Professional Responsibility: Heroes & Villains
http://law.gsu.edu/ccunningham/PR/
Clark D. Cunningham
Georgia State University College of Law: Law Course 6020


Draft Syllabus
Based on Fall 2013 Semester

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 251 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 (8/21/13)

NOTE: Be prepared to change seats within the first 5 minutes of class as we form "firms" for the semester.

  1. Course Introduction
  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)

    CLASS TWO (8/28/13)
    Review information on the course home page about firms, quizzes and appeals.
    Please complete the on-line student information and learning contract form before class on August 28 (click here for the form)
  5. Practice Quiz (pdf) (not for a grade - use as a study guide for Readings 6 - 24 - you will "take" the quiz in class using your clicker)

    What Are the Georgia Rules of Professional Conduct?
  6. Georgia Supreme Court Order 2000-3 (June 12, 2000) (adopting new Rules of Professional Conduct effective January 1, 2001) (pdf) (for complete order, see Resources)
  7. Georgia State Bar Rule 4-102: Disciplinary Action; Levels of Discipline GLE 122-23
  8. GRPC: Preamble GLE 4-5
  9. GRPC: Scope GLE 5-7
  10. GRPC 1.0 Terminology (read comments closely) GLE 7-11
  11. Ways to Get Advice on the Application of the Georgia Rules of Professional Conduct GLE 159-61
  12. Skim Georgia Disciplinary Procedures in order to answer Quiz Questions 4-6 GLE 124-58

    Regulation of Lawyer Advertising Through the Bar Disciplinary System
  13. Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (established 1st Amendment right for attorneys to advertise)
  14. GRPC 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES (GLE 99-101)
  15. Read ABA MR 7.1 (including the comment)
  16. Comparison chart on Rule 7.1 (Word document)
  17. GRPC: 7.2: ADVERTISING (GLE 101-103)
  18. GRPC 7.4: COMMUNICATION OF FIELDS OF PRACTICE (GLE 106)
  19. GRPC 7.5: Firm Names and Letterheads (GLE 106-107)
  20. Read ABA MR 7.2, 7.4 and 7.5 (you are NOT required to read the comments)
  21. In the Matter of Anonymous, 775 N.E. 2d 1094 (Ind. 2002) (example of deceptive lawyer advertisement)
  22. Sample website that violates the Georgia Rules of Professional Conduct (created by Robert Bexley, COL '10):ppt pdf
  23. Falanga v State Bar of Georgia , 150 F.3d 1333 (11th Cir.1998)
  24. Formal Advisory Opinion 05-6: Ethical propriety of lawyer advertising where the intent is to refer out to other lawyers (GLE 163-5)

  25. Lt. Commander Charles Swift: Lawyer for Bin Laden's Driver (Part One)
    Review the following rules, including comments, as providing possible guidance to a lawyer in Swift's position when he is appointed as Hamdan's lawyer; compare them with the Rules for a Lawyer that you developed in your firms during Class One
  26. GRPC 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer GLE 13-15
  27. GRPC 1.4: Communication GLE 16-18
  28. GRPC 1.7: Conflict of Interest: General Rule GLE 25-29
  29. GRPC 1.8(f): Conflict of Interest Prohibited Transaction GLE 30 (just read section (f) of Rule 1.8)
  30. GRPC 2.1 Advisor GLE 59-61

    CLASS THREE (9/4/13). Please review Readings 13-30 for Class Three.
  31. Five practice quiz questions (pdf) (not for a grade)

    Enforcing the Georgia Rules of Professional Conduct
  32. GRPC 5.1: Responsibilities of Supervisory Lawyers
  33. GRPC 5.2: Responsibilities of Subordinate Lawyers
  34. GRPC 5.3: Responsibilities for Nonlawyer Assistants
  35. GRPC 5.5: Unauthorized and Multijurisdictional Practice of Law
  36. GRPC 8.1: Bar Admission and Disciplinary Matters
  37. GRPC 8.3: Reporting Professional Misconduct
  38. GRPC 8.4: Misconduct
  39. GRPC 8.5: Choice of Law
  40. GRPC 9.1: Reporting Requirements
  41. GRPC 9.2: Prohibition on Agreements not to File Disciplinary Complaints
  42. GRPC 9.3: Cooperation with Disciplinary Authorities
  43. GRPC 9.4: Jurisdiction and Reciprocal Discipline
  44. In the Mattter of Jack O. Morse, 266 Ga.652, 470 S.E.2d 232 (1996) GLE 223
  45. American Bar Association Standards for Imposing Lawyer Sanctions GLE 224-245 (skim pp 224-43, read pp 243-45 -Sections 9.2-9.4)

