Professional Responsibility Syllabus - 2015

Professional Responsibility Syllabus  
Spring 2015                updated April 23, 2015

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

Office: Room 8-122 
Phone: 212-636-7446
Cell: 201-264-1177

Mondays and Wednesdays 12:30 - 1:50, Room 3-01

Required materials:
Casebook: Professional Responsibility,  A Contemporary Approach
Pearce, Capra, Green 
(West – Second Edition)
Interactive casebook: (purchasers of hard copy also receive access to the interactive version)

Supplement: Rules, Standards, Statutes, and Codes: The Law Governing Lawyers, (LGL) Martyn, Fox, Wendel (Wolters Kluwer 2014-205 Edition)


(syllabus, links to resources, etc.)


Four or more students will be assigned to be "on call" for classroom discussions.
Attendance is required.  If you cannot attend class you must send me an email explaining the reason prior to class.
Classroom participation: particularly helpful participation in classroom discussions may support an increase of 1/3 grade (e.g. B+>A-)
Final exam:in-class multiple choice type exam
May 7, 2015, 9:30 AM

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.  

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.

Upperclass writing requirement: 
Notice of intent must be filed with Registrar within two weeks of start of semester (January 26) Topic must be approved by me in advance of filing.

March 2, 5:00 PM - outlines due
March 23, 5:00 PM - rough drafts due
April 24, 5:00 PM - final papers due

Term papers

Term paper topic proposals due:  March 2, 5:00 PM
Outline  or abstract due: March 23, 5:00 PM
Final paper due: April 24

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 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, and any additional questions I may add to the syllabus or otherwise.


Unit 1 Introduction
Week 1, class 1
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: Antonin Scalia at Duquesne Law School Centennial 2011
`My Catholicism is irrelevant to my  understanding of the law's requirements. '
“If I thought that the Catholic doctrine held the death penalty to be immoral, I would resign.” Should Antonin Scalia resign?  

Unit 2 Basics
Class 1
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

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 ?  

Chapter 2- Basic elements of Law Practice 
–  Creating and terminating the attorney-client relationship
The Duties of Competence, Communication, Allocating Decision-making, Civil Liability
Read casebook: 82 - 121
Termination: Restatement LGL 31; MRPC 1.16
Competence: MRPC 1.1, 1.3
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

Ch. 2 Competence in criminal defense and removal of aliens
discussion slides
Gideon's Army - (video - NY Times) Public Defenders struggle to answer the call
Casebook pages: 122-130
Search "public defenders" on Otherwise - read posts
Effective assistance of counsel (Justia)
6th Amendment - Constitution of the United States of America
McMann v. Richardson 397 U.S. 759 (U.S. 1970) 
Padilla v. Kentucky (2010) - collateral consequences
Jed Rakoff - Why Innocent People Plead Guilty (NY Review)
Curb False Guilty Pleas - NJ Law Journal Editorial Board

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

Read: casebook p. 183-246

Fees and billing
Read casebook p. 246-311
Discussion slides- fees & billing NCAA seeks deep cuts in O'Bannon fees - Otherwise
Kill the billable hour quota? Sigrid Irias
The flat fee trap? Norman Pattis

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

March 23
Conflicts, part 2
Aggregate settlements pp. 451-452 - gwc
pp. 453-498
Conflicts between clients and Lawyers personal or financial interests, former clients, Vicarious disqualification
Background on aggregate settlements:

Mass torts and the problem of consent to settlement
Erichson & Zipursky: Consent v. Closure96 Cornell L. Rev. 265 (2011)
Discussion slides - conflicts of interest, part 2
March 25  - conclude civil conflict
Criminal conflicts
Casebook pp.502-517

Chapter 4  Attorney client privilege and the Lawyer's Duty of Confidentiality
April 8 
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
class 1: casebook p.313-355 (basics of the privilege)
Discussion slides
Practice guide: Upjohn warnings

Monday April 13 p. 356-376 (waiver and the crime-fraud exception)
pp. 376- 405 (confidentiality)

Wednesday April 15
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
Wednesday April 15, Thursday, April 16
Chapter 7 Special Ethical Rules: Prosecutors and Judges
Read: casebook, pp. 653-703
pp. 703- 74 (two classes)
Discussion slides

 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

Monday, April 20 and Wednesday, April 22
casebook pp. 746-794
An independent judiciary? How should we select judges? (Election or appointment)
Judicial ethics – Code of Conduct of U.S. Judges

The New Politics of Judicial Elections (Brennan Center)
Should a judge recuse when a litigant has financially supported his election?  Capertonv. A.T. Massey (2008)

Does the 1st Amendment protect judges' fund-raising appeals? Yulee v. Florida Bar (awaiting decision)
John Oliver on the Yulee case

The Iowa same sex marriage case and judicial retention elections

2010 - Three Iowa Justices turned out of office

Thursday, April 23

When should judges recuse? 

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

Exam:In class - multiple choice _ May 7, 9:30 AM