Professional Responsibility Syllabus - 2017

Professional Responsibility Syllabus  
Spring 2017             updated April 25, 2017

Monday, May 8, 2017
5:30 PM
Room 4-01
3 hours
MPRE style 
partial open book

 Learning outcomes and objectives - 2017

George W. Conk, Adjunct Professor & Senior Fellow, Stein Center for Law & Ethics, Fordham Law School  

Office: Room 8-122 
Phone: 212-636-7446

Tuesdays   6:00 PM - 8:50 PM  |  Room  3-04

Required materials:
Professional Responsibility,  A Contemporary Approach
Pearce, Capra, Green 
(West – Second Edition)
Interactive casebook: (purchasers of hard copy also receive access to the interactive eBook version; SEE keycode on inside front cover)
ISBN  978-0-314-28781-6

The Law Governing Lawyers (LGL) Model Rules, Standards, Statutes, and State Rules of Professional Conduct
Martyn, Fox, Wendel (Wolters Kluwer 2016-2017 Edition)
ISBN: 978-1-4548-7537-6. 
Any complete current version of the Model Rules and comments will suffice.  I like Martyn, Fox because they include substantial excerpts from the 3rd Restatement - the Law Governing Lawyers, and selected federal statutes and rules.


(syllabus and policies, links to resources, etc.)


Ten (+/-)  students will be assigned to be "on call" for classroom discussions each week.

Attendance is required.  I must certify good and regular attendance to submit a passing grade.  If you are unable to attend class you must drop me a note with brief explanation before class.

 Classroom Participation Is Required and constitutes a significant part of  your grade.  That principally means being well prepared on the nights when you are "on call".  Therefore there is no anonymous grading in this class.

On call Groups - 2017  Be prepared to discuss the questions assigned, relying on the RPCs, comments, and cases that apply to the topic of the question

Office hours by appointment on the hour and half hour.  Please make appointments by email.

Deadlines: if you elect the term paper option deadlines must be respected and extensions must be requested in advance. 

Term Paper or exam option
 (in addition to classroom participation and good and regular attendance):
Two options (choose one)
Final exam: in-class multiple choice type exam

Term paper: if you have elected to write a 15 page term paper the topic must be submitted to me for approval.  You need not take the final exam - but classroom participation will still be considered in your grade. 

Term paper due dates
Term paper topic proposals due:  Tuesday, February 28, 5:00 PM
Rough draft due : March 31, 5:00 PM
Final paper due: April 28, 5:00 PM (no extensions for graduating students)
May 17 - last possible extended due date (for non-graduating students)

Any request for extension of any deadline must be made via email to me at least 48 hours before the deadline.

 Requirements and format of  Term papers

Stylistic tips and principles: Rhetoric: Aristotle, RBG, and the art of persuasion

And, of course, the classic: Strunk & White Elements of Style

Principal reading will be from the casebook, supplemented by the relevant Rules and Comments in the Supplement.  Page assignments are approximate.

The basic approach should be to read the excerpted cases in the casebook, then read the sample questions.  Much of our discussion will center on the  problems presented in the MPRE-style multiple choice questions in the casebook.

I will make additional assignments of cases and articles beyond the casebook .  As you can see below there are hyperlinks to such materials.

Discussion leaders - when assigned - are "on call".  You should be prepared to discuss each of the multiple choice questions in the case book, and the cases excerpted in the casebook.  Discussion questions are often contained in the discussion slides posted on the syllabus page.  But the main objective is to discuss the Rules, their meaning, purposes and implementation.  The discussion therefore will often be free flowing.

Please be sure to bring the Law Governing Lawyers and the casebook to each class when you are on call.  I strongly recommend bringing both to each class.  Of course you may use the eBook. 

Syllabus (Note: this evolves as the semester progresses)

Unit 1 - Introduction - What Does it Mean to Be a Lawyer? 

Themes : What inspires and guides legal ethics?  Role of  the RPC's; the business vs. profession debate; personal morality and ideology.

