Professional Responsibility: Heroes & Villains
http://law.gsu.edu/ccunningham/PR/
Clark D. Cunningham
Georgia State University College of Law: Law Course 6020
Fall 2013
Wednesdays, 6:00 - 7:40 pm
Room 201

Syllabus
Draft Based on Fall 2012 -- There probably will be fewer in-class quizzes than listed below

All Assigned Readings are published on this course web site and linked directly to this Syllabus except for the duplicated materials distributed in class.
To be handed out (no charge) at the first class:
(1) Materials on Georgia Legal Ethics (which include the Georgia Rules of Professional Conduct): optional download as a 185 page MS Word document
(2) Case Studies, Volume I: The Garrow Case -- Privileged Information by Tom Alibrandi & Frank Armani (edited)


When a Georgia or ABA Model Rule of Professional Conduct is assigned, the accompanying comments are also assigned unless otherwise indicated.
GRPC = Georgia Rule of Professional Conduct. MR = ABA Model Rule of Professional Conduct. GLE = Materials on Georgia Legal Ethics

This course requires you to view videos on a computer to complete several assignments. To view the videos, the computer you are using must have the QuickTime software installed. To download this software for free, click on the following link:
Free Version of QuickTime


CLASS ONE: NOTE: Be prepared to change seats within the first 5 minutes of class as we form "firms" for the semester. All the assigned Georgia Rules of Professional Conduct and Advisory Opinions are printed in "Materials on Georgia Legal Ethics".

  1. Course Introduction
    Student Questionnaire (doc) (pdf) -- please complete and email before class or bring to class on 8/14
  2. American Bar Association Standards for Approval of Law Schools: Preface, Preamble, and Standard 302 (a)(5) (pdf)
  3. Developing Professional Judgment: a More Ambitious Goal for the Professional Responsibility Course (12 page pdf)
  4. Barbara Glesner Fines, Using Team-Based Learning in the Professional Responsibility Course (8 page pdf) (excerpted for students in this course by permission of the author)
  5. NPR Interview with Lt. Commander Charles Swift (excerpts) (4 page pdf)

    There may be an in-class graded quiz on Readings 6 - 21 in Class Two on 8/21/12; Readings assigned for Class Two may also be covered on such a quiz.

    What Are the Georgia Rules of Professional Conduct?
  6. Georgia State Bar Rule 4-101: Enforcement of the Georgia Rules of Professional Conduct
  8. Georgia Disciplinary Procedures
  9. GRPC: Preamble
  10. GRPC: Scope

    Regulation of Lawyer Advertising Through the Bar Disciplinary System
  11. Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (established 1st Amendment right for attorneys to advertise)
  12. GRPC 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES
  13. GRPC: 7.2: ADVERTISING
  14. GRPC 7.4: COMMUNICATION OF FIELDS OF PRACTICE
  15. GRPC 7.5: Firm Names and Letterheads
  16. Read ABA MR 7.1 (including the comment)
  17. ABA MR 7.2, 7.4 and 7.5 (not including the comments)
    Comparison chart on Rule 7.1 (Word document)
  18. In the Matter of Anonymous, 775 N.E. 2d 1094 (Ind. 2002) (example of deceptive lawyer advertisement)
  19. Sample website that violates the Georgia Rules of Professional Conduct (created by Robert Bexley, COL '10):ppt pdf
  20. Falanga v State Bar of Georgia , 150 F.3d 1333 (11th Cir.1998)
  21. Formal Advisory Opinion 05-6: Ethical propriety of lawyer advertising where the intent is to refer out to other lawyers (GLE 163-5)


    CLASS TWO:
    Quiz during Class Two will be open book and will only test readings assigned for Class 1 and 2 that are reprinted in Georgia Legal Ethics     (including of course all GRPC rules that have been assigned).
    Class 2 Quiz is just a "trial run" and scores will not count toward course grade (added 8/26/12).

