How to Brief a Professional Responsibility Case

In most first-year courses the court is applying one body of law to one dispute between two parties. In professional responsibility, a single set of facts routinely triggers four separate regimes at once: the disciplinary rules, the law of legal malpractice and breach of fiduciary duty, evidentiary privilege, and constitutional doctrine. A lawyer can comply with the disciplinary rules and still lose a malpractice suit. A lawyer can violate a rule and face no discipline because the only sanction sought was disqualification, which the court denies.

Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), is the classic trap. Defense counsel learned the plaintiff had a life-threatening aortic aneurysm and said nothing during settlement. The court set aside the settlement — but it did so as a matter of the court's power over minors' settlements, not as a holding that the lawyers violated an ethics rule. If your brief records "holding: lawyer must disclose," you have written down something the case does not say.

So your brief needs a line that answers: what body of law is this court actually applying, and what is the worst thing that can happen to the lawyer under it?

Keep the familiar skeleton and insert PR-specific fields. A workable one-page format:

Many canonical PR cases predate the 1983 Model Rules and apply the 1969 Model Code of Professional Responsibility, with its Disciplinary Rules and aspirational Ethical Considerations. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), and In re Primus, 436 U.S. 412 (1978), are Code cases about in-person solicitation; you read them today against Model Rule 7.3. Write down the Code provision the court cited, then write the Model Rule counterpart next to it. Do not silently substitute.

State variation is real and it is the main thing that drives disagreement among the cases in your reader. California operated under its own rules until a substantially reorganized set took effect November 1, 2018, and California's confidentiality duty still runs through Business and Professions Code section 6068(e) alongside the rules. States differ sharply on Rule 1.6 exceptions — some make disclosure to prevent death or substantial bodily harm mandatory rather than permissive, and states split on disclosure to prevent or rectify client financial fraud. New York's rules are numbered like the Model Rules but are not identical in text.

Practical move: when a case turns on a confidentiality, conflicts, or candor question, open the actual Model Rule and its comments before you brief, and note in the margin whether the court's state rule matched. Comments matter — Rule 1.6 cmt. 2 and Rule 1.7 cmt. 8 do real work in these opinions.

Disqualification cases and discipline cases look similar and are not. In Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987), legal services counsel had a concurrent conflict between two client groups; the remedy was reversal and disqualification, not discipline. Westinghouse-line disqualification cases turn on prejudice to the moving party and on whether the motion is itself a tactical weapon, considerations that have nothing to do with whether the lawyer deserves a sanction.

Malpractice and fiduciary-duty cases turn on duty, breach, causation, and damages, with the ethics rules serving as evidence of the standard of care rather than as the cause of action. The Model Rules' Scope section says explicitly that violation should not itself give rise to a cause of action. Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980), is a duty case — it establishes when an attorney-client relationship forms from a brief consultation — so your brief should record the elements of the negligence claim, not a rule number.

Constitutional criminal procedure cases are a third category. Nix v. Whiteside, 475 U.S. 157 (1986), holds that counsel who dissuaded a client from committing perjury did not render ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). It is not a holding about what Rule 3.3 requires, though it is powerful support for the position that Rule 3.3(a)(3) does not violate the Sixth Amendment. Brief the constitutional holding and the ethics implication on separate lines.

Privilege cases — Upjohn Co. v. United States, 449 U.S. 383 (1981), and Swidler & Berlin v. United States, 524 U.S. 399 (1998) — are evidence cases. Add a field noting the distinction between privilege (evidentiary, narrow, waivable, invoked in a proceeding) and the Rule 1.6 duty of confidentiality (broader, covers all information relating to the representation, applies everywhere).

Advertising, solicitation, and bar-admission cases run on standard free speech and association machinery, and your brief should identify the tier of scrutiny. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), brought truthful lawyer advertising within commercial speech protection. Ohralik and Primus, decided the same day, split on whether the solicitation was in-person for pecuniary gain or associational activity by a public-interest organization. Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), upheld a 30-day ban on targeted direct mail to accident victims under intermediate commercial speech review.

For these, add two fields: the state interest the bar asserted (client protection, privacy, avoiding overreaching, the profession's reputation) and the evidentiary record supporting it. The cases turn on record quality more than on doctrine, and that is the point your professor is likely to press.

Bluebook rule 12.9.4 governs model codes and restatements of this type. Under the 21st edition, "Professional" abbreviates to "Pro." Use these forms:

The MPRE tests the ABA Model Rules and the Model Code of Judicial Conduct as written, plus generally accepted principles of the law governing lawyers. It does not test the outcome of the state case you read on Tuesday. So end every brief with two lines: "Model Rule answer" and "Case answer," and note when they differ. In re Fordham, 668 N.E.2d 816 (Mass. 1996), for instance, found a fee unreasonable under Rule 1.5 even though the client agreed to it and the work was competent — the Model Rule answer and the case answer converge there, which is worth marking as a hard-edged application of an open-textured rule.

For your course exam, the money field is the counterfactual. PR exams present a lawyer at a fork and ask what she may, must, or must not do. Your brief should therefore capture the exact moment of choice and the permissive-versus-mandatory character of the rule. "May reveal" under Rule 1.6(b) and "shall take reasonable remedial measures" under Rule 1.6's counterpart in Rule 3.3(b) are different animals, and cases blur them constantly. Write down which verb the rule uses.

Finally, note the sanction severity and the aggravating and mitigating factors the court used. Disciplinary opinions frequently apply the ABA Standards for Imposing Lawyer Sanctions, and professors ask why one lawyer got a public censure and a nearly identical lawyer got disbarred. The answer is almost always prior discipline, dishonest motive, client harm, restitution, and cooperation with the disciplinary authority — capture those from the opinion rather than reconstructing them later.