Discussion slides - Chapter 1 Introducing Professional Responsibility and Legal Ethics
Chapter 1 - pages 1-25

Read: black letter Model RPC's  and comments
Model Rules 

RPC 3.8 Special rules governing Prosecutors (Rule & comments)

Client lawyer relationship
MRPC 1.0-1.4 (Rules and Comments)
Competence, scope of representation, diligence, communication

MRPC 1.6, 1.7, 1.8, 1.9 (Rules & comments)
Confidentiality, Conflicts of interest (current and former clients), Duties to former clients 
Responding to subpoenaes for client information - ABA Opinion 473
Preserving Confidentiality when moving to be relieved as counsel ABA Opinion 476

MRPC 1.10, 1.11, 1.13, 1.14,  1.16 (Rules & comments)
Imputation of conflicts, Special conflicts - former and current government employees

MRPC 1.15-1.18 (Rules & comments)

Safekeeping property, Declining or terminating representation, sale of law practice, duties to prospective clients

Unit 2
Ch. 2 Basic Elements of Law Practice
Read: Chapter 2, pages 27 - 91  EVERYONE

Discussion slides - Basic elements of Law Practice- part 1
-Defining the practice of law – unauthorized practice, creating the lawyer-client relationship.

Defining the practice of law, Non-lawyer legal advisers and legal software
pp. 27-41  Q. 2-1 - 2-3)  [Group 7]

Opinion 53 - Medicaid advisers - NJ Committee on the Unauthorized practice of law, May 2016

 Legalzoom - take a look at their websites
Draft a will at

[Cal. Civil Code 1282.4]  - the arbitration exception

Lawyers working with non-lawyers (pp. 41-60, Q. 2-4 to 2-14) [Group 8]

Creating  the lawyer-client relationship (pp. 61-81, Q. 2-15- 2-20) [Group 9]

 Chapter 2- Basic elements of Law Practice  continued

Terminating the attorney-client relationship
Unit 2
Ch. 2 Basic Elements of Law Practice

Discussion slides - Basic elements of Law Practice- part 1
-Defining the practice of law – unauthorized practice, creating the lawyer-client relationship.

Chapter 2, pages 27 - 91 (Q. 2-1 to 2-3)

Defining the practice of law, Non-lawyer legal advisers and legal software
pp. 27-41  Q. 2-1 - 2-3)  [Group 7]

Opinion 53 - Medicaid advisers - NJ Committee on the Unauthorized practice of law, May 2016

 Legalzoom - take a look at their websites
Draft a will at

[Cal. Civil Code 1282.4]  - the arbitration exception

Lawyers working with non-lawyers (pp. 41-60, Q. 2-4 to 2-14) [Group 8]

 Creating  the lawyer-client relationship (pp. 61-81, Q. 2-15- 2-20) [Group 9]

Q. 2-21 – 24 (pages 82-91) [Group 10]


Q. 2-26 – 2-31 pp. 92-103 [Group 11]
Read: casebook 103-121

Q.   2-32-2-37   Group 12]
Stephanie Cassimon
Timothy Carter
Anita Carroll
Kelly Carr

   Malpractice Liability 
What is Malpractice?
 Is there any significant difference among NY, NJ, and the Restatement?

Restatement LGL 48, 49, 5051, 5253
Discussants/presenters: Stephanie Cassimon and Timothy Carter

NY Pattern Jury Instruction 2-152
NJ Model Civil Jury Charge: Attorney Negligence 5.51A, 5.51B
 RPC 1.1, 1.2, 1.3, 1.4, 1.8
Discussants/presenters: Anita Carroll, Kelly Carr

Lecture: Lawyers Malpractice Insurance
Application- Lawyers Professional Liability

Unit 3 - Ineffective Assistance of Counsel

Ch. 2 Competence in criminal defense 

Video: Gideon's Army - (excerpt - NY Times) Public Defenders struggle to answer the call

Casebook pages: 122-130 (Rompilla v. Beard majority - excerpted)
Rompilla v. Beard 545 U.S. 374 - concurrence and dissent  

Discussants/presenters – [Group 6]
Rompilla Majority: Leah Pall, Samantha Padilla