    Enforcing the Georgia Rules of Professional Conduct
  22. GRPC 5.1: Responsibilities of Supervisory Lawyers
  23. GRPC 5.2: Responsibilities of Subordinate Lawyers
  24. GRPC 5.3: Responsibilities for Nonlawyer Assistants
  25. GRPC 5.5: Unauthorized and Multijurisdictional Practice of Law
  26. GRPC 8.1: Bar Admission and Disciplinary Matters
  27. GRPC 8.3: Reporting Professional Misconduct
  28. GRPC 8.4: Misconduct
  29. GRPC 8.5: Choice of Law
  30. GRPC 9.1: Reporting Requirements
  31. GRPC 9.2: Prohibition on Agreements not to File Disciplinary Complaints
  32. GRPC 9.3: Cooperation with Disciplinary Authorities
  33. GRPC 9.4: Jurisdiction and Reciprocal Discipline
  34. Disciplinary Rules 4-103 to 4-111 (GLE 117-120)

    Solicitation and Referral Fees
  35. Ohralik v Ohio State Bar Ass'n, 436 U.S. 477 (1978)
  36. In re Primus, 436 U.S. 412 (1978)
  37. Margaret Love, Summary of Ethics 2000 Recommendations for Rules 7.1-7.3
  38. MR 7.3
  39. GRPC 7.3: Direct Contact with Prospective Clients
  40. GRPC 5.4: Professional Independence
  41. GRPC 1.5(e) and Comments 7,8 (fee sharing among lawyers)
  42. Formal Advisory Opinion 03-3: Is it ethically permissible for an attorney to enter into a “solicitation agreement” with a financial investment adviser? (GLE 160-62)
  43. Matter of Kennedy, 268 Ga. 751 (1997) (8 month suspension for compensating a person to recommend his employment by a client) (2 pg pdf)
  44. In re Maniscalco, 275 Ga 238 (2002) (8 month suspension for compensating a person to recommend his employment by a client) (2 pg pdf)
  45. In re Barnes, 275 Ga. 812 (2002) (3 year suspension for compensating a person to recommend his employment by a client) (Justices Hunstein and Thompson would have disbarred) (2 pg pdf)
  46. In re Robbins, 276 Ga. 124 (2003) (disbarment for compensating a person to recommend his employment by a client) (note procedural history and evidence of prior discipline) (2 pg pdf)
  47. Five possible quiz questions (pdf) (Class 2 quiz will include other questions as well)

    CLASS THREE
    There will be an open-book quiz during Class Three that may review readings for Class 1 and 2 as well as test readings for Class 3. Questions that refer to readings not reprinted in Georgia Legal Ethics will be posted on the syllabus in advance. Make sure you always bring your copy of GLE to class.

    Georgia Disciplinary Procedures
  48. GLE 126-29

    Ways to Get Advice on the Application of the Georgia Rules of Professional Conduct
  49. GLE 130-34

    Fees
  50. GRPC 1.5(a) -(d): Fees
  51. Goldfarb v Virginia State Bar, 421 U.S. 773 (1975)
  52. J. Auerbach, Unequal Justice 44-50 (1970)
  53. McKenzie Construction v. Maynard, 758 F.2d 97 (3rd Cir. 1985)
  54. Clark, "Fear and Loathing in New Orleans," 17 Suffolk Law Review 79 (1983)
  55. Amendments at the August 2001 ABA Meeting to Proposed Rule 1.5
  56. Stephanie Cahill, "New York Courts Require [Fee] Letter," ABA Journal E-Report (3/29/02)
  57. Advisory Opinion 47: Contingent Fees to Collect Past Due Alimony or Child Support (GLE140-41)
  58. Formal Advisory Opinion 87-5: Assertion of Attorneys' Retaining Liens (GLE 145-47)
  59. Formal Advisory Opinion 91-2: Advance Fee Payments (GLE 148-49)
  60. Formal Advisory Opinion 01-1: Is it ethically permissible to charge for a standard unit of time without regard to actual time expended? (GLE 152-53)
  61. Formal Advisory Opinion 03-1: May an attorney charge a non-refundable special retainer? (GLE154-56)
  62. Formal Advisory Opinion 11-1: Flat fixed fee contract for legal services (GLE 176-82)
  63. GRPC 1.15(I) Safekeeping Property - General
  64. Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)
  65. GRPC 1 .15(II) Safekeeping Property - Trust Account and IOLTA
  66. GRPC 1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records
  67. Five possible quiz questions for Class 3 (Class 3 quiz will include other questions as well)

    Friday, August 31: Deadline for emailing appeals to Class 3 quiz is 5:00 pm. Because Class 2 Quiz will not be counted for course grade, there is no need to appeal.


