNEY'S FEE. The whole cost will be only $100.00. You pay court costs of $36.00. WRITE: TOWNLEY SERVICES P.O. Box 317 Kent, AL 36045 CONFIDENTIAL AND GUARANTEED
14. You own a house that you own as an investment and rent for supplemental income . A tenant has defaulted on the lease and you file a lawsuit in small claims court for rent under the lease.
15. Robert is the executor of the estate of his deceased daughter. He files a complaint in the Circuit Court. One of the counts in Mr. Godwin's complaint stated claims on behalf of the daughter's estate for the recovery of money and for specific performance of a contract.
16. Your cousin was involved in a minor auto accident, and the driver of the other car was uninsured. She asks you to help fill out the complaint form for small claims court to sue for $500 to fix the dent in her fender.
17. You next door neighbor asks what bankruptcy is and if it can be used to stop a foreclosure or repossesion.
18. Your next door neighbor tells you he is behind on his mortgage and car payments and asks if he should file bankruptcy to prevent foreclosure or repossession.
19. Michael is a federal inmate in the State of South Carolina. He helped a fellow inmate appeal his conviction for possession of crack cocaine with the intent to distribute, and the U.S. Supreme Court has granted certiorari.
20. ?? • Inmates have the right to draft legal documents for other prisoners because there is no “reasonable alternative” to their services. • But in a dissenting opinion, a justice wrote that, without law degrees, prison clerks may not dispense legal advice.
21. Rules of Professional Conduct http://judicial.alabama.gov Law Library > Rules of Court > Ala. Rules of Professional Conduct
22. Go to http://www.alabar.org Select News & Publications > Alabama Lawyer, Alabama Lawyer July 2015 Turn to "Disciplinary Notices," p. 280 Law Abiding Citizens: Jennifer Dawn Gray Daisies: Arnold Bush, Jr. What rules were violated? What was the penalty?
23. RULE 1.1? • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
24. 1.6? • (a) A lawyer shall not reveal information relating to representation of a client unless the client consents . . . except • (1) to prevent a crime likely to result in imminent death or substantial bodily harm; or • (2) to establish a claim or defense on behalf of the lawyer . . .in any proceeding concerning the lawyer’s representation of the client.
25. RULE 1.7? • a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: • (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and • (2) each client consents after consultation.
26. RULE 4.2? • In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
27. RULE 4.3? • In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
28. RULE 3.3? • a) A lawyer shall not knowingly: • (1) make a false statement of material fact or law to a tribunal; • (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or • (3) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
29. RULE 7.3? • A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no familial or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer’s behalf.
30. Rule 7.1? • A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (c) compares the quality of the lawyer's services with the quality of other lawyers' services,