Miami Law School

Professional Responsibility

Instructor: Prof John Flood

Office: G373

Office Hours: 10 to noon Tuesdays or by appointment

Tel: (305) 284-5443

For those of you taking the MPRE you may find this link useful. It is the Practicing Law Institute (PLI) Online MPRE web page. It has a good outline, lectures, and practice exams, and it is all free.

1. The website for the Florida Bar is at www.floridabar.org

The link for Lawyer Regulation is in the left hand menu and here you will find the "Rules for Regulating the Florida Bar".

2. The Legal Profession Blog is a good source of up to date information on legal ethics problems.

3. Here are Lerman & Schrag's PowerPoint slides for the first chapter.

4. This is an overview of the Florida Bar Disciplinary system.

5. Regarding the firing of at will employees for reporting breach of disciplinary rules to the State Bar, this is Snow v. Ruden in Florida which leans the same way as Illinois, i.e. no protection for reporters.

6. Here Lerman & Schrag's Powerpoint slides for chapter two, part one (Rule 1.6).

7. This is a 2003 letter from the Florida Bar to the SEC objecting to proposals changing the reporting of fraud. Read in conjunction with the sections in the book on fraud and7 Sarbanes-Oxley.

8. Here is a link to the Florida section of the Legal Ethics website at Cornell Law School, which is maintained by Brad Wendell, one of the authors of the Law Governing Lawyers book you are using. The Florida section is prepared by Holland & Knight, a law firm in Tallahassee. This will be of considerable use to you.

9. Here are Lerman & Schrag's Powerpoint slides for the fraud section, part two, of chapter two.

10. An interesting article by William Simon of Columbia Law School discussing lawyers' roles and ethics post-Enron and in relation to tax shelters.

11. Here is a short article by Lex Mundi on corporate attorney-client privilege in Florida.

12. These are the Lerman & Schrag Powerpoint slides for Chapter 3 "Attorney-Client Privilege".

13. This is the ABA report and commentary on conditional admissions where mental illness and addiction are involved from the ABA Midyear Meeting 2008 in Los Angeles.

14. In the Matter of Neal is not unusual, Prof Richard Abel of UCLA shows how immigration lawyers can be scurrilous in their treatment of clients. Recall the case of the Little Hearing at 91 which also dealt with immigration lawyers. See, Practicing Immigration Law in Filene's Basement, 84 North Carolina Law Review 1449-1500 (2006).

15. Here are the Lerman & Schrag Powerpoint slides for chapter 4 on forming the lawyer-client relationship.

16. These are the Lerman & Schrag Powerpoint slides for chapter 5 on conflicts of interest. Do note that the scenario in Problem 5-2 falls under “direct adversity” because the law firm is suing one of its own clients. Also the firm’s work on behalf of one client might be materially limited by obligations to other. Therefore, no conflict only if all of 1.7(b) is met.

17. This is a recently published article on lawyer mobility and conflicts of interest. It is: Lawyer Mobility and Legal Ethics: Resolving the Tension between Confidentiality Requirements and Contemporary Lawyers' Career Paths by Eli Wald. The abstract says: "When a lawyer moves from one firm to another, compliance with two separate ethical obligations can be extremely difficult: keeping information about former clients confidential and avoiding conflicts with interests of those clients. Avoiding conflicts usually requires disclosing confidential information about the former clients in order to discover if aspects of the new law firm's practice may represent conflicts with those clients' interests. The near impossibility of simultaneously complying with both ethical obligations has always posed a theoretical problem. However, in the traditional landscape of legal practice - where lawyers rarely moved between firms - the problem rarely arose and therefore, was easier to ignore.

Current law practice has changed. Lawyer mobility between firms is now a prevalent career path. This new reality leads to this Article's two inquiries. First, how satisfactory are the current approaches to moderating the requirement of confidentiality in order to facilitate the discovery of potential conflicts? And second, if the increase in lawyer mobility reflects societal perceptions that providing legal services is becoming more like a business and less like a profession, should ethics requirements support and regularize that developing conception or should they seek to reinforce the traditional view that the practice of law is a profession?"

18. These are the second instalment of the Lerman & Schrag slides on conflicts of interest concerning Rule 1.13 where the client is an organization.

19. Geoffrey Hazard is the doyen of ethics' law professors and has co-authored an interesting article on independent directors' counsel. This relates to client as organization. The abstract says:

"Over the last thirty years, the independent directors have occasionally been represented by independent counsel. Instances include: special litigation committees reviewing derivative suits; independent committees in parent subsidiary mergers and MBOs; and internal investigations of misconduct. We predict that, with the additional legal requirements imposed on independent directors by the Sarbanes Oxley Act and related changes to SEC rules and Stock Exchange listing requirements, the independent directors, especially those on the Audit Committee, increasingly will be represented on a continuing basis by independent legal counsel. Out of this will emerge a new figure in the board room: the Independent Directors' Counsel. We examine the advantages and disadvantages of adding this new actor in the boardroom, and consider issues posed and implications for corporate law and legal ethics."

20. I asked you what the situation is regarding lawyers in Florida representing both sides in a divorce. Here is one reply I received:

"I found this: "It is unethical for an attorney to represent both sides in a divorce and to give legal advice to both husband and wife," from this site.