    CLASS FOUR
    There will be a quiz during Class Four that will review Class 1, 2 and 3 as well as test readings for Class 4.
    Review questions on GRPC 1.5, 7.1, and 7.3 will be closed book.
     The rest of the quiz will be open-book. Questions that refer to readings not reprinted in Georgia Legal Ethics will be posted on the syllabus in advance. Make sure you always bring your copy of GLE to class.
  68. What Clients Want: Conduct short interview and complete on line questionnaire by noon on Friday, August 31
  69. Nelson Mandel
    Biography
    Long Walk to Freedom
    "We open our own office"
  70. Clarence Darrow
    Biography
    The Story of My Life
  71. Constance Baker Motley, Equal Justice Under Law
  72. Suellyn Scarnecchia, "A Courageous Voice for Children"
  73. William Stringfellow
    My People is the Enemy
    "A Lawyer's Work"
    "How to be a lawyer in Harlem"
  74. The Georgia Justice Project
  75. Clark D. Cunningham, What Do Clients Want From Their Lawyers? (8 page pdf)
  76. GRPC 1.1, 1.2, 1.3 and 1.4
  77. Four possible quiz questions for Class 4 (pdf)

    (Monday): Deadline of 9am for filing appeals from Class 4 Quiz

    CLASS FIVE
    There will be a short open book quiz during Class Five that will review readings for Class 5 only.
    Four possible quiz questions for Class 5 (pdf)
    The Duty of Confidentiality and Its Exceptions: Frank Armani and the Robert Garrow Case
  78. Excerpts from Paul S. Milich,”Attorney Client Privilege,” Courtroom Handbook on Georgia Evidence 26-32 (2010)
  79. GRPC 1.6 (Confidentiality of Information)
  80. GRPC 3.3 (Duty of Candor toward the Tribunal)
  81. GRPC 1.14 (Client Under a Disability) (pdf)
  82. GRPC 1.16 (Declining or Terminating Representation)
  83. Georgia Superior Court Rule 4: Attorneys Appearance, Withdrawal and Duties (excerpts)
  84. Sample Appearance (Word document)

    While reading the Garrow Case, ask yourself what Garrow's attorney, Frank Armani, would have been permitted, required or prohibited from doing if the Georgia Rules of Professional Conduct you have read so far had been the applicable rule of professional conduct in New York at that time.
  85. Case Study I (The Garrow Case): Read through the following pages quickly as you would a mystery novel:
    pp 1-3
    pp 15-21
    p 30
    pp 38-54
    pp 61-89
    Then go back and re-read carefully pp. 20-21, 42-45, 48-50, 72-78, and 85-86. You will be expected to remember the material on these pages for both class discussion and the final exam.

    (Monday): Deadline of 9am for filing appeals from Class 5 Quiz

     Firm Code of Conduct (3-5 standards for peer evaluation) due at 10am. Graded on scale of 0-3.

    CLASS     SIX: There will be an open-book quiz in Class 6 that will cover readings assigned for both Class 5 and Class 6
    Four possible quiz questions for Class 6 (pdf)
  86. 1st Simon Exercise (all students to review carefully to prepare to play role of lawyer at initial meeting with Simon)
  87. Volume I (The Garrow Case): Read through the following pages quickly as you would a mystery novel:
    pp. 90 - 119
    p     129
    pp 133 -     155
    pp 161- 176
    Then go back and re-read carefully pp.     106-111, 113-114, 148-49, 153-54, and 165-66. You will be expected to remember the material on these pages for both class discussion and the final exam.
  88. "Slayer's 2 Lawyers Kept Secret," New York Times (06/20/74) (1 page)
  89. New York Public Health Law (excerpts) (1 page)
  90. People v Belge, 372 N.Y.S.2d 798 (Onondaga County Court 1975) (5 page pdf download)
  91. People v Belge, 376 N.Y.S.2d 771 (App. Div. 1975) (1 page)
  92. People v. Belge, 41 N.Y.2d 60 (Ct. App. 1976) (1 page)
  93. N.Y. State Bar Opinion No. 479 (1978) (5 pages)
  94. In re Ryder, 263 F.Supp. 360 (E.D. Va. 1967) (8 pages)
  95. GRPC 3.8 (Special Duties of a Prosecutor)

