Professional Responsibility Outline
The 5 Key Features of Attorney Ethics
Prohibitions against perjury
Prohibitions against attorney assistance in perjury
Prohibitions against attorney misrepresentations to the tribunal
Premised on impartiality of the tribunal
Equality of the parties
i. Decision makers cannot have a stake in the outcome
ii. Limitations on relationships between parties and decision makers
Part of the definition of a “profession”
Recognized in numerous historical anomalies
All modern ethical codes refer to the need for attorney “independence”
Implicit in the nature of representation
Recognized since the emergence of the advocate in ancient Rome and Greece
Recognized as essential to performing role as an advocate
Wasserstrom’s Article, p. 2 –11 R. C. 1
– Lawyer is both amoral and immoral
– Lawyer-client relationship is morally objectionable b/c the lawyer dominates and treats the client in both an impersonal and paternatlistic fashion
– Role-differentiated behavior: makes it both appropriate and desirable for the person in a particular role to put to one side considerations of various sorts that would otherwise be relevant if not decisive
– Role of the professional is to prefer the interests of the client over those of the individual
o Ex: attorney will do things that an ordinary person won’t do, renders irrelevant what would otherwise be morally relevant considerations
– Wants lawyers to be less role-differentiated and more moral: it isn’t necessarily good for a lawyer to try to win every case or lawsuit
Model Rule 1.1: Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Model Rule 2.1: Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Model Rule 1.6: Confidentiality of Information
– (a): A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
– (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
o 1. to prevent reasonably certain death or substantial bodily harm;
o 2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
o 3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
o 4. to secure legal advice about the lawyer’s compliance with these Rules;
o 5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charg
– Rule 1.6 also applies to attorneys for the government
o The client is the government
o Therefore, a government lawyer may not assert the government attorney-client privilege against the government, because the government lawyer works for the government as an incorporeal entity.
o The government attorney can still assert the attorney-client privilege as against third parties.
o In re Lindsey: Whether an attorney in the office of the President can assert the attorney-client privilege before a grand jury and on that basis refuse to testify about possible criminal conduct?
§ Cannot refuse to testify under the government attorney-client privilege when it comes to criminal liability because asserting a privilege on behalf of the government against the government
§ May be able to refuse to testify about matters protected by executive privilege
§ Can refuse to testify under personal attorney-client privilege if the attorney is acting as an “intermediary” (not when consulting private counsel about litigation strategy)
§ Cannot refuse to testify under the “Common Interest Doctrine” (Covers instances in which the President and his private counsel conferred with the government attorney about matters in which the President in his personal capacity had an overlapping concern with the government attorney’s client)
§ If you’re an attorney for a government entity and you function in other governmental capacities, it can waive attorney-client privilege