(LLM STUDENTS ONLY)
Fall 2020
212-636-7446
gconk@fordham.edu
Room 8-120
Thursdays 6:00- 7:50
Beginning August 27, 2020
Room 1-01
Required casebook and Rules and standards supplement:
Jefferson, Pearce, Green, et al. Professional
Responsibility - A Contemporary Approach
Fourth edition(purchase gives you access to online edition)
ISBN 978-1-64242 -285-6
This is a new edition: old editions are not usable for this class.
RECOMMENDED:
The Law Governing Lawyers -
Model Rules, Standards, Statutes, and State
Lawyer Rules of Professional Conduct
Susan D. Martyn, et al
Learning outcomes are at the beginning of each chapter of the
casebook.
Meeting with me: I am available to meet with students. I make
appointments on the hour and half- hour.
Please suggest a time via email. Wednesday afternoons will generally be most convenient for me. ZOOM may be our best option.
For our discussions and to answer the live questions posted in class you need to use the relevant
ABA Model Rules of Professional Conduct and official Comments
The relevant authorities are listed in the Topic Outline at the
beginning of each Chapter of the casebook.
Although all classes will be recorded and available on Echo360 Attendance is required in order to satisfy the ABA regulations. If you cannot attend a class send me an email
with brief explanation before the class.
If classes are moved online you must attend class "live", not simply view the video later.
Classroom participation is welcome and required:
We will use the PollEverywhere software to give each of you the opportunity to answer the MPRE-type questions in the assigned casebook reading; and to answer questions I draft for purposes of our discussions in class. Therefore
For registration instructions go to
My email address is gconk@fordham.edu At login you will find that the presenter is georgewconk331.
Note that hypertext links are in blue.
Week 1
Introduction to the Law Governing Lawyers and the Rules of Professional Conduct (RPCs)
For background purposes: Please read the New York Rules of Professional Conduct OR the American Bar Association Model Rules of Professional Conduct which can be found HERE) (Rules only, NOT the Official Comments)
[Ultimately as part of MPRE preparation you will need to read the ABA Rules and explanatory comments. ]
The Rules of Professional Conduct, the structure of the law governing lawyers, the U.S. legal profession, New York practice, and the role of lawyers in society.
Casebook: Jefferson, Pearce, et al. Professional Resonsibility, A Contemporary Approach
4th Edition
Land of the Free - The Killers (video)
Read Chapter 1, pages 1-19
Be prepared to discuss Questions 1-1 to 1-15.
Go to polleverywhere.com and download the app to your laptop, phone, tablet or other device.
My PollEverywhere presenter id is:
Be prepared to discuss this question:
The Killing of George Floyd
In May 2020, the police killing of George Floyd in Minneapolis ignited an impassioned national debate regarding the persistence of systemic racism in the administration of justice. In Maintaining Professionalism in the Age of Black Death Is . . . A Lot, Shenequa Golding describes her anguish as a black professional. She questions the assumption of “bleaching out” which is an element of both the neutral partisan role and the common understanding of professionalism. The police killing of George Floyd raises additional questions.
African American professionals are highly alert to the existence of injustices in the U.S. criminal justice system which incarcerates minorities at a high rate; and police who often see a suspect or threat in each Black or Latin face. But like others you are expected to put aside your feelings and focus on the task at hand - the client's or employers needs. But you went to law school with the idea of being a fighter for justice. Can you be both a fighter for justice and - a "neutral partisan" - who puts aside their own views and emotions, and focuses on the needs of your clients, of your employers?
Is the existence of equal justice under law a prerequisite for the role morality of the neutral partisan, or for traditional professionalism’s notion of the lawyer committed to the public good?
Or is equal justice only an unrealized aspiration? And does this aspiration derive from traditional professionalism, the neutral partisan role, or both?
Another Issue `Civil Gideon'
Is there a societal obligation to make lawyers available to all citizens?
Should lawyers be obligated to work without pay in the public interest?
Read:
Tenants' right to counsel in housing court
NJ Law Journal Editorial: When Judiciary Grants Right to Counsel, Other Branches Must Step Up
American Bar Association Resolution 115 - Access to legal services (2020)
Should an "illegal alien" be allowed to become a lawyer?
