PRO RES FALL 2010
Chapter 1: The Philosophy of Lawyering
1. Lawyer as client fiduciaryà lawyer as officer of the courtàlawyer as individual with personal values.
a. These are often in tension; resulting in the more difficult problems of professional conduct. Resolving this tension requires a “philosophy of lawyering.”
b. Difficulty arises in reconciling all of these roles of lawyering
2. Lawyer as Client Fiduciary
a. Special obligation to protect interest of client. Often thought to involve the following special duties:
i. Competence
ii. Loyalty
iii. Confidentiality
b. Zealously stand up for your client; you do stuff you wouldn’t otherwise do outside your role of lawyer to client. Example using opponents misunderstanding in favor for your client in negotiations; or using statute of frauds to get your client out of paying debts
c. Thus if you are going to critique this approach; how do you do it? What values are getting lost? The norm/general theory of lawyering is that it is all about the client; whatever the client wants to do you use any means available short of violating disciplinary rules to push for that result.
d. Institutional values exist to play your part properly in the system; must always be in pursuit of justice. The critique/caveat is thus that one may lose track of clients interest/personal interest in following the institutional values. If you don’t like the goals the client wants you to pursue; you have no obligation to take them on as a client. But once u take them on as a client; this means that you probably have to disregard your own personal moral codes. Your role as a lawyer requires you to abide by this.
3. Lawyer as Officer of the Court
a. Imposes limits on use of improper means of advocacy
b. Imposes limits on the pursuit of frivolous claims
4. Lawyer as Individual w/Interest
a. Lawyer as individual w/sense of morality
b. Lawyer as individual w/personal interests
i. Pursuing the practice of law
ii. Making a living
iii. Being respected in the profession and the community
5. In Re Pautler:
a. Situation where there was a triple murder; and the police were able to contact him.The killer wanted a lawyer present as her surrendered. The Attny Pautler pretended to be a PD in order to try and act like he was the murderers lawyer and persuade him to turn himself in. This wasn’t revealed to the criminal until later.
i. This case reveals how the various interests of lawyering often clash. Interests of court, interests of client, interests of themselves.
ii. Disciplinary Proceeding: What did Pautler do wrong?
1. He acted like a PD bc he didn’t trust the actual PD to get the criminal to turn himself in.
2. Pautler was a peace officer AND a lawyer though; what does this mean? What motivations did he have/what interests was he serving?
a. Since he worked for the DA, he had an interest in bringing the criminal in and he acted under these motivations. He also was interested because of personal reasons; i.e. this was a gruesome crime and he wanted to get the criminal taken in asap. He was working for the state so those motivations were obvious.
b. He was thus serving various interests; lawyer/peace officer/personal.
b. Rule 8.4 (c):It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
i. What is Courts View of purpose of this section?: Court says that his obligation as an attorney trumped all the rest of the interests. It is professional misconduct to engage in an act which constitutes…misrepresentation.
1. Courts view that the role of a lawyer as an officer of the court entails duties that outweigh other interests; i.e. the fact that the attny wanted to get the guy behind bars etc. because he was a violent criminal.
ii. What might justify this rule?
1. This would not protect the overall policy basis of ethical lawyering; i.e. professional conduct would not be maintained. Disrepute would be brought on to the entire legal system If they ruled the other way.
c. Pautler’s Arguments: court dismisses the argument that he was acting in his own interests as a peace officer.
i. The next argument he makes is that he acted in order to prevent imminent harm to society. He used the case Ex: there was a criminal w/gun to head of hostage and the only way to get him to let hostage go was to lie and say the guy wouldn’t get prosecuted for kidnapping. This was perceived as a situation where imminent harm to society was present.
1. However; court says that there was no immediate threat and that Pautler had alternatives; I.e. he really could have contacted a PD and the reason he didn’t was in order to serve motives of the DA office.
Rule 4.3: Dealing with Unrepresented Person.
In dealing on behalf of a client with a person who doesn’t have counsel; a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall not make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to unrepresented person other than the advice to secure counsel; if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonably possibility of being in conflict with the interests of the client.
ii. The court only ends up giving the guy probation w/stay on sanction; and this might be viewed as a “slap on the wrist”; however; maybe the whole thing of going thru this disciplinary proceeding and dealing with sanction would have large effect on the reputation etc. of the attorney.
d. Problems:
i. Why do you think he did it?
ii. What did the court think was Paulter’s most important obligation?
iii. Any general lessons we might take away from this?
iv. Could Paulter have suggested that a police officer impersonate the attorney?
v. What should Paulter do if the police come up with this scheme on their own?
e. Rule 8.4(a) : It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . .
1. Would it be misconduct if he asked another person on the scene/officer etc to impersonate a PD?
a. Rule 8.4: suggestion would be seen as aiding in misrepresentation
6. Sources of Law:
a. Who establishes the rules of professional conduct in most states?
b. Role of ABA and Model Rules
i. Binding only when adopted by state bar etc.
c. Compare w/ the Texas Disciplinary Rules of Professional Conduct
d. Ethics Advisory Opinions
e. Rules for Specialized area of Practice
f. Court decisions
i. Disciplinary
ii. Malpractice
iii. Disqualification
1. i.e. lawyer A cant represent client A b/c they previously counseled client B (and they are in litigation together)
iv. Sanctions
v. Criminal
g. Statutes- the federal government may be taking a greater role in regulating the legal profession
i. Federal level: federal government is trying to regulate legal practice to an increasing degree.
ii. DOE/Federal Trade Commission
iii. Sardanes Oxley- securities and exchange commission disclosure laws
7. Moral Accountability
a. What is the issue of moral accountability debated by freedman and tiger?
b. What exactly is their justification?
i. What is freedman’s posi
ect to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Comment 3: The lawyer’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this rule.
1) The Standard Response to “Why Defend the Guilty”: You don’t know that the defendant is guilty. That determination is for the judge and jury.
i) Not really an answer to the question of why you should defend the party.
(1) Also evasive because what do you do if in fact you know?
(2) Indeed is it not your job to know?
ii) What are possible justifications to this question?
(1) Everyone has a constitutional right; innocent until proven guilty/6th amendment; human dignity of defendant
(2) There is always a possibility of innocence.
(3) Protection of the rights of others (everyone deserves equal protection of rights under the law and providing them to all makes sure they are equally available to all)
(a) Checks and balances- forces government/prosecution to uphold the level of burden of proof etc.
(4) Moral teaching
(5) Mitigating factors- people can be guilty of various crimes on various levels; they should be able to prove/provide any mitigating factors which could lessen punishment/change the crime which they are convicted of subsequently
(6) Horrors of Prison/Recidivism- there needs to be a check on putting people into the prison system because individuals will become worse rather than rehabilitated
iii) Page 78: Innocence Issue (possibility of innocence) is critical; because à
(1) Bad science exists, not always cut and dry.
(2) Police procedures are often flawed.
(a) Government misconduct/police and the prosecutors