    (Monday):
    Deadline of 9am for filing appeals from Class     6 Quiz.
    Deadline of noon for     Confirming Video Access (should take less than 10 minutes) (password is F12) To view the videos, the computer you are using must have the QuickTime software installed. To download this software for free, click on the following link: Free Version of QuickTime

    CLASS SEVEN: No quiz in Class 7
  96. Second Simon Exercise (confidential instructions handed out during Class 6)
  97. Freedman, "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions," 64 Mich.L. Rev. 1469 (1966)
  98. ABA Model Code: DR 7-102
  99. Nix v. Whiteside, 475 U.S. 157, 106 S. Ct .988 (1986)
  100. Mohandas K. Gandhi: Biography
  101. Gandhi, "Deceived By a Client "
  102. Gandhi, "How a Client was Saved"
  103. Clarence Darrow, The Story of My Life (1932): Chapter 23 (George Bissett)
  104. Volume I (The Garrow Case): Read through the following pages quickly as you would a mystery novel:
    pp 177 - 205
    pp 211 - 215 (end of book)
    Prepare to discuss in class Armani's disclosures of information about Garrow to the police at pp. 20-21 and p. 199 with his failure to disclose at pp. 180-81. Would each of these decisions been appropriate under GRPC 1.6?
  105. History of Confidentiality Exceptions
  106. Original version of ABA Model Rule 1.6 as adopted in 1983
  107. Ethics 2000 recommendations to amend MR 1.6
  108. Summary of ABA House of Delegates Actions in 2001 on MR 1.6
  109. ABA MR 1.6 as adopted in 2002
  110. ABA MR 1.6 as amended in 2003 (current version)
  111. Comparison of 1983 and 2002 versions of ABA Model Rule 1.6
  112. Comparison of Current MR 1.6 and GRPC 1.6 (Word document) (pdf)

    NO CLASS

    NO CLASS

    Graded Writing Assignment due by 5:00 pm on Friday, October

    CLASS EIGHT
    There will be a quiz during Class Eight that will review Class 7 as well as test readings for Class 8.
    Review questions on GRPC 1.6 and 3.3 will be closed book.
    Five possible quiz questions for Class 8 (pdf)
  113. GRPC 1.7, 1.8, 1.9, 1.10
  114. Clarence Darrow and the Railroad Strike (3 pp) [Consider if GRPC 1.7 and 1.9(a) had applied, whether Darrow's handling at various points in the story of the conflict between his sympathy with the railroad strikers and his duty to his client, the railroad, would have been (a) required, (b) prohibited or (c) pemitted.]
    Motions to Disqualify
  115. Bernocchi v. Forcucci, 279 Ga. 460, 614 S.E.2d 775 (2005)
  116. Greg Land, Conflict claim sours big firm’s work with health giant (Fulton County Daily Report, August 31, 2006)
  117. McKesson Information Solutions LLC v Duane Morris LLP, Excerpt from Defendant's Memorandum in Opposition to the Emergency Motion for Injunction and Disqualification (August 21, 2006) (pdf)
  118. May 30, 2006 Engagement Letter from Duane Morris to McKesson (pdf) (read page 3 closely, skim other pages)
  119. Sullivan County v. Town of Acworth, 686 A.2d 755 (N.H. 1996) (4 pp)
    Relevance of GRPC 1.7 to Malpractice Claims
  120. In re Friedman's Inc, 385 B.R. 381(S.D. Ga. 2008) (relevance of GRPC 1.7 to malpractice claims)
  121. Excerpt from October 24, 2003 Letter from Law Firm to Friedman's Audit Committee (pdf)


    10/22/12 (Monday):
    Deadline of 9am for filing appeals from Class     8 Quiz.

