Professional Responsibility
McGraw – Fall 2007
I. Lawyers, Role, and Law
A. Lawyers Roles
Instrumental
Collaborative
Directive
AKA
Hired gun, plumber, puppet, prostitute, client-centered, adversarial
Wise counselor, teacher, friend, statesman, translator
Traditional, parentalist, authoritarian
Focus
Client’s rights and goals
Client’s interests within the bounds of the law
Law and the legal system, professional rights
Values
Client’s values dominate
Joint moral accountability
Lawyer’s values dominate
Philosophy
Deontological, duties to and rights of client
Respect for clients, concern for outcome as well as professional relationship
Utilitarian, greatest good results from expert legal advice
View of Law
Malleable means to pursue client’s desires
Moral norms that apply to human behavior
Means to promote social stability and order
B. Moral Reasoning
1. Otherness – understand how others view a situation; such as women or other minorities.
2. You know what is moral or you cannot listen in a moral reasoning way
C. Texas Lawyers Creed
1. How you are supposed to talk to your clients, other lawyers and judges
D. Texas Rules of Professional Conduct
1. Preamble
a. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
b. As an advisor, a lawyer provides a client with an informed understanding of the clients legal rights and obligations and explains their practical implications.
c. As an advocate, a lawyer zealously asserts the client’s position under the rule of the adversary system.
d. as a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.
e. as an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and , to a limited extent, as a spokesperson for each client.
f. an as evaluator, a lawyer examines a clients affairs and reports them to the client or to others.
2. Scope
a. The TX Disciplinary Rules of Professional Conduct are rules of reason.
b. They define power proper conduct for purposes of professional disciplines.
c. The rules are imperatives, cast in the terms “shall” or “shall not”. Comments are case often in the terms of “may” or “should” and are permissive, defining areas in which the lawyer has professional discretion. When a lawyer exercises such discretion, whether by acting or by not acting, no disciplinary action may be taken.
d. Read the remainder rules, also need to know penalties.
e. The rules are not intended to govern or affect, judicial application of either the attorney-client or work product privilege.
f. the rules do not undertake to define standards of civil liability of lawyers for professional conduct.
E. Model Rules of Professional C
y cast in the terms “may” are permissive and define areas under the rules of which lawyers have discretion to exercise professional judgment.
b. Comments do not add obligations to the rules but provide guidance for practicing in compliance with the rules.
c. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.
d. Violation of a rule should not in itself give rise to a cause of action against a lawyer nor should it create an presumption in such a case that a legal duty has been breached. Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyers violation of a rule may be evidence of breach of the applicable standard of conduct.
e. The comments are intended as guides to interpretation, but the text of the rule is authoritative.
F. Chapter 1 Problems
1-1. Should Martyn and Fox file a claim on behalf of a client after the statute of limitations has expired? No, this is a frivolous claim.