    GRADED WRITING ASSIGNMENT (0-2 points)
  46. Due Tuesday, September 10 by 5pm. Email to Professor Cunningham AND your other firm members your Proposed Firm Code of Conduct (3-5 standards for peer evaluation).
    To review codes of conduct adopted by last year's firms, click here


    CLASS FOUR (9/11/13) There will be an open book, graded quiz in Class 4. Make sure you always bring your copy of GLE to class
  47. Four possible quiz questions (pdf) (Class 4 quiz will include one or more additional questions as well)

    Solicitation and Referral Fees
  48. Ohralik v Ohio State Bar Ass'n, 436 U.S. 477 (1978)
  49. In re Primus, 436 U.S. 412 (1978)
  50. Margaret Love, Summary of Ethics 2000 Recommendations for Rules 7.1-7.3
  51. GRPC 7.3: Direct Contact with Prospective Clients
  52. ABA MR 7.3
  53. GRPC 5.4: Professional Independence
  54. GRPC 1.5(e) and Comments 7,8 (fee sharing among lawyers)
  55. Formal Advisory Opinion 03-3: Is it ethically permissible for an attorney to enter into a “solicitation agreement” with a financial investment adviser? (GLE 187-89)
  56. Matter of Kennedy, 268 Ga. 751 (1997) (8 month suspension for compensating a person to recommend his employment by a client) (2 pg pdf)
  57. In re Maniscalco, 275 Ga 238 (2002) (8 month suspension for compensating a person to recommend his employment by a client) (2 pg pdf)
  58. 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)
  59. 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)

    Monday, September 16: Deadline for emailing appeals to Class 4 quiz is 9:00 am

    CLASS FIVE (9/18/13) There will be an open book, graded quiz in Class 5. Make sure you always bring your copy of GLE to class

    GRADED WRITING ASSIGNMENT (0-3 points)
  60. What Clients Want: Conduct short interview and complete on line questionnaire by 5pm on 9/18/13

  61. Two possible quiz questions (pdf) (Class 5 quiz will include one or more other questions as well)

    Fees
  62. GRPC 1.5(a) -(d): Fees
  63. Goldfarb v Virginia State Bar, 421 U.S. 773 (1975)
  64. J. Auerbach, Unequal Justice 44-50 (1970)
  65. McKenzie Construction v. Maynard, 758 F.2d 97 (3rd Cir. 1985)
  66. Clark, "Fear and Loathing in New Orleans," 17 Suffolk Law Review 79 (1983)
  67. Amendments at the August 2001 ABA Meeting to Proposed Rule 1.5
  68. Stephanie Cahill, "New York Courts Require [Fee] Letter," ABA Journal E-Report (3/29/02)
  69. New York Rule 1215: Written Letter of Engagement
  70. Advisory Opinion 47: Contingent Fees to Collect Past Due Alimony or Child Support
  71. Formal Advisory Opinion 87-5: Assertion of Attorneys' Retaining Liens
  72. Formal Advisory Opinion 91-2: Advance Fee Payments
  73. Formal Advisory Opinion 01-1: Is it ethically permissible to charge for a standard unit of time without regard to actual time expended?
  74. Formal Advisory Opinion 03-1: May an attorney charge a non-refundable special retainer?
  75. Formal Advisory Opinion 11-1: Flat fixed fee contract for legal services
  76. GRPC 1.15(I) Safekeeping Property - General
  77. Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)
  78. GRPC 1 .15(II) Safekeeping Property - Trust Account and IOLTA
  79. GRPC 1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records

    CLASS SIX (9/25/13)

    GRADED WRITING ASSIGNMENT (0-3 points)
  80. Conduct Rules for each firm due by 5pm on 9/25/13 by email to Professor Cunningham. One submission from each firm; same grade for each firm member.

