/
Professional Conduct for Lawyers Professional Conduct for Lawyers

Professional Conduct for Lawyers - PowerPoint Presentation

celsa-spraggs
celsa-spraggs . @celsa-spraggs
Follow
371 views
Uploaded On 2018-10-28

Professional Conduct for Lawyers - PPT Presentation

Federal Health Law Course 2015 MAJ Elizabeth Witwer Agenda Client Capacity Attorney Capacity Supervisor Responsibilities Professional Responsibility Inquiries Recent Cases Resources Army Regulation 2726 ID: 700139

responsibility professional conduct lawyer professional responsibility lawyer conduct process tjag inquiry rule prb violation client djag legal rcm psi

Share:

Link:

Embed:

Download Presentation from below link

Download Presentation The PPT/PDF document "Professional Conduct for Lawyers" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.


Presentation Transcript

Slide1

Professional Conduct for Lawyers

Federal Health Law Course 2015

MAJ Elizabeth WitwerSlide2

Agenda

Client CapacityAttorney CapacitySupervisor Responsibilities

Professional Responsibility InquiriesRecent CasesSlide3

Resources

Army Regulation 27-26, Rules for Professional Conduct for Lawyers

Standards of Conduct, 5 C.F.R. Part 2635Model / State Bar Rules

State Bar Resources / Law Review ArticlesEncyclopedia of Ethical Failure, Department of Defense, OGC, Standards of Conduct OfficeAgency Professional Responsibility Office ReportsSlide4

CLIENT CAPACITYSlide5

P

o

t

ential Ethical Issues in Client CapacityDetermining capacity Decision-making Dealing with disclosuresUndue influenceSlide6

Le

gal Assis

tanc

e Scenario77 year old retired NCOEscorted to your office by one of her 4 adult children. Meets in private with you and says that she wants to update her will.In conversation, the client tells you she is becoming more concerned about growing forgetfulness and confusion.Slide7

L

e

g

al Assistance GuidanceABA Model Rule 1.14 – Client with diminished capacity“…the lawyer shall, so far as reasonably possible, maintain a normal client-lawyer relationship...”“…the lawyer may take reasonably necessary protective action…”Confidentiality?Applicability of ABA Model Rule 1.6?Slide8

L

e

g

al Assistance GuidanceABA Model Rule 1.6 – Confidentiality“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by...”“A lawyer may reveal information…to the extent the lawyer reasonable believes necessary: (4) to secure legal advice about the lawyer’s compliance with these Rules…”Slide9

Le

gal Assis

tanc

e ScenarioClient requests that her son sit in on consultationand speak for her.Wants to update her will – disinheriting the 3 children not present because they did not attend her 75th birthday.In conversation, the client tells you she is becoming more concerned about

growing forgetfulness and confusionSlide10

M

ili

ta

ry Justice ScenarioE4 with no deployment and series of minor misconduct (short AWOLs, disrespect, FTRs, spice use)Pre-Trial confinement ordered after return from latest AWOL TC tells DC that government would support a quick plea deal Initial investigation reveals potential delusionsSlide11

I

ssues

f

or Trial and Defense CounselProblem?Lacked mental responsibility for any charged offence and/orLacks capacity to stand trial.Solution? RCM 706 Inquiry (“sanity board”)Slide12

RCM 706 Inquiry:

Who initiates?

If it appears to

any commander who considers disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility…the belief or observation shall be transmitted through appropriate challenges to the officer authorized to order an inquiry into the metal condition of the accused.Slide13

RCM 706 Inquiry:

Who Orders?

Before referral: convening authority

After referral: military judge** Some exceptionsSlide14

RCM 706 Inquiry:

Composition

When ordered, referred to board consisting of one or more persons.

Each member of board shall be physician or clinical psychologist.Preference for psychiatrist or clinical psychologist.Slide15

RCM 706 Inquiry:

Findings

Specify reasons for doubting mental capacity or responsibility.