Rompilla dissent and concurrence
 Przemyslaw Pawlikowski, Meredith Munro

Discussant/presenters: Jessica Carnevale, Taylor Armstrong

Discussant/presenters: Colette Carman and Deborah Bessner

6th Amendment - Constitution of the United States of America
McMann v. Richardson, 397 U.S. 759 (U.S. 1970) 
Strickland v. Washington, 466 U.S. 668(1984)
Search "public defenders" on Otherwise - read posts 
Padilla v. Kentucky (2010) – duty to inform defendant of potential immigration consequences

Jed Rakoff - Why Innocent People Plead Guilty (NY Review)
Curb False Guilty Pleas - NJ Law Journal Editorial Board
Is our criminal justice system fair?  What if anything does the reported funding crisis of public defenders have to do with that?

Unit 4
Ch. 2 - Allocating Decision-Making Between Lawyers and Client
Discussion slides - Allocating Decision-Making
ReadCasebook p. 142-181
Q. 2-38, 2- 39, 2-40, 2-41 
On call: Zachary Elkwood, Matthew Doyle

Following the clients directions:
2-42 Gilmore v. Utah (p. 156) and State v. Martini (NJ 1996)
Presenters discussants: Stan Yakoff (Gilmore)
Catherine Tremble (Martini)

The duty of communication with clients and allocation of authority: 

I/M/O Howard Shipley Presenter:   Natasa Sivesk
The offending brief in Schindler v. Lee
March 123, 2015- order to show cause why Howard Shipley should not be disciplined (SCOTUS)
IMO Foley Partner Files Response SCOTUS OSC

Lyle Denniston, The Howard Shipley case: A lesson for others, SCOTUSblog (Mar. 24, 2015)
Supreme Court Rules regarding Petitions for Certiorari 14.3 

Communication with clients   NY RPC 1.4 Annotated 
Presenters: Ace Pawlikowski, Ryan Surujinath

Unit 5

Chapter 3 The Business, Technology, and marketing of Legal Services
 Finding clients (advertising, solicitation)
Read: casebook p. 183-246
Discussion slides - advertising

Q.3-1, 3-2, 3-3 and Zang v. Whitmer
Presenters: Colette Carman, Deborah Bessner

Regulating Lawyer's Commercial Speech
New York RPC 7.1 and 7.2 on advertising     How do the NY Rules differ from ABA Model Rules?
Presenters: Benjamin Shanus and Samuel Scott

NY Restrictions on Advertising - Constitutional challenge
Alexander v. Cahill (2d Circuit 598 F 3d 79  2010) and
Q. 3-09
Presenters: Anita Carroll, Kelly Carr


NY City Bar Association Formal Opinion 2015-7 - Application of Attorney Advertising Rules to LinkedIn
Presenters: Gregory Dong and Stephanie Cassimon

Is a proper lawyer referral or advertising  service?  Can it be fixed?  What if lawyers owned it?
How AVVO works

Opinion 2016-3 Supreme Court of Ohio - Board  of Professional Conduct

Background: Pennsylvania Bar Association Opinion 2016-200

Presenters on Avvo: Tim Carter and  Jessica Carnevale
Endorsements by Judges

When the judge praises you - Dwyer v. Cappell 
What does the 3rd Circuit permit? Bar?
Does the NJ Supreme Court's final Guideline practically prohibit truthful advertising?  Should such advertising be barred?
Presenters:  Elina Strakhman and Zachary Schreiber

Misleading advertising?
 Joe Borenstein - Maine Lawyers for Maine People
Does Joe 's ad comply with NY RPCs?

Presenters on issues of misleading advertising (slides 50-65)
Matthew Doyle, Taylor Armstrong, Fidan Karimli

Unit 6
Fees and billing

Read: casebook p. 246-311
Discussion slides- fees & billing

NCAA seeks deep cuts in O'Bannon fees - Otherwise
Magistrate Order approving fees - July 13, 2015
Presenters of NCAA v. O'Bannon: Samantha Padilla, Leah Pall
What is the NCAA"s theory?  The Magistrate's ruling?
What is the lodestar?  How is it applied by the magistrate?