Week 2
Slides - Chapter 2, part 1
Ch. 2 - Basic elements of Law Practice
Establishing the lawyer-client
relationship, unauthorized practice, competence, terminating the relationship
Read Pages 19 - 61
Learning outcomes
Relevant Rules and Comments
Working with non-lawyers and ancillary services
5.3.5.4, 5.5, 5.7
Unauthorized practice by lawyers
5.5, 8.5
Defining law practice; Creating the Lawyer-Client Relationship
Creating the lawyer-client relationship
Read `black letter' Rule § 14 - Restatement 3rd The Law Governing Lawyers
RPCs 1.13 (a), (f-g), 6.2
Supervisory responsibility
RPC 5.1
RPC 5.2
RPC 5.3
Discipline
RPC 8.3 Reporting Professional Misconduct
RPC 8.4 Misconduct
RPC 8.5 Disciplinary authority and choice of law
Week 3 (Chapter 2 continued)
Read pages 61-109
Ch 2 Basic Elements of Law Practice
Creating and ending the relationship of attorney and client
The duty of competence
SLIDES Ch. 2 Creating the relationship part 2 SLIDES Ch. 2, part 2A Terminating the relationship
Read
RPCs 1.1, 1.2, 1.3, 1.4
Malpractice Liability
slides - professional liability insurance
RPCs 1.18, , 1.8 (h), 1.2 (c)
Week 4
Read pp. 109-133
Ineffective assistance of counsel and allocation of decision-making between lawyer and client
slides - Ineffective assistance of counsel
Read:
RPCs 1.2, 1.3, 3.2
Principles governing the attorney client relationship
Allocating decision-making between lawyer and client
Read pp. 117-133
slides - allocation of decision-making between lawyer and client
Week 5
Chapter 3 The Business, technology and
marketing of legal services
Read pp. 145 - 189; 189-199; 213-215
slides - Chapter 3 - business and advertising slides - Ch. 3 A reasonable fee and contingent fees
RPC 1.5 Fees
RPC 7.1, 7.2, 7.3 Communications regarding a lawyer's service and solicitation
What is a reasonable fee?
Week 6
Chapter 4 Attorney client privilege and the
duty of confidentiality
SLIDES Confidentiality - Attorney Client Privilege/Work Product part 1
Learning outcomes p.231
Read pp. 231-269
RPCs 1.6, 1.13,
Confidentiality under RPC 1.6
General obligations, exceptions
Week 7
(Chapter 4 continued)
SLIDES Confidentiality and exceptions - Part 2 Exceptions to the duty of confidentiality Waiver of attorney client privilege
Basics of the duty of confidentiality
Read pp. 270 - 286
pp. 286-309
****
Week 8
Chapter 5 Conflicts of interest
Learning outcomes p. 311
Read: pp. 313-349
RPCs 1.0 definitions, 1.7, 1.8(g)
Simultaneous representation standards - direct adversity,
materially limited, reasonable belief,
competent and diligent representation, informed consent, waiver,
aggregate settlements, literary and media rights
Week 9 (Chapter 5 continued)
Conflicts between client’s interests and
lawyer’s personal interests; lawyer advocate as witness; representation adverse to former
client; Lawyer as third party neutral; vicarious disqualification of firm under RPC 1.10
“typhoid Mary, screening; conflicts in criminal
cases
Read: pp. 349-380
RPCs 1.7, 1.8 (g), 1.8 (a), 1.8 (d), 1.8 (j), 3.7, 1.10
Week 10
Chapter 7 Special Ethical Rules for Prosecutors and Judges
SLIDES - Prosecutors duties and discretion
Whom does a prosecutor represent?
What challenges are posed by the Black Lives matter movement?
Should elected prosecutors accept campaign donations from policemen's unions?
Read: Letter from progressive District Attorneys to California State Bar: questions posed for discussion by the State Bar for its August 11 hearing.
Read: 28 U.S.C. 528 Disqualification of Officers and Employees of the U.S. Department of Justice
Read: pp 473-511
Prosecutorial discretion, Discovery
Week 11
Claims of innocence/post judgment relief
Compensation for the wrongly convicted.
Read: pp. 513-518
Podcast: Eric Gonzalez, District Attorney - Brooklyn (Kings County), New York
Week 12
Ethical Standards for Judges
Read: pp 518-551
Week 13 (online)
Do Lawyers have Special Responsibilities?
Read: pp 679-701
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