Legal Profession Outline
I. RELATIONSHIP OF LAW, LAWYERS AND ETHICS
a. Ranked only above the media
b. Model Rules
i. States adopt the ABA model rules into the rules of that state
ii. The Model Rules are the most current rules but we’ll also speak about the GA rules and the Model Code (the older set of rules that is obsolete but we read it because the states have adopted the Model Code into their Model Rules)
(1) The Model Code. The ABA promulgated the model code (MC) of professional conduct in 1969 to put teeth into Canons of Professional Responsibility. The code got the force of law when it was adopted by the highest state court, and most every state adopted some version.
a. Nine canons: state general ethical principles; not binding.
b. Under the canons there are ethical considerations, which are aspirational; not binding.
c. Under the canons, there are disciplinary rules which set a min standard below which a lawyer cannot fall. Lawyers are subject to discipline if they do not follow the DRs.
d. Model code was confusing, so the ABA scrapped it and adopted the Model Rules in 1983.
e. Most states have adopted some version of the MR, some states such as NY still follow the MC.
(2) The Model Rules: The ABA model rules of prof conduct were promulgated in 1983. They were overhauled early in the 21st century.
a. Some rules are mandatory – say shall
b. Some rules are permissive – say may
c. ADVERSARY ETHICS
i. Perspectives on the Role of Lawyers.
(1) Lord Henry Brougham: a lawyers job is the most important and “knows but one person in all the world and that person is his client…to save that client by all means and expedients, and at all hazards and costs to other persons…”
a. He goes too far: It may be appropriate for a lawyer to push the limits in the criminal context (like talking to the media though you are not supposed to) bc the stakes like in death cases are so high. Also the prosecution is the state – they have all the money and the resources – so you as the defense attorney want to try and equalize the field
b. Lord Brougham’s model called a standard conception of a lawyers role and as neutral partisanship which means a lawyer who is partisan to one side but you don’t care what he did and you don’t care what means you use – you approach it in a unattached way – amoral way, perhaps arguably an immoral way.
(2) Professor Abbe Smith: No matter how personally distasteful or morally unsettling, zealous advocacy demands that criminal defense attorneys use whatever they can, including stereotypes to defend their clients.
ii. Is a prosecutor allowed to push the limits to secure a conviction?
(1) A guy calls police and admits he did a crime but he wants to talk to a public defender first. The prosecutor calls him and poses as the public defender and turns himself in. Is that appropriate? No, he was disciplined as his conduct was fraudulent. However, in 3.8 the prosecutor has a duty to protect the public and so this was justice
(2) J Holmes: personal conscience should not play any role in your advocacy
(3) Charles Freed’s model: You should treat your client as your friend – so if your client wants to do something bad you should exercise good judgment and not join them.
a. Generally, its unavoidable that the standard conception will come into play. You should only compromise your client’s interest in the most dire case. Before you take on a client you need to feel alright about representing him because you have obligations to him. You have free choice to decide whether to take him but once you take him he is your client.
i.1.1 says you must represent your client zealously
b. 3.8: Prosecutor is bound ethically and legally to do justice: cannot use trickery to convict D.
c. 8.4(c): Lawyer cannot engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
d. 1.2(b): Representation does not constitute an endorsement of client’s views.
i.Still, Lord Brougham’s statement is the standard conception of the advocate’s role: loyal to the client, but without judging the client.
(4) “A lawyer…I tell you the truth and you tell lies for me.” Delroy Sheriffe (bartender from Jamaica).
(5) Client “is entitled to all the special consideration within the limits of the relationship which we accord to a frien
age in conduct that the lawyer knows is criminal or fraudulent
1. 3.3: Candor to the court – this was a settlement, they were presenting it to the court; may not have been totally honest with the ct which is a problem. However, the current duty to disclose is only in regards to information that will be used in support of your position, not to information that will not be used in support of your position.
b. What could the defense atty have done?
i.Inform the client on the possibilities: 1.4: obligation to keep clients reasonably informed. 1.2: client makes the ultimate decisions regarding the case.
ii. There may be a conflict of interest – the defense atty is really representing the insurance co, though the D is still his client.
iii. Under the old 1.6(b)(1), there was a duty not to disclose this sort of confidential information. But under new 1.6(b)(1): permission to disclose information to prevent reasonably imminent death or bodily harm.
iv. No duty owed to the adversary any duty to correct his mistakes unless it is a presentation to the court, and then you have to correct things
c. Relevant rules:
i.4.1(b): shall not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a crime by a client, unless disclosure is prohibited by 1.6.
ii. 3.3: Candor to the court
iii. 1.2(a): lawyer shall abide by a client’s decision whether to settle a matter: Client has final say.
iv. 1.4: keep the client up to date; inform client of an offer
1. Cmt 1: Reasonable communication b/w the lawyer and the client is necessary for the client effectively to participate in the representation.
Cmt 2: If an offer is made, lawyer must promptly communicate that to the client.