Introduction to Contingent fee practice - GWC

The flat fee trap? Norman Pattis
Presenters: Stan Yakoff  

Does hourly billing present a conflict of interest between lawyer and client?
Does contingent fee billing?
What about fixed-fee transactional billing?
Is contingent fee billing or contingent fee billing more efficient? Does it serve the client better than hourly or transactional billing?

Aggregate litigation: class actions and multi-district litigation
discussion slides 

Multi-District Litigation 28 USC 1407

Federal Rules of Civil Procedure R. 23 Class Actions 

Florin v. Nationsbank60 F.3d 1245 (7 Cir. 1995)
Presenters: Natasa Siveski and Kamaljit Singh

Arrogating authority to control mass tort litigation?  
Overview of World Trade Center MDL Settlement

What tensions are presented in mass tort settlements?
Mass settlement and client autonomy - Linda Mullenix
Presenters: John Robertson and Amira Privott Yeiser

How did judge Hellerstein manage the WTC disaster cleanup tort claims?
Managerial Judging - Hellerstein, Henderson & Twerski

In the personal injury cases arising from the World Trade Center cleanup Was Judge Hellerstein's exercise of such authority justified ?

Presenters: Johnny Santa Cruz, Emily Safco

What did Judge Weinstein do regarding fees in the Zyprexa MDL? (see majority and concurring opinion)

Presenters: Ace Pawlikoski and Danielle Sayegh


Unit 7

Chapter 5 Conflicts of Interest
 Chapter 5 Conflicts of Interest

Is there a current Attorney-Client Relationship?
Rohm & Haas v. Dow and Murray v. Metropolitan Life
Casebook  p. 410, -414 See discussion questions on slides.
Presenters: Chris Lisiewski, Daphny Lazarus

Direct Adversity and Materially Limited under R. 1.7
casebook p. 414 to 420 (Q.'s 5-1 to 5-6 and ABA Manual on Professional Conduct - Residential Home Loans
Presenters: Gokul Krish and Nadia Kashem

Permissible conflicted representation
"reasonably believes and competent and diligent representation"
casebook p 421 - 434  Q, 5-7-5-10, Sanford v. Commonwealth and ABA Opinion 05-434

Presenters: Fidan Karimli, Kali Jelen, Sarah Holm

Waiving future conflicts, Multiple representation 
Q 5-11, p. 434-443
(Carnegie v. Summit, Ware v. Ware)
Presenters: Meghan Holleran, Matthew Hampsten

Concurrent conflicts (when our clients are in conflict)
What was the reasoning of the ACPE?  Why did the Supreme Court overturn the ACPE?
Presenters: Hansley Mohan, Deanna Minasi

Civilian Complaint Review Board - Richard Emery - Disqualifying Conflicts of Interest? (blogpost March 4, 2016 has discussion questions and resources.)
Screening conflicts - infographic
Presenters: Samantha Padilla, Meredith Munro, Mark Monaco

Richard Emery was Chairman of the Civilian Complaint Review Board.  He has a say in policy decisions about the Board's mandate but was not a lawyer for the Board.
Prosecution is by a unit within the CCRB before an administrative law judge.  The Police Commissioner makes all decisions.
Do you agree that Emery had a conflict of interest?  What are the interests at stake?  What do you think he should have done?

His firm represented a victim after the administrative judge had found misconduct.  The Conflicts of Interest Board found screening to be sufficient to preserve the integrity of the Board.  Do you agree?

RPC 1.7 and Marital Issues 
Ware v. Ware, casebook p. 439
Is collaborative law a good solution to the problem of conflicts of interest in matrimonial law?
Should it be the norm - from which parties can withdraw only with court permission?

Presenters: Willyne Michel, Vincent Margiotta, Ja
Conflicts - Chapter 5 - Part 2 & 3
- Conflicts Between Clients Interests and Personal or Financial Interests of the Lawyer, etc.

Read: Casebook p. 453-502

Conflicts in Criminal cases p. 502-532

 Conflicts - Chapter 5 - Part 2 & 3
- Conflicts Between Clients Interests and Personal or Financial Interests of the Lawyer, etc.

