LAWYERING PHILOSOPHIES:
I. Instrumental Approach
a. Client centered approach, hired gun
b. Client interest guides your decision making/ solely pursuing anything that is the clients perspective
c. Justification:
i. idea that our system works with advocates on both sides
d. Problems:
i. unwilling to compromise, very fixated
ii. Role differentiation: idea that you separate yourself from your client (I represent rapist/ murderers but I do not support it)
iii. Client has illicit or objective objectives (become blind to legal limits)
iv. It is the technicality or the win that matters
v. Be careful not to make assumptions about your clients goals
II. Directive Approach (lawyers as directors)
a. Directive lawyers tend to focus on their roles as officers of the legal system and members of a profession
b. Lawyer knows best approach (you are the expert)
c. Puts lawyer in the drivers seat as an expert
d. Very considered with law and principle and ethics
e. Problems:
i. listening problem (steamrolling over your client)
ii. patronizing to your client
iii. focus on the lawyers reputation and not the clients objectives
iv. very accepting of legal structure tends not to challenge the law
v. to emotionally detached or lack of identification with the client
III. Collaborative Approach
a. “friend approach”
b. Have a dialog with the client
c. Believe that they should join with clients in the representation but neither dominate nor be dominated by a client’s values
d. Problems
i. very hard to do in practice (depends on size of practice and your clients willingness to collaborate with you)
IV. Social Justice Approach
a. Decides on the impact the decision will have on social values that the lawyer supports
b. Consequences on society (how does my decision making on this ethical grey area have on society as a whole)
c. Problems:
i. what is justice (your view of justice may not be others view of justice)
ii. assume that society agrees on what is just
V. Personal Morality Approach:
a. use the values you were raised with to decide the ethical grey areas
b. Problems:
i. this is individual/ very subjective
1. may not be the same as the client
VI. Buried Bodies: Robert Garrow and His Lawyers
a. Frank Armani and Francis Belge represent Robert Garrow on a murder charge for a college student who was stabbed. The attorney’s found the bodies (2 missing girls) based on information given to them by Garrow. The lawyers take pictures of the bodies and move them to get better pictures of the bodies. Both never tell of the location of the bodies, even though families worried, use this information to get a plea for insanity. Plea deal does not happen. The bodies are eventually found and Garrow goes to trial. At trial Garrow tells of the murders he committed including the two bodies. The lawyer then hold a press conference saying that they knew all along about the bodies and of the information Garrow told in trial. Garrow is sent to a maximum security prison.
b. Choices:
i. Asked what he had done
ii. They took the case
iii. Plea bargain
iv. Disclosed information that led to the client being shot
v. Press conference
vi. Found the bodies
c. Personal Morality
i. This was used when Armani gave up the information that led to Garrow being shot (Garrow had contacted Armani’s young daughter when he escaped)
d. Directive approach
i. Used when held the press conference (worried about his own reputation)
e. Client centered approach: the rest of the choices made by the lawyers
DECIDING WHAT CLIENTS TO REPRESENT:
I. This is discretionary (may) not mandatory
II. Rule 1.2(b): a lawyers representation of a client including representation by appointment does not constitute an endorsement of the clients political, economic, social or moral views or activities. (should not be denied because cause is controversial or the subject is unpopular)
a. Comment 5: Independence from client’s views or activities
i. Legal representation should not be denied to people who are unable to afford legal services or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities
b. Don’t have to take it
III. Lawyering Philosophies to Decide:
a. Instrumental Approach
i. Fees
ii. Expertise Knowledge
iii. There is no limit on the number of factors you can use under the client centered approach
b. Social Justice Approach
i. Client representation promotes justice in some way benefits society
c. Directive Approach
i. results, profile, how will this build my career or reputation
d. Morality Approach
i. how does this client accord with my values or beliefs
e. Collaborative
i. clients that you can work with and have a dialog with
IV. Career choice is the only means of client selection: 2 Methods of choosing
a. look at the difference between practice settings
b. Look for differences within practice settings
c. what kind of clients does this firm have
i. Client Centered:
1. Would I have much interaction directly with the client (want to interact with clients)
ii. Directive Approach:
1. Reputation of the firm, reputation of the clients, what kind of reputation do the people you get to work with have
iii. Collaborators:
1. Do you work with individuals or businesses, will I work with the cl
sel claims that she should not be forced to represent the client (files a motion to withdraw). Plaintiff claims that after the warnings on tobacco products came out he began smoking “roll your own” cigarettes which he thought were better for him. However, he learned that they were more harmful and that he now suffered from emphysema and other diseases. Counsel claims that she does not have to represent plaintiff because “a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for no compensation.
i. “when indigency is the principle reason for disparate access to the civil justice system in an individual case a federal court does possess the inherent authority to bring about a fair and just adjudicative process by conscripting an unwilling lawyer to represent the indigent party
ii. Plaintiff’s inability to obtain counsel was not because of indigency but rather marketability and therefore the notions of equal justice have not been offended and counsel does not have to represent the plaintiff
iii. No statutory authority to appoint lawyers for civil cases
iv. Uses inherent authority to get around the ruling in Mallard: every court has inherent authority to appoint counsel
1. 2 Reasons the power exists
a. To ensure a fair and just adjudicative process
i. While there is no constitutional right it may be necessary in particular cases to bring about a fair outcome
ii. presumes both sides has equal assets
iii. when indigency is the primary reason for disparate access to the justice system federal courts possess the inherent authority to bring about a fair and just adjudicative process by appointing an unwilling lawyer to represent the unwilling party
b. To maintain the integrity and viability of the judiciary and of the entire civil justice system
i. Must be trusted for peacefully resolving
ii. The ability of the courts to fulfill this is being eroded by a number of forces
iii. The use of balance as a means to settle differences
iv. The reduction of governmental resources to provide legal services to the poor
[LW1]Do you use both factors or just one factors how on exam
