Professional Responsibility 101 – A Quick Look at Upperclassmen Courses

It is important to know what kind of law you want to practice. The areas of law are endless, there are numerous claims to be brought and an infinite source of clientele. And unfortunately, you only get three years in law school to figure out what you might be good at and will actually like to practice! You also have to meet certain requirements to graduate and there are classes law students take to help prepare for the bar exam. So what is a law student supposed to do? Most law schools require you to take certain “basic” courses in your 1L year but allow you to choose your schedule in your 2L and 3L years. Thus, you can choose electives that interest you, find out what kind of law suits your fancy, and get your feet wet in specific types of law. Arguably, one of the most important classes you should take in law school is professional responsibility.

Personally, I took professional responsibility a little late in the game, fall semester of my 3L year, and took the MPRE in the same semester. My course was focused on the Michigan Professional Responsibility Rules however, we did go over the MPRE and the ABA Model Rules. Here is a quick overview of this course so you have a general understanding of professional responsibility before you take it.

Professional Responsibility in General

A professional responsibility course can vary depending on what state your law school is located in and what other courses your law school offers. (Note: it may even be called something different like “ethics” or “ethical lawyering!”) In the simplest, most concise terms, professional responsibility deals with the ethics of being a lawyer and (in addition to the law like everyone else) what rules those in the legal profession must follow. These rules usually apply regardless of whether you are actually practicing law or not. Meaning, these rules apply even if you are doing something in your personal life or engaged in work that isn’t usually done by an attorney. It is incredibly important to know how to practice ethically and this is the focus of most professional responsibility courses. It is important to note that many courses follow the ABA’s Model Rules of Professional Conduct while others focus on their state-specific professional conduct rules. (Most states have based their professional conduct rules on the Model Rules so make sure you can identify the distinctions!)

Most professional responsibility courses cover a wide variety of topics that concern the practice of law and interacting with clients. Some courses are designed to help you prepare for the Multistate Professional Responsibility Exam. Professional Responsibility is a topic that is covered on the essay portion of some bar exams, including in Michigan. Thus, many law schools offer a professional responsibility or ethics course and highly recommend taking it. Some schools, like my alma mater, made professional responsibility a requirement for upperclassmen students.

Attorney-Client Privilege and Conflicts of Interest

The focus of many professional responsibility courses and the topics you probably spend the majority of time on are attorney-client privilege/relationship (along with the duties of the attorney that go along with it) and conflicts of interest. The attorney-client relationship is a very important thing for lawyers. An attorney-client relationship is formed when a person manifests to the attorney their intent to have the attorney provide legal services for them and the attorney fails to manifest lack of consent to do so. The attorney knows or reasonably should know that the person reasonably relies on the attorney to provide the services. Along with this relationship comes certain duties of the lawyer, such as the duty of confidentiality, the duty of communication, the duty of competence, the duty of diligence, and so on. The attorney-client privilege protects confidential and privileged communications between an attorney and a client for the purpose of seeking legal advice. In addition to this privilege, attorneys are not allowed to disclose confidential information about the client. The duty of confidence and the attorney-client privilege last forever (even when the relationship is terminated!)

Closely related to the duty of confidence and the attorney-client privilege is the idea of a conflict of interest. Conflicts of interest, simply put, are when two interests are in conflict with one another. There are several sources for potential conflicts of interest and each section has their own rules that go with it. The four main sources of conflict are with: current clients (including prospective clients), former clients, the lawyer’s personal interests (e.g. economical, familial, and social), and 3rd parties (e.g. spouses, fee-payers, shareholders). As an attorney, there are certain conflicts of interest that cannot be waived and may result in your inability to represent a client. And they are not something you can just ignore either – like my PR professor said “conflicts are like diseases, once you have them, you can’t get rid of them!” This makes sense because you wouldn’t want an attorney using information he gained while representing a competing interest against another client.

MPRE

The MPRE stands for Multistate Professional Responsibility Exam. In most states, in addition to the bar exam (and other requirements that vary by state), you must take (and pass) the MPRE in order to practice law. The exam is MUCH shorter than the bar exam and focuses only on professional responsibility and the ethics of lawyering. This exam tests solely the ABA Model Rules of Professional Responsibility. The actual logistics of the exam are pretty simple: it consists of 60 multiple-choice questions but only 50 questions are graded on a scaled basis (10 are unmarked, ungraded “pretest” questions). The format for the answers are “yes, yes, no, no” that test various topics (e.g. conflicts of interest). Many students wait to take the MPRE until after taking a course, but you do not have to wait until graduation to sit for this exam. Thus, most people elect to take the MPRE in their 2L year or during the summer before their 3L year.

Overview

This is a quick overview of professional responsibility, so some professors or law schools may organize the course differently and the specific substantive law may change depending on your state. However, this snapshot should give you a general understanding on what to expect from a professional responsibility or ethics class. Armed with this knowledge, you will be able to successfully navigate through this upperclassmen course!