PROFESSIONAL RESPONSIBILITY(Morgan and Rotunda)
THE LEGAL PROFESSION: BACKGROUND AND FUNDAMENTAL ISSUES
1. What are ethics?
1. Ethics are your morals, values, knowing right from wrong which is learned over life from teachers, parents, school, etc.
2. Ethics also can be defined as limitations on how one acts in regards to societal and cultural restrictions.
Ex: a client offers to settle for a substantial amt of money. Several wks go by and no communication of the settlement offer to the client. So, you call the client and communicate the settlement. Rule 4.2 prohibits you from contacting them. Rule 1.4 requires an attorney to communicate settlement offers.
Ex: you discover 20 dollars in the door of the ATM machine. What do you do? What motivates you? What kind of person are you?
2. The Matter of Professionalism
1. The role of a lawyer as professional doesn’t necessarily require passivity, a greater willingness to compromise, or cordiality.
2. Rather, a lawyer helps people by taking on their problems, burdens, relieving their stress, and pursuing justice.
3. Characteristics of an Attorney
1. Honesty, integrity, courageousness, compassion, empathy, modesty
4. Problem 1: Achieving Justice for the Innocent Client
1. A lawyer has a responsibility to be honest and ethical in every case. And, should never falsify evidence or facts.
2. There is no justification for dishonesty.
5. Three Duties to the Client
1. Honesty – a duty to act honestly and encouragement of your client to do the same;
2. Loyalty, fiduciary duty
3. Confidentiality – ethical duty to protect and not disclose confidential communications with the client.
THE DUTY OF CONFIDENTIALITY
1. In the public interest, lawyers must preserve their client’s confidence because it inclines clients to give an honest and accurate explanation of the circumstances.
2. Clients are more willing to see legal advice when the conversation is kept private.
1. THREE DIFFERENT BODIES OF LAW COMPOSE CONFIDENTIALITY
1. The attorney-client privilege;
2. work product immunity; and
3. the professional duty of confidentiality, which derives from the obligations of trustees, agents and other fiduciaries.
2. Restatement 3rd, The Law Governing Lawyers Sec. 68
1. The attorney-client privilege protects:
1. a communication;
2. made b/n privileged persons;
3. in confidence;
4. for the purpose of obtaining or providing legal assistance for the client.
3. General Rule of Privilege
1. A client has a privilege to refuse to have disclosed confidential communications:
1. b/n himself or his representative and his lawyer or his lawyer’s representative.
2. the purpose of privilege is to promote frank communications with lawyers.
3. the privilege belongs to the client.
4. Who may claim the privilege?
1. By the client, his guardian, representative of the deceased, or the successor, trustee or similar representative of a corporation, association, or other organization.
2. An agent or employee of the attorney is bound by the same privilege as the attorney.
5. Model Code DR 4-101(a) – Preservation of
case and you cannot help the other side.
8. Information discovered from third parties
1. Any information gathered from any other source other than the client is not covered by the attorney-client privilege.
9. Losing the Privilege
1. The attorney client privilege is lost when a client negligently or intentionally reveals the information to a third-party.
2. If the communication can be overheard, the privilege can be waived.
3. Cell phones are not a secure form of communication except in California.
4. If you have two clients using the same lawyer and there is a falling out then the privilege is broken.
10. Attorney use of encrypted emails
1. An attorney’s use of encrypted email does not violate the duty of confidentiality or waive the privilege.
2. But, its not a good idea to send info regarding sensitive matters via. Always gain the client’s consent to communicate in this form.
11. Being called to testify as a lawyer
1. A lawyer cannot be subpoenaed to testify as to what the client told the lawyer and vice versa.
2. Under Code DR 4-101(c)(2), the court can order you to testify and you can do so, but more likely than not you should refuse and appeal to a higher ct. Or tell the judge you cannot reveal the information.