  81. Clark D. Cunningham, What Do Clients Want From Their Lawyers?
  82. GRPC 1.1 and 1.3, review GRPC 1.2, 1.4 and 2.1

    The Duty of Confidentiality and Its Exceptions: Frank Armani and the Robert Garrow Case
  83. Excerpts from Paul S. Milich,”Attorney Client Privilege,” Courtroom Handbook on Georgia Evidence
  84. GRPC 1.6 (Confidentiality of Information)
  85. GRPC 1.14 (Client Under a Disability) (pdf)
  86. GRPC 1.16 (Declining or Terminating Representation)
  87. Georgia Superior Court Rule 4: Attorneys Appearance, Withdrawal and Duties (excerpts)
  88. 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.
  89. 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.


    CLASS
    SEVEN (10/2/13)
    Seven possible quiz questions for Class 7 (pdf)
  90. GRPC 3.3 (Duty of Candor toward the Tribunal)
  91. 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.
  92. "Slayer's 2 Lawyers Kept Secret," New York Times ( 06/20/74 ) (1 page)
  93. New York Public Health Law (excerpts) (1 page)
  94. People v Belge, 372 N.Y.S.2d 798 (Onondaga County Court 1975) (5 page pdf download)
  95. People v Belge, 376 N.Y.S.2d 771 (App. Div. 1975) (1 page)
  96. People v. Belge, 41 N.Y.2d 60 (Ct. App. 1976) (1 page)
  97. N.Y. State Bar Opinion No. 479 (1978) (5 pages)
  98. In re Ryder, 263 F.Supp. 360 (E.D. Va. 1967) (8 pages)
  99. GRPC 3.8 (Special Duties of a Prosecutor)

    Monday: October 7
    Deadline of 9am for filing appeals from Class
    7 Quiz.


    CLASS EIGHT (10/9/13):
    Open book quiz. Questions 6 and 7 from Seven possible quiz questions for Class 7 may be tested as well as one or more other questions based on readings assigned for Classes 6 and 7.
  100. 1st Simon Exercise (all students to review carefully to prepare to play role of lawyer at initial meeting with Simon) Additional information about how the First Simon Exercise will take place.

    Monday: October 14
    Deadline of 9am for filing appeals from Class
    8 Quiz.


    CLASS NINE (10/16/13)
    Two possible quiz questions (pdf) (Class 9 quiz may include one or more other questions as well)
  101. Confirm Video Access (should take less than 10 minutes) (password is F13). Due before class. 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
  102. Second Simon Exercise (confidential instructions handed out during Class 8) Graded 0-3 points
  103. Freedman, "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions," 64 Mich. L. Rev. 1469 (1966)
  104. ABA Model Code: DR 7-102
  105. Nix v. Whiteside, 475 U.S. 157, 106 S. Ct .988 (1986)
  106. Mohandas K. Gandhi: Biography
  107. Gandhi, "Deceived By a Client "
  108. Gandhi, "How a Client was Saved"
  109. Clarence Darrow, The Story of My Life (1932): Chapter 23 (George Bissett)

    Monday: October 21
    Deadline of 9am for filing appeals from Class
    9 Quiz.


    CLASS TEN (10/23/13) No quiz this week
    Abbreviated class due to unannounced fire drill
  110. 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?
  111. History of Confidentiality Exceptions
  112. Original version of ABA Model Rule 1.6 as adopted in 1983
  113. Ethics 2000 recommendations to amend MR 1.6
  114. Summary of ABA H(Class 9 quiz may include one or more other questions as well) ouse of Delegates Actions in 2001 on MR 1.6
  115. ABA MR 1.6 as adopted in 2002
  116. ABA MR 1.6 as amended in 2003 (current version)
  117. Comparison of 1983 and 2002 versions of ABA Model Rule 1.6
  118. Comparison of Current MR 1.6 and GRPC 1.6 (Word document) (pdf)

    CLASS ELEVEN (10/30/13) No quiz this week but bring your clickers for review questions
    Guest speakers canceled due to fire drill during Class Ten
    Complete review of materials assigned for Classes 7, 9 and 10
    Some final exam questions are likely to be similar to review questions discussed in Class 11.