    CLASS NINE No quiz in Class 9.
  122. Georgia Formal Advisory Opinion 03-2 (confidentiality between jointly represented clients)
  123. Read: Case Studies: Volume II (A) pp. 1-39 (Baby Jessica Case)
  124. Baby Jessica: Exercise One - Instructions
  125. GRPC 4.1, 4.2, 4.3
  126. FAO 86-4 (GLE 142)
  127. FAO 94-3 (GLE 150)

    CLASS TEN
    There will be an open-book quiz in Class 10 that will cover readings assigned for both Class 9 and Class 10
    Three possible quiz questions for Class 10 (pdf)    ; there may be additional questions covering Class 10 readings
  128. GRPC 3.6, 3.7
  129. Read Case Studies: Volume II (A) 40 - 82 (Baby Jessica Case)
  130. Read GRPC 2.1
  131. 28 U.S.C. 2101(f) (stay pending application for writ of certiorari)
  132. "Stay Pending Review by U.S. Supreme Court," Am. Jur. 446
  133. DeBoer v Schmidt, 509 U.S. 1301 (1993) (Stevens, J.) (denial of stay application)
  134. Steven Keeva, "A Client's Perspective," ABA Journal 76 (Jan. 2005) (pdf file)
  135. Read Case Studies: Volume II (B) pp. 1-11, 23-29, 33, 40-50 (James Meredith Case) [pp 12-21, 31-32, and 34-39 are optional ]
  136. Updates on the James Meredith Case
  137. Constance Baker Motley, Civil Rights Trailblazer, Dies at 84 (New York Times, Sep 29, 2005)
  138. Baby Jessica: Exercise Two -- Instructions

    Monday, November 5 by Noon (grade penalty for late submission)
    Peer Review Form for 5 Member Firms
    Peer Review Form for 4 Member Firms
    Firm Conduct Rules

    CLASS ELEVEN     Open Book Quiz
    Four possible quiz questions
    Baby Jessica Exercise Two (originally assigned for Class 10).
  139. Read ABA Model Rule 1.7
  140. Comparison of Current ABA MR 1.7 and GRPC 1.7
  141. Review GRPC 1.9, 1.10 (originally assigned for Class 8)
  142. Introduction to Nissan Motor v Orozco
  143. Nissan Motor Corp. v. Orozco, 595 So.2d 240 (Fla.App.1992)
  144. Read GRPC 1.11 and 1.12
  145. ABA House OKs Lateral Lawyer Ethics Rule Change(ABA Journal Weekly Newsletter Feb 16, 2009)
  146. Read ABA Model Rule 1.10
    (a) Comparison of Current ABA MR 1.10 and GRPC 1.10 (pdf)
  147. FAO 05-7 (GLE 166-67)
  148. FAO 05-11 (GLE 168-72)

    (Monday):
    Deadline of 9am for filing appeals from Class     11 Quiz

    CLASS TWELVE (Last Class)
    Course evaluation: you are encouraged to bring laptops to class
    Three possible quiz questions
  149. Class Counsel Loses $7,000,000 in Attorney Fees Due to Conflict of Interest
  150. Jesse v Danforth, 485 N.W.2d 63 ( Wis. 1992)
  151. Willner's Fuel Distributors, Inc.v. Norveen, 882 P.2d 399 ( Alaska 1994)
  152. Jonathan D. Glater & John Schwartz, Enron's Many Strands: The Deliberations, New York Times ( 6/17/02 )
  153. John Schwartz & Kurt Eichenwald, Enron's Many Strands: The Lawyer, New York Times (6/17/02)
  154. James Podgers, "Lawyers as Fraud Fighters: Proposed Rules on Reporting Financial Wrongdoing Go to House of Delegates," ABA e-Report ( 8/8/03 )
  155. GRPC 1.13 (Organization as Client)
  156. Taylor , "Ethics and the Law: A Case History," NY Times Magazine ( 1/9/83 ) (OPM Case)
  157. lnstructions for OPM exercise (in-class role play)

    (Monday):
    Deadline of 9am for filing appeals from Class     12 Quiz