Read: Casebook p. 453-502

Conflicts in Criminal cases p. 502-532
Discussion slides - conflicts of interest, part 2
Discussion slides - Conflicts of Interest in criminal cases

Unit 9

Chapter 4  Attorney client privilege and the Lawyer's Duty of Confidentiality

class 1: casebook p.313-355 (basics of the privilege)
Discussion slides - privilege and confidentiality

Presenters (Federal Rules, Upjohn and Upjohn Warnings below):  Kali Jelen, Sarah Holm, Gregory Dong

FR Evid 501 Privilege
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
FR Evid 502
FRCvP 26

Upjohn v. U.S. 449 U.S. 383 (1981) 

Practice guide: Upjohn warnings

Unit 10

Casebook   p. 356-376 (waiver and the crime-fraud exception)
pp. 376- 405 (confidentiality)
Discussion slides (beginning at # 47)

Chapter 6 
Obedience to the Law
Presenters on Sarbanes Oxley and lawyers as whistle blowers:  Douglas Gretz, Kevin Greenawalt, Zachary Elkwood, and Matthew Doyle
Confidentiality under R. 1.6 and the Duty of Corporate Counsel Under Sarbanes Oxley
Casebook pp. 602-622
Discussion Slides - Sarbanes Oxley

Final Rule - SEC - 17 CFR 205.1 et seq. Implementation of Standards of Professional Conduct for Attorneys Securities and Exchange Commission
The duty: Issuer as client 17 CFR 205.3
Appearing before the commission: 17 CFR 205.2


Unit 11

Chapter 7 Special Ethical Rules: Prosecutors and Judges
Discussion slides

RPC 3.8 Special Ethical Rules: Prosecutors

Presenter: Rachell Polsky: What makes Prosecutors different from other lawyers?

Did attorney Stroud do anything wrong?  Did he violate RPC 3.8?
Marty Stroud, III
Stroud meets Glenn Ford - apologizeVIDEO
Presenter: Joanna Gilberti

Read: casebook, Prosecutorial Discretion and Selective Prosecution
: pp. 653-686
The Decision to Charge
Factors Bearing on Prosecutors Discretion to Charge
Selective Prosecution
Presenters:  Tim Carter, Anita Carroll, Kelly Carr, Jessica Carnevale

Should local prosecutors bow out of police shooting cases?

Who should investigate and prosecute police shooting cases?

Monroe Freedman, et al on Ferguson - Legal Ethics Forum

Judges should oversee Grand juries NY Court of Appeals Chief Judge Jonathan Lippman
A special prosecutor should be appointed: Andrew Cuomo
Presenters: Colette Carman, Deborah Bessner, Taylor Armstrong

 Background:   Disclosure of all favorable evidence - Bruce Green

Brooklyn D.A. - Conviction Review Unit
D.A. Kenneth Thompson  Address to NY City Bar Association on Wrongful Convictions

Read: casebook pp. 746-794
An independent judiciary? How should we select judges? (Election or appointment)

When should judges recuse? Should a judge recuse when a litigant has financially supported his election? Have the dissent's warnings been realized? (view on Westlaw) 

 Capertonv. A.T. Massey, 556 U.S. 868 (2008)

The New Politics of Judicial Elections (Brennan Center)

What limits should be placed on judicial campaigning?
Wersal v. Sexton, 674_F.3d_1010, 8th Cir.2012

Does the 1st Amendment protect judges' fund-raising appeals?
 Yulee v. Florida Bar  135 S.Ct. 1656 (2015)
John Oliver on the Yulee case

What's the matter with Kansas? 
Bill threatens to defund judiciary -Brennan Center

Impeach judges? 

Kansas Supreme Court Stands Up to Legislature - blogpost and opinion

The Iowa same sex marriage case and judicial retention elections

Should the U.S. Supreme Court be subject to to the Code of Conduct for United States Judges?

HR 862 (2011)
Yes: Alliance for Justice
Maybe: Wheeler/Brookings Institute