    Graded Writing Assignment on Simon Exercise (40% of course grade) due by 5:00 pm on Friday, November 1
    Review all material on the Exercise One web page


    CLASS TWELVE (11/6/13)
    Three possible quiz questions (Class 12 quiz may include one or more other questions as well)
  119. GRPC 1.7, 1.9
  120. 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.]
  121. Read ABA Model Rule 1.7
  122. Comparison of Current ABA MR 1.7 and GRPC 1.7
  123. Jonathan D. Glater & John Schwartz, Enron's Many Strands: The Deliberations, New York Times ( 6/17/02 )
  124. John Schwartz & Kurt Eichenwald, Enron's Many Strands: The Lawyer, New York Times (6/17/02)
  125. James Podgers, "Lawyers as Fraud Fighters: Proposed Rules on Reporting Financial Wrongdoing Go to House of Delegates," ABA e-Report ( 8/8/03 )
  126. GRPC 1.13 (Organization as Client)
  127. Jesse v Danforth, 485 N.W.2d 63 ( Wis. 1992)
  128. Willner's Fuel Distributors, Inc.v. Norveen, 882 P.2d 399 ( Alaska 1994)
  129. Taylor , "Ethics and the Law: A Case History," NY Times Magazine ( 1/9/83 ) (OPM Case)
  130. lnstructions for OPM exercise (in-class role play) (prepare to play the role of the lawyer, Reinhard)

    Monday: November 11
    Deadline of 9am for filing appeals from Class
    12 Quiz


    CLASS THIRTEEN (11/13/13)
    Two possible quiz questions (Class 13 quiz may include one or more other questions as well)
  131. Read: Case Studies: Volume II (A) pp. 2-14, 24-30 (Baby Jessica Case)
  132. GRPC 1.8
  133. GRPC 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.9
  134. GRPC 4.1, 4.2, 4.3. 4.4
  135. Georgia Formal Advisory Opinion 03-2 (confidentiality between jointly represented clients) (GLE 185-86)
  136. Baby Jessica: Exercise One - Instructions
  137. FAO 86-4 (GLE 169-71)
  138. FAO 94-3 (GLE 177-78)
  139. FAO 05-7 (GLE 193-94)
  140. FAO 05-11 (GLE 195-99)
  141. FAO 10-1 (GLE 210-16)
  142. Class Counsel Loses $7,000,000 in Attorney Fees Due to Conflict of Interest
  143. Bernocchi v. Forcucci, 279 Ga. 460, 614 S.E.2d 775 (2005)
  144. Greg Land, Conflict claim sours big firm’s work with health giant (Fulton County Daily Report, August 31, 2006)
  145. May 30, 2006 Engagement Letter from Duane Morris to McKesson (pdf) (read page 3 closely, skim other pages)
  146. Sullivan County v. Town of Acworth, 686 A.2d 755 (N.H. 1996) (4 pp)

    Monday: November 18
    Deadline of 9am for filing appeals from Class
    13 Quiz


    CLASS FOURTEEN (11/20/13)
    Possible quiz questions (Class 14 quiz may include one or more other questions as well including questions based on the Scarnecchia video)
  147. Review GRPC 1.9 and Read GRPC 1.10 and 1.11
  148. Introduction to Nissan Motor v Orozco
  149. Nissan Motor Corp. v. Orozco, 595 So.2d 240 (Fla.App.1992)
  150. ABA House OKs Lateral Lawyer Ethics Rule Change(ABA Journal Weekly Newsletter Feb 16, 2009)
  151. Read ABA Model Rule 1.10
  152. Comparison of Current ABA MR 1.10 and GRPC 1.10 (pdf)
  153. Case Studies: Volume II (A) (Baby Jessica Case)
    -- Review Baby Jessica case chronology at p5
    -- pp. 44-48, 50-55, 72
  154. Cunningham, "How Can We Give Up Our Child?" (pdf)(4 pp)
  155. Interview with Suellyn Scarnecchia (view using Quicktime - you may need to wait a few minutes for download) (15 minutes)
  156. Steven Keeva, "A Client's Perspective," ABA Journal 76 (Jan. 2005) (pdf file)

    Tuesday: December 3
    Deadline of 9am for filing appeals from Class
    14 Quiz


    Graded Firm Feedback Assignment due by 5:00 pm on Tuesday, December 3