Answer specific questions contained in RCM 706.Slide16

RCM 706 Inquiry

Disclosure & Actions

Defense: Receives full report

Government: Summary of ultimate conclusions*Actions: Case suspended, charges dismissed, administrative action, charges tried by court-martial* See MRE 302Slide17

ATTORNEY CAPACITYSlide18

Substance Abuse

Diminish an attorney’s practiceLead to professional problems: missed deadlines, poor judgment, financial problems50% of lawyer discipline cases involve substance abuse problems

Lawyers Assistance Programs provide hope and confidentiality

!Slide19
Slide20
Slide21

Substance Abuse and Discipline

Implicates Rules of Professional Responsibility relating to competence, diligence, and misconduct.Confidential referral to an assistance program.Report to appropriate authority, agency, or body.

(Rules 8.1 - 8.5)Slide22

NONLAWYER ASSISTANTSSlide23

Rule 5.3 Responsibilities Regarding Nonlawyer

Assistants

(a) A partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make

reasonable efforts to ensure that the office has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;Slide24

Rule 5.3

(b) a lawyer having

direct

supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer;Slide25

Rule 5.3

(c) a lawyer shall be held responsible for conduct . . . if:

the lawyer

orders or ratifies the conduct; or(2) the lawyer (direct supervisor) knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial actions.Slide26

Rule 5.5 Unauthorized Practice of Law

A lawyer shall not:(b)

assist a person who is not a member of the bar in the performance of

activity that constitutes the unauthorized practice of law.Slide27

Comment

. . . so long as the lawyer

supervises the delegated work and

retains responsibility for their work.Slide28

PROFESSIONAL CONDUCT INQUIRIESSlide29

The Process

Authorities:

AR 27-1

CH 7 (Professional Responsibility)CH 8 (Mismanagement)AR 27-26 Rules of Professional ConductABA Model Rules of Professional ConductABA Model Code of Judicial ConductCode of Judicial Conduct for Army Trial and Appellate JudgesSlide30

The Process:

Applies to

1.

All lawyers, paralegals, enlisted, WOs, civilian staff (Judge Advocate Legal Services, (JALS)) 2. Any civilian involved in any matter that falls under TJAG’s responsibility and authoritySlide31

Policy

TJAG Policy Memo 14-02

“Every lawyer will receive annual training on the Army Rules of Professional Conduct for Lawyers (AR 27-26), State Bar rules, and other applicable ethical standards…” At a minimum, each lawyer should receive three hours of professional responsibility training each year. All nonlawyer personnel, who perform duty in an Army or joint legal office, should receive one hour of professional responsibility training each year. Slide32

Self-Reporting Policy

TJAG Policy Memo 14-02 cont’d…

If notified that an allegation of misconduct, impropriety, or unfitness has been made in connection with practice of law,

SHALL immediately report, through appropriate technical channels to the Chief, Professional Responsibility, the nature and status of the allegation(s). If charged with a criminal offense SHALL immediately inform, through appropriate technical channels, the Chief, Professional Responsibility, in writing of the charge. Slide33

The Process

Allegations originate from:

IG Referrals

ACCA / CAAFJudge Advocates and CiviliansClients / Third PartiesSlide34

The Process:

What is the nature of the allegation?

Professional Responsibility?

Applies to all JALS membersMismanagement?Applies to all JALS members who are supervisors in Army legal offices under TJAG jurisdictionBoth?34Slide35

Classify the Allegation

Process

PRPSI (PRB, DJAG, TJAG)No Violation or MinorViolationTJAG/DJAGCase ClosedMSupervisorNot SupervisorIf SJA/DSJA/CJA is respondent must go to DJAG (even if closed).If allegation is founded, action with DJAG/TJAG.Not MismanagementBothCDCDPSICD GOMOR Withdraw Art 27(b)(2) certification

Suspend Report to licensing authorityPSISlide36

The Process:

Professional Responsibility

Conduct Credibility Determination (AR 27-1, Ch 7)

SJA or Senior Supervisory JA (SSJA) can directInformal. No due process attaches. Purpose: Is allegation credible?No. Done.Yes. Does it raise substantial question as to honesty, trustworthiness or fitness?No. Done.Yes, then . . . Slide37

The Process:

Professional Responsibility

Coordinate with PRB to get permission to conduct a Preliminary Screening Inquiry (PSI).

