CHAPTER 1 – “Ethics” and “Legal Ethics”
· 83,225 lawyers in NJ as of Sept 2005
40% are practicing in NJ
44% are also admitted in NY
20% are also admitted in PA
· Each state is free to adopt their own set of rules.
· RPC 6.1 – A lawyer should aspire to render at least 50 hours of pro bono work per year
· Legal Ethics in a Nutshell: Charge a fare fee, agreement has to be in writing, work hard, keep client informed of case, fiercely loyal to client’s interest, treat all with civility, honesty, and respect.
v Primary reason for discipline is to protect the public and not to punish the attorney.
· Legal Ethics: The rules that lawyers and judges have devised to govern their own conduct in their professional relationship with others and among themselves.
Some regulate the more mundane aspects of being a lawyer
Most rules are highly ambiguous.
When there is no rule then you look at the broader definition of ethics
Ethics: The study of the general nature or morals and specific moral choices to be made by individuals
· Utilitarianism: There are various philosophies that incorporate this notion
Greatest Happiness Principle: An existence that is as far as possible from pain and as rich as possible in enjoyments. Hedonistic.
Actions are to be judged right or wrong solely in virtue of their consequences.
In assessing consequences the only thing that matters is the amount of happiness or unhappiness caused.
In calculating happiness over unhappiness, no one’s happiness is to be counted as more important than anyone else’s.
Problems with the notion that consequences are all that matter:
Justice: Lie to quell the riots and have an innocent person convicted?
Right: Pleasure of viewing photos taken without subject knowing? People have rights that can’t be trampled on just because one anticipates happy result.
Backward-Looking Reasons: Promising a buddy to do something vs. staying home and studying? Utilitarianism looks only to future consequences.
Although one may think that they are bringing about the best consequences, one can by no means be certain of it.
A Rule-Utilitarian (as opposed to an Act-Utilitarian) always asks “What general rules of conduct tend to promote the greatest happiness?”
The Golden Rule: To do as you would be done by, and to love your neighbors as yourself.
The basis for most religions.
Kant’s Categorical Imperative: Act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as a means only.
Sets to provide a set of principles of obligation that can be used as starting points for moral reasoning in actual contents of action.
Kant says that we should not try to find out whether it would produce more happiness than other available acts.
We should see if the act uses others a mere means.
Maxims of deception, coercion are wrong.
In addition to acting justly we must also lend support to others because human are not ideal rational calculators.
CHAPTER 2 – Sources and Application of Legal Ethics Rules
(ABA rule 5.5 and 8.1-8.5)
RPC 8.1 – Bar admission and disciplinary matters for applicants and lawyers
– An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
RPC 8.2 – Judicial and Legal Officials(appropriate behavior towards judges and candidates for judgeship)
– (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
RPC 8.3 – reporting professional misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance
pect for the law, respect for rights of others.
Difficulty arises when there is dishonesty on the bar application, recent criminal conduct, and fraud or other financial misdeeds.
In Re DeBartolo: Committee didn’t certify D’s character and fitness. Application contained inaccurate information about which high school he attended and omitted a number of residences. Also incurred 200-400 parking tickets and falsely misrepresented a police officer.
Applicants must show good moral character and general fitness to practice law.
Decisions of court emphasize candor and completeness in filling out application. Failure to answer fully states a lack of concern for the truth and frustrates examination committee.
· In the matter of the application of Mathews – Facts: While in law school D was involved in a fraudulent investment scheme. D claimed that he didn’t know anything about it. The court says that D failed to conduct a cursory investigation of the transactions and didn’t file tax returns and say this demonstrates lack of fitness to practice. RULE: Where evidence convincingly demonstrates reform and rehabilitation, it can overcome the adverse inference of unfitness arising from past misconduct and, if persuasive, present fitness may be found.
Committee on Character, appeal to Hearing Panel of the Committee on Character, then to Supreme Court of NJ
D asserts that Supreme Court only has jurisdiction if Committee denied certification. NJ Const. give Supreme Court jurisdiction
Shaw – Unless evidence of unfitness is clear and convincing any lingering doubts can be resolved in D’s favor while practicing.
Extremely damning misconduct may be impossible to come back from.
Look if past conduct is renunciated.
Paying back taxes and making right with those wronged isn’t enough.
Needs positive acts that demonstrafte he can act honestly and truthfully in dealing with others.
v what is the period of time needed to show rehabilitation? What ever it is going to take, it’s a case by case basis.