Professional Responsibility: A Contemporary Approach

Renee Knake Jefferson, University of Houston Law Center

Russell G. Pearce, Fordham University School of Law

Bruce A. Green, Fordham University School of Law

Peter A. Joy, Washington University School of Law

Sung Hui Kim, University of California-L.A. School of Law

M. Ellen Murphy, Wake Forest University School of Law

Laurel S. Terry, Dickinson Penn State-Carlisle

Lonnie T. Brown Jr., University of Tennessee College of Law

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Table of Contents

Teacher's Manual

Companion Site

Chapter 1

• Added Food for Thought Box discussing whether a white supremacist should be permitted to practice law
• Edit to shorten by 10%

Chapter 2

• Learning outcomes have been revised in order to provide a better basis for assessment.
• Sections II(B) and (C) in the unit on “Defining the Practice of Law” have been updated to reflect recent developments, including regulatory initiatives in California, Utah, and Arizona.
• The fourth edition deletes the prior Section V(D), which contained a “Case Study Debating Whether the [2002] Torture Memos Represent Competent Representation.”
• The U.S. Supreme Court case of McCoy v. Louisiana has been added to Section VI(A), which addresses the topic of allocating decision-making between lawyer and client. This section also includes a short new blog excerpt that highlights how decision-making authority issues could have arisen in the trial of the defendant charged with the Boston Marathon bombing and deletes the excerpt by Kristen M. Dama about preventing death row inmates from volunteering to be put to death.
• Several new secondary source citations have been added throughout the Chapter, including in the footnotes, in the “Food for Thought,” “Go Online,” and “Global Perspective” boxes, and in Section III(C) about The Duty to Reject Certain Cases.
• Two multiple choice questions were deleted. (One of the deleted question concerned Rule 5.5; the other deleted question was converted to a hypothetical that highlights the tension between Rule 1.2(b), on the one hand, and the idea that lawyers generally have the freedom to choose their clients and thus should be accountable for their choices).
• A number of multiple choice questions were modified. The modifications were made to improve clarity and to make the questions more consistent with MPRE question style guidelines. All multiple choice questions now include four options.

Chapter 3

• Two excerpts from the introductory material were eliminated and replaced by a new excerpt from The Behavioral Economics of Lawyer Advertising by Hawkins and Knake.
• Material on legal ethics for big data analytics was moved from Chapter 9 to Chapter 3.
• Because ABA Model Rules 7.1-7.5 were significantly revised in 2018, it was necessary to make a number of changes throughout this section to reflect those revisions and to highlight the differences between the new and old versions of the rules.
• Revised Question 3-1 to enhance clarity.
• Added more factual background to Ohralik v. Ohio State Bar Assoc. to provide better context and deleted other unnecessary portions to make room for the additional information.
• Revised Question 3-2 to enhance clarity.
• Deleted an unnecessary portion of In re Primus.
• Revised Question 3-3 to enhance clarity.
• Shortened Matter of Zang by eliminating some unnecessary information.
• Revised Questions 3-4 and 3-5 to enhance clarity.
• Deleted Question 3-6.
• Deleted Alexander v. Cahill because its relevancy has been undermined in light of the substantial revisions by the ABA to the pertinent Model Rules. Added a reference to Alexander in a “Food for Thought” box.
• Revised Question 3-6 (formerly 3-7) to enhance clarity.
• Deleted Question 3-8 because its format was not consistent with other questions.
• Revised Question 3-7 (formerly 3-9) to enhance clarity.
• Simulation was revised to add clarity.
• Revised Questions 3-8 (formerly 3-10) and 3-9 (formerly 3-11) to enhance clarity.
• Substantially rewrote Question 3-10 (formerly 3-12)
• Deleted Debra Baker, Who Wants to be a Millionaire and reordered the Maynard and Dzienkowski articles to make the section’s content flow more logically.
• Added W. Bradley Wendel, Are There Ethical Pitfalls in the Use of Third-Party Litigation Financing (2017).
• Added “Take Note” box regarding a 2018 New York City Bar Formal Opinion on lawyer involvement in a third-party financing arrangement.
• Substantially rewrote Question 3-11 (formerly 3-13).
• Updated discussion regarding Rule 1.8(e) with more recent information.
• Revised reference to Rule 1.15.
• Revised Questions 3-12 (formerly 3-14) and 3-13 (formerly 3-15) to enhance clarity.
• Deleted Rubenstein article.
• Revised Questions 3-14 (formerly 3-16) and 3-15 (formerly 3-17) to enhance clarity.

Chapter 4

• Revised learning outcomes from 17 to 10;
• Revised Question 4-3 to change the answer options so that there are two “yes” and two “no” options rather than three “yes” and one “no” options;
• Provided hyperlink to the federal law involved in the Upjohn case;
• The Global Perspective box after the Moistureloc case was re-written and updated to reflect recent changes to the balance between attorney-client privilege and national security concerns;
• Added a new simulation called, “You Be the Judge,” which tests a student’s understanding of attorney-client privilege through a review of various emails;
• Revised the discussion of attorney-client privilege and Federal Rule of Evidence 502 to incorporate a more detailed comparison with Restatement provisions and updated references to more recent law review articles for additional reading on the subject;
• Revised the discussion of the crime-fraud exception to attorney-client privilege to discuss the necessary elements in greater detail as well as a split of opinion concerning the client’s intent at the time the client consults with the attorney;
• Deleted the Stuart Taylor N.Y. Times Magazine article discussing the O.P.M. case and summarized the facts and issues of the O.P.M. case;
• Added and reprinted with permission Maryland State Bar Association Committee on Ethics, Ethics Docket 2001-18 (2001);
• Added FYI box after Maryland State Bar Association Committee on Ethics, Ethics Docket 2001-18 (2001); and
• Minor edits throughout the chapter.
• Revised learning outcomes for easier measurability.
• Revised all multiple-choice questions to ensure better alignment with MPRE testing practices.
• Added additional case example and hyperlink at the “Take Note” box in Section B1.
• Deleted the lower appellate court decision for Sheppard, Mullin, Richter & Hampton LLP v. J-M Manufacturing Co., 244 Cal. App. 4th 590 (2016) and replaced with edited version of recent California Supreme Court decision: Sheppard, Mullin, Richter & Hampton LLP v. J-M Manufacturing Co., 6 Cal. 5th 59 (2018).
• Removed Food for Thought and Hear from Authors in section II.B.7.
• Deleted subsection II.B.8. “Protecting Against Conflicts Resulting from Multiple Representation.”
• Deleted Williams v. State of Delaware, 805 A.2d 830 (Del. 2002) in the positional conflicts section.
• Updated the Global Perspectives Box at section VI.
• Removed Food for Thought in section VIII.A.1.

Chapter 6

• Chapter 6’s learning outcomes have been revised in order to provide a better basis for assessment.
• In Unit I, Section I-A on Meritorious Claims and Contentions, we modified Question 6-1 for clarity
• Question 6-2, which was originally in Section I-A was modified and moved to Section I-B, which was renamed “Law, Evidence, and False Testimony.”
• In Section I-B, we eliminated a Food for Thought box relating to a panel discussion on the three hardest questions but reprinted the materials in the Teacher’s Manual.
• In Section I-E, we added a Take Note box discussing the Model Code counterpart to Model Rule 3.5(c)—Disciplinary Rule 7-108.
• In Section I-H on Trial Publicity, we have added new Question 6-15, which borrows facts from the case, ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. GANSLER, the full text of which we eliminated.
• For purposes of illustrating Rules 3.6 and Rule 3.8(f) (relating to prosecutors), we also added a new high-profile case, U.S. v. SILVER, which discusses the extrajudicial statements of former U.S. Attorney Preet Bharara in connection with the apprehension of former New York State Assembly speaker Sheldon Silver.
• We have also added a new FYI box with hyperlinks to an op-ed disagreeing with the Silver Court’s conclusion and Bharara’s MSNBC interview.
• In Section I-I on Criticism of Judges, we have deleted one Food for Thought box relating to MATTER OF WESTFALL case and the YAGMAN Court’s claim that an allegation of intellectual dishonesty cannot be proven true or false.
• We have also moved a multiple-choice question relating to judicial misconduct to Section III-D.
• In Section I-J on Decorum, Civility and Obedience to Court Orders, we have added two new Food for Thought boxes—one on the meaning of civility and one on whether civility should be enforced and taught by law schools.
• We have also added a new case, GMAC BANK v. HTFC CORP., which imposed liability on a lawyer for failure to control his client’s obstreperousness in a deposition.
• We have eliminated the full text of KUNSTLER v. GALLIGAN, but mentioned its holding in the introductory material to Section I-J.
• We relabeled Unit II as “Duties to Opposing Parties and Third Parties.”
• We have reshuffled the sections of Unit II and moved the sections on Inadvertent Disclosures and Communications with a Represented Party from Unit III into Unit II.
• In Section II-A on Truthfulness, we have modified Question 6-17 and added new simulation hypothetical “At the Closing” to more precisely analyze the duties under Rule 4.1(b), which tends to be difficult to test in a multiple-choice question.
• We have also added a new Make the Connection box, which discusses the complex interplay between the mandatory disclosure obligation of Rule 4.1(b) and the permissive disclosure allowed in Rule 1.6(b). We have also revised the explanatory text to clarify the meaning of Rule 4.1(b).
• In Section II-B on Inadvertent Disclosures, we have replaced the prior multiple-choice question with a new Question 6-18 and a new Food for Thought box to focus specifically on the metadata problem.
• In Section II-C on Communications with a Represented Party, we have significantly modified Question 6-19 to address a commonly arising scenario involving the no-contact rule.
• We have relabeled Unit III as “Duties Regarding the Law and the Legal Profession” and moved the section on Obedience to Law from Unit II to Unit III.
• In Section III-A on Obedience to Law, we have added a new Food for Thought box about famous lawyer Lynne Stewart in lieu of the full text of UNITED STATES V. STEWART, which we deleted.
• We have also added a new Make the Connection box, which highlights the similarity between Comment [10] of Rule 1.2(d) and Comment [3] of Rule 4.1(b).
• We have added a new Take Note box on anti-money laundering regulations.
• We have also modified Question 6-25 on the responsibilities of a subordinate attorney to conform to MPRE multiple choice style.
• We have shifted the materials on the Sarbanes-Oxley Act out of the large Section on Obedience to Law into a separate, stand-alone Section III-B.
• In Section III-B, we have added a new Question 6-26 to more precisely test the lawyer’s duties under the Sarbanes-Oxley regulations.
• We have replaced the full text of the Sarbanes-Oxley regulations with a succinct summary with a hyperlink to the text of the regulations.
• As noted above, we have shifted a question relating to the reporting of judicial misconduct from Section I-I on Criticism of Judges to Section III-D on Reporting Lawyer and Judge Misconduct for coherence reasons.

Chapter 7

• In order to make room for newer material, we removed three opinions: STUMPF v. MITCHELL, in which a prosecutor charged two different defendants based on inconsistent factual theories (i.e., that each was the triggerman); UNITED STATES v. HAMMAD, in which the prosecutor send a cooperator to record a conversation with a represented defendant; and CONNICK v. THOMPSON, in which a wrongly convicted defendant was denied a civil rights claim based on the New Orleans prosecutor’s Brady violation.
• We also eliminated the subsection (previously Section I-F) on prosecutors’ trial conduct, concerning improprieties in voir dire and jury argument.
• In Section I-C, we added a discussion of Rule 3.8(b) and (c), including reference to a new opinion, ABA Op. 486 (2019).
• In Section I-F (which was previously Section I-G), we added NY City Bar Op. 2018-2, on prosecutors’ post-conviction obligations upon learning new evidence of a convicted defendant’s innocence.
• Added “Take Note” box regarding a recent ABA formal opinion on the ethical propriety of judges refusing to perform same-sex marriages. It was issued in February 2019.
• Added and “For Additional Research” box noting the ABA’s issuance in 2017 of a formal opinion regarding judges conducting independent factual research online.
• Added discussion related to recent formal opinions (state and ABA) on the subject of judges friending lawyers on social media.
• Added reference to the ABA’s recent formal opinion concerning whether judge’s should be disqualified for personal relationships with lawyers in a matter. It was issued in September 2019.
• Revised Question 7-11 to enhance clarity.

Chapter 8

• Edit materials throughout the chapter to shorten by 20%
• Made changes throughout to make the style of questions and headings more consistent
• Changed two article excerpts into summaries

Chapter 9

• Revised learning outcomes to include material on discrimination and mental health issues
• Included a direct link to material on the National Conference of Bar Examiner’s Multi-State Professional Responsibility Exam in light of changes to how the exam will be administered in the future, going from paper to computer.
• Updated Global Perspective boxes
• Eliminated some excerpts to reduce chapter length while maintaining material related to each topic covered.
• Added new Section on “Mental Health and the Legal Profession” which now includes the Gallagher piece from the Third Edition and also a new excerpt “The Legal Profession Has a Mental Health Problem—Which is an Issue for Everyone.”
• Moved material on legal ethics for big data analytics to Chapter 3.

Book Review from 3rd Edition:

"The book was perfect from both a mechanical rules perspective (students did very well throughout on MPRE-style assessments I gave them) and the front and back end materials on the past, present, and future of law practice. My hope was to introduce this material at the front end and then circle back at the end after they’d learned the rules, and this text facilitated that approach perfectly."
—Jack Graves, Professor of Law & Director of Digital Legal Education, Touro Law Center