Only PRB, DJAG, or TJAG can direct (authorize). SSJA (or PRB) appoints PSI Inquiry Officer.Due process attaches. If PSI finds:No violation, or minor or technical violation, then SSJA and PRB close case, with counseling as appropriate.Substantial violation, then action by DJAG or TJAG.Slide38

The Process:

Mismanagement

Respondent a supervisor?

No. Done.Yes. Proceed.CD procedure is the same (AR 27-1, Ch 8).Informal. No due process attaches. Purpose: Is allegation credible?No. Done.Yes. Adversely affect legal services? Or, misuse gov’t resources? Or, violate ARs or TJAG policy memoranda?No. Done.Yes, then . . . Slide39

The Process:

Mismanagement

Coordinate with PRB to get permission to conduct a Preliminary Screening Inquiry (PSI).

Only PRB, DJAG, or TJAG can direct (authorize). SSJA (or PRB) appoints PSI Inquiry Officer.Due process attaches. If PSI finds:No violation, or minor or technical violation, then SSJA and PRB close case, with counseling as appropriate.Exception: If respondent is SJA / DSJA / CJA, DJAG must resolve. Substantial violation, then action by DJAG or TJAG.Slide40

The Process:

Double Whammy

PSI finds no violation (or minor, technical):

Closed.* Counseling as appropriate.PSI finds violation:TJAG / DJAGGOMORWithdraw Art 27(b)(2) certification – JASuspend from RCM 109(a) practice – JA or civ attySuspend from JA dutiesReport to licensing authority* In Mismanagement cases, file must go to DJAG for action / closure if Respondent is SJA, DSJA, CJA or equivalent.Slide41

The Process

Inquiries are informal (

i.e.

, no board).Need thorough analysis supported by evidence. Conclusions alone are insufficient.Evidence must support findings.Findings must support recommendations.Standard: Preponderance of Evidence.(Clear and convincing in 99% of substantiated cases.)Slide42

Professional Responsibility Trends

For all ranks, most commonly violated rule is Rule 8.4 (Misconduct).Rule 8.4 Misconduct: commit criminal act; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation

Many young JAs don’t understand (& complain about):

Use and purpose of legal technical (tech) chainSJA’s role as senior legal advisor responsible for all legal advice, including subordinates’ legal adviceNot all direction given to subordinate lawyer is an attempt to improperly influence the lawyer’s professional judgmentSlide43

Mismanagement Trends

Mismanagement ComplaintsLeadership styleDiscontent over evaluations

Management decisionsPerception of unfairness

Perception of reprisalSlide44

Department of JusticeOffice of Professional ResponsibilitySlide45

Department of JusticeOffice of Professional ResponsibilitySlide46
Slide47

Department of Justice

Office of Professional ResponsibilitySlide48

Department of JusticeOffice of Professional ResponsibilitySlide49

Department of JusticeOffice of Professional ResponsibilitySlide50

SOCO Encyclopedia of Ethical FailureSlide51

Federal agent demoted for identifying herself as a federal agent.Slide52

The ultimate debate:Coke or Pepsi?Slide53

Pin-heads ignore GPC proceduresSlide54

Support my organization: I can shoot big guns.Slide55

Financial Disclosures Are a

NuisanceSlide56

$11,000 Fine for Failure to FileSlide57

Uncle Sam Wins!Slide58

General discovers that aides are not supposed to feed catsSlide59

Questions? Suggestions?

MAJ Witwer

Kathryn.witwer@usuhs.edu