I could not find anything in the rules themselves explicitly addressing the situation, but the quote I did find was from the Florida Bar's website. This ethics opinion

may also be relevant. Although I didn't find the majority opinion explicitly clear on the topic, the dissenting opinion does make clear that there are no circumstances that an attorney can represent both parties because the opinion lays out the most cordial scenario and says that while they would allow it, the majority does not. Assuming exceptions have not been made since this opinion, the law proscribes dual representation of divorcing spouses in all situations."

21. Note carefully that Florida's Rule 4-1.9 is different from the Model Rules. Florida did not modify in 1989. Therefore part of the Model Rule 1.9 is to be found in Florida Rule 4-1.10, relating to former law firm. See the Florida section for Rule 1.9 in the Cornell Legal Ethics website.

22. A recent item from The Lawyer in which the general counsel of Clifford Chance, one of the largest law firms in the world, argues that conflicts rules should be widened such that sophisticated clients should be able to consent to all conflicts onf interest.

22. Here are the Lerman & Schrag slides on successive conflicts, relating to former clients.

23. Note that there is a difference between the Model Rules and Florida's Rule 4-1.11 "in that it omits the provision in MR 1.11(c)(2) allowing a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator to negotiate for private employment pursuant to MR 1.12(b)."

24. These are first Lerman & Schrag slides for Chapter 7 on conflicts of fees.

25. This newspaper article describes the demise of Brobeck in 2003. Hubris? Perhaps.

26. Two articles (here and here) from the Boston Globe on the outcome of the tobacco litigation in Massachusetts. The first tells how the former Attorney General made the deal and the second reports the judgment on the law firms' suit and the then current Attorney General's attitudes to the law firms. It's interesting to reflect on the differences between the two AGs.

27. Finally, according the New York Times, "On March 20, 2008, Melvyn Weiss agreed to plead guilty and admit that he conspired to pay off plaintiffs in lawsuits brought against corporations on behalf of shareholders who contend corporate misconduct occurred. Under the plea agreement, he faces up to 33 months in prison and would pay back $9.75 million in "ill-gotten gains" along with a fine of $250,000." The article also provides links to stories going back to 1983 on the Weiss firm's exploits in filing shareholder suits against corporations, and also representing Holocaust victims. The firm was reputed to have received $250 million in fees during its reign.

28. Continuing the discussion of the lawyer-client relationship and the impact fees have on it, here is a draft of a paper I'm currently working on. It's called, "Ambiguous Allegiances in the Lawyer-Client Relationship: The Case of Bankers and Lawyers". Part of the paper is an analysis of emails between the lawyers and bank clients about the fees being asked for and the clients' demands for reductions. It's quite enlightening to see the horse-trading that goes on in which promises of future work are traded against immediate reductions in fees.

29. For trying to charge $300,000 of his personal expenses to client billings, a former Latham & Watkins partner has plead guilty and faces up to 20 years in jail and disbarment. To compare--Latham & Watkins reported profits per partner of over $2m.

30. One of the fastest growing areas in corporate litigation in the UK and Australia is the development of third party litigation funding. Law firms such as Freshfields and Skadden are actively seeking investors into this field. Funders expect to receive between 25% and 40% of the recovery. This hasn't started in the US yet.

31. These are the PowerPoint slides for the second half of Chapter 7 on legal fees and disputes.

32. In the second part of chapter 7 you are warned about using clients' trust accounts to see you through difficult times. Here is a cautionary tale of a lawyer who was caught using clients' accounts and embezzling from a community soccer club.

33. Here is the Florida case concerning the vexed question of helping desparately poor clients to live while they pursue justice: Florida Bar v. Taylor, 648 So. 2d 1190 (Fla. 1994).

34. I've given you a link to one of my papers on the lawyer-client relationship at 28 (above). This is a link to a story about one of the first scholars ever to write about the lawyer-client relationship, Douglas Rosenthal. He went on to become a successful antitrust lawyer. Rosenthal recently sued the Chicago law firm, Sonnenschein, where he was partner, for $8.2 million in lost fees. He eventually received a lot less. Rosenthal's conclusion:“It’s much harder being a client than being a lawyer.”

35. I discussed in class how Enron used its management, accountants and lawyers to obfuscate its actions in creating the special purpose vehicles that were the cause of its downfall. Here is Jeffrey Skilling's appellate brief. He is currently serving 24 years in a jail in Minnesota.

36. Here is a further article on the defrauding Latham & Watkins lawyer from the Wall St Journal. It reinforces my point that so often people risk their reputations--the most valuable asset they possess--for so little. Strange?

37. This article from the New York Times discusses the dubious roles of lawyers involved in foreclosing the homes of people caught in the subprime trap. It seems that they are cutting corners, being criticized by the courts yet making huge fees from this work.

38. Following my mention of the case of the lawyer caught having sex with a prisoner in a Pennsylvania jail, this is the report and findings of the disciplinary board. It describes the entire jail visit in detail. You are warned.

39. Here are some Florida Bar Opinions on attorneys liens. Note there are two types: retaining and charging liens. Each has its own rules. Liens often seem to crop up in contingent fee cases.

40. These are the Lerman & Schrag PowerPoint slides to Chapter 8 (part 1) on counsel's duty to others.

41. This is a truly tragic tale of how Rule 1.6 can have extremely damaging consequences.

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