Professional Responsibility Syllabus - 2016

Professional Responsibility Syllabus  
Spring 2016                updated April 21, 2016

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  3-03

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 2015-2016 Edition)
ISBN 978-1-4548-5911-6


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


Six or more students will be assigned to be "on call" for classroom discussions each week.

Attendance is required.  If you cannot attend class you must send me an email explaining the reason prior to class.

Classroom Participation Is Required and constitutes a substantial part of  your grade.  That principally means being well prepared on the nights when you are "on call".

Accountability (in addition to classroom participation and good and regular attendance):
Three options (choose one)
Final exam: in-class multiple choice type exam
Term Pape
UCWR paper 

Upper Class Writing requirement
If you use the class to satisfy the writing requirement you need not take the final exam - but classroom participation will still be considered in your grade.  The paper itself is graded on a pass/fail basis - i.e. the requirement is "satisfied" or not. (7,500 words +/-)

Term paper: if you have elected to write a 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. (5,000 words +/-)

Requirements and format of UCWR and Term papers


Upper Class Writing Requirement

Notice of intent must be filed with Registrar by Friday, January 29  HERE is the form 

Topics must be approved by me in advance of filing.

January 29 - send pdf or screen print of UCWR registration form to Professor Conk 
March 1, 5:00 PM - outlines due
March 28, 5:00 PM - rough drafts due
April 29, 5:00 PM - final papers due last day of class
May 18 - last possible extended due date for UCWR

Term papers

Term paper topic proposals due:  March 1, 5:00 PM
Outline  or abstract due: March 28, 5:00 PM
Final paper due: April 29, 5:00 PM (no extensions for graduating students)
May 18 - last possible extended due date (for non-graduating students)

Principal reading will be from the casebook, supplemented by the relevant Rules and Comments in the Supplement.  Page assignments have not yet been selected.
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 sample 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 those materials.

Discussion leaders - when assigned - are "on call".  You should be prepared to discuss each of the multiple choice questions in the case book, contained in the discussion slides posted on the syllabus page, and any additional questions I may add to the syllabus or otherwise.

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)

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

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

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

Read: black letter rules of ABA Model Rules of Professional Conduct
Read: The Derrick Hamilton Case
1991 Brooklyn Murder Conviction to be cleared
Convicted man was his own best advocate

Read blog post and links including Call to Resistance and order of Alabama C.J. Moore.
Scalia, et al inspire Alabama C.J.'s Order to refuse to issue same sex marriage licenses

What does it mean to be a lawyer? Why do you want to be a lawyer?
What are the most important things you took from your first reading of the RPC's? Why do we obey laws?  When must we obey?
Do you support the Call to Resistance? Is the Order of Chief Justice Moore lawful?

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.

Read: Chapter 2, pages 27 - 77
NOLO  Legalzoom
Key cases: Florida Bar v. Brumbaugh, Birbrower v. Montalbano et al., [Cal. Civil Code 1282.4]; Morris v. Margulis & Grant; Tennessee Ethics Opinion; Nathanson v.MCAD
Draft a will at

Are Florida's restrictions on non-lawyer assistance too harsh? Do state restrictions on out of state lawyers improperly regulate interstate commerce and the client's right to the counsel it chooses?

How should the trial judge decide the Tennessee case?
Is the judge obligated to enforce the legal right to abortion if, like Justice Scalia, he adheres to Catholic doctrine which forbids abortion and provides for automatic excommunication of one who aids or abets an abortion ?  

Week 2

Chapter 2- Basic elements of Law Practice 
–  Terminating the attorney-client relationship
The Duties of Competence, Communication, Allocating Decision-making, Civil Liability
Read casebook: 82 - 106
Termination: Restatement LGL 31; MRPC 1.16
Competence: MRPC 1.1, 1.3

Malpractice Liability 
Read: casebook 103-121
Discussion slides: Malpractice Liability
Malpractice: Restatement LGL 48, 51, 52; MRPC 1.1, 1.2, 1.3, 1.4, 1.8
NJ Model Civil Jury Charge: Attorney Negligence 5.51A, 5.51B
Application- Lawyers Professional Liability
Specimen policy of insurance

Week 3

Ch. 2 Competence in criminal defense 
discussion slides
Gideon's Army - (video - NY Times) Public Defenders struggle to answer the call
Ted Cruz Confronts Dreamer in Iowa - RedState
Casebook pages: 122-130

Effective assistance of counsel (Justia)
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 

Should there be public defenders for deportees?
Padilla v. Kentucky (2010) - collateral consequences
City Bar Association: NYC know your rights project report

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?

Week 4
Ch. 2 - Allocating Decision-Making Between Lawyers and Client
Discussion slides - Allocating Decision-Making
Read: Casebook p. 142-181
IMO Howard Shipley - order to show cause whey he should not be disciplined (SCOTUS)
Lyle Denniston, The Howard Shipley case: A lesson for others, SCOTUSblog (Mar. 24, 2015)

Week 5

Chapter 3 The Business, Technology, and marketing of Legal Services
 Finding clients (advertising, solicitation)
Discussion slides - advertising

Read: casebook p. 183-246
Read: NY City Bar Association Formal Opinion 2015-7 - Application of Attorney Advertising Rules to LinkedIn
When the judge praises you Dwyer v. Cappell
New York RPC's on advertising
 Joe Borenstein - Maine Lawyers for Maine People

Week 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
Kill the billable hour quota? Sigrid Irias
The flat fee trap? Norman Pattis

Week 7

Chapter 5 Conflicts of Interest
Concurrent conflicts (when our clients are in conflict)
Volunteer Lawyers for Justice - NJ Supreme Court (2014)
Screening conflicts - infographic
Uniform Collaborative Law Act
NJ Collaborative Practice Groups

Aggregate settlements and Conflicts in Criminal cases

Read: Aggregate settlements pp. 451-452  

In Re DePuy Pinnacle Hip Implants Product Liability Litigation
Order Consolidating Bellwether Cases for Trial
DePuy ASR Settlement Program

Multi-District Litigation 28 USC 1407
Federal Rules of Civil Procedure R. 23 Class Actions 

Hellerstein: Managerial Judging: The 9/11Responders' Tort Litigation 

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

Week 10

Chapter 4  Attorney client privilege and the Lawyer's Duty of Confidentiality
April 12


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

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

Week 11

April 19 

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
Confidentiality under R. 1.6 and the Duty of Corporate Counsel Under Sarbanes Oxley
Casebook pp. 602-622
Discussion Slides

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
April 26  - Week 12

Chapter 7 Special Ethical Rules: Prosecutors and Judges
Read: casebook, pp. 653-703
pp. 703- 74 (two classes)
Discussion slides

 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

Should local prosecutors bow out of police shooting cases?
Monroe Freedman, et al on Ferguson - Legal Ethics Forum

Marty Stroud, III
Stroud meets Glenn Ford - apologizes VIDEO

 Week 13   Makeup Class: Wednesday -April 27  - 400:-6:20 Rm. 3-01
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