UNIT ONE – Regulation of the Legal Profession
I. History of Ethics Codes:
a. Old Codes:
i. ALA Code of Ethics (1887) – the need for lawyers didn’t flourish until after the civil war. Alabama based its codes on a series of lectures by Sharswood and the state adopted it in 1887. As the country became more industrialized, ABA took the Alabama code and adopted the Canon of ethics. Each state supreme court adopted it and so the ABA was in effect from the 1800s until 1969.
ii. Code of Prof Responsibility (ABA 1969) – Old Code
1. Consisted of 9 canons, or general statements.
2. Ethical Considerations (EC’s) – under each canon was an EC which were supposed to be inspirational and set high standard. Designed promote performance to the highest professional level.
3. Disciplinary Rules (DR’s) – in case you violate the rules, you would be punished. The minimal standard of ethical review, whereas the EC was the highest you could achieve.
4. Some of the rules they were trying to enforce were hard and it was confusing and from the beginning it was very hard to enforce. By 1969 they realized that this was not doing enough and so the ABA put together the code of professional responsibility
b. Modern Model Rules
i. (Kotak commission) – the old code was not working well, so the ABA put together a commission headed by chairman Kotak and produced the modern rules. All states adopted it, except CA, and most state rules are the same except for minor modifications
ii. 1983 draft – first draft
iii. 2002 draft – is what we now use. A model rule will be looked up under the 2002 draft. A year later 1.6 and 1.13 were amended by the ABA after the Enron collapse.
iv. Restatement of Law governing lawyers (ALI) – very influential and sometimes conflicts with the ABA but tends to point to future changes in the Model Rules
v. SEC’s regulations – some federal agencies are pushing for rules that must be followed outside of the Modern Rules.
c. Problem One – how to think about ethical problems
i. Problem – innocent man on trial for murder
ii. Utilitarian – greatest good for the greatest possible number; consequential people.
1. Act Utility – which behavior will lead to more happiness in a particular situation
2. Rule Utility – there is value in establishing appropriate standards of behavior for particular classes of cases.
iii. Deontological – good behavior is its own reward.
1. Duty Based– act in manner that you would have others act towards you
2. Rights Based– individuals have certain rights that lawyers should protect
d. Kohlberg’s 6 Stages of Moral Development
i. Adhere to rules
ii. “I will be good to you if you are good to me”
iii. Conform conduct to approval of others
iv. Respect for authority
v. Recognize possibility for change in society (morality of democracy)
vi. Universal ethical principles
II. Admission to the Bar
8.4 – MISCONDUCT
1. 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.
b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; d) engage in conduct that is prejudicial to the administration of justice; e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
2. Analