Wednesday, March 6, 2013

Professional Responsibility & Rule Setting

Hat tip to John Steele at the Legal Ethics Forum for calling out a few artilces of interest:

Douglas R. Richmond: "Watching Over, Watching Out: Lawyers' Responsibilities for Nonlawyer Assistants" --
  • "Lawyers depend on the support of many different non-lawyer assistants in order to practice successfully. Unfortunately, these assistants sometimes err and are occasionally guilty of deliberate misconduct. Either way, courts and professional authorities may hold the employing or supervising lawyers responsible under Model Rule of Professional Conduct 5.3 and state analogs, as well as tort and agency law principles."
  • "But if lawyers’ supervisory responsibilities for their non-lawyer assistants seem obvious, it is also true that lawyers all too often fail in them — or perhaps fail to appreciate or recognize them until it is too late. "
  • "Moreover, despite the importance of lay assistants in the practice of law and the many cases in which lawyers have been disciplined under Rule 5.3 for failing to supervise assistants, scholarship on lawyers’ related duties is scarce. Lawyers and courts alike suffer from the resulting lack of guidance on key issues."
  • "This Article is intended to remedy that deficiency. In doing so, it carefully maps the contours of lawyers’ supervisory duties in this context and analyzes several issues that regularly ensnare practicing lawyers or which present special challenges."
  • "Importantly, the Article explains why lawyers who fail in their supervisory duties must be disciplined on that basis rather than being held vicariously liable for assistants’ misconduct. This is an enormously important issue in practice and, regrettably, one that some state supreme courts miss."
Stephen Gillers, "How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession" --
  • "Using diverse lawyer regulatory issues that have arisen in the ABA, courts, and other venues across the last forty years, this Article examines in detail the methodology and styles of argumentation that lawyers use to support or defeat change. Regulatory issues addressed include non-lawyer ownership of law firms, fee-sharing with non-lawyers, collaborative law, and a requirement that fee agreements with clients be in writing, Recommendations for improvement in the process of rule making are offered."
And finally: "Do you ‘get’ OFR?" --
  • "A number of positives are revealed in a recent survey conducted by the Solicitors Regulation Authority. Most notably, a year after the implementation of outcomes-focused regulation (OFR) and perhaps understandably, firms’ attitudes are shifting towards greater levels of acceptance as they increase their experience of working with the new regime of regulation."
  • "Measuring the impact of OFR on firms, released last week, found that 50% of respondents felt ‘favourable’ about OFR, a welcome increase on the previous year’s 36%. However, that still leaves the other 50% to be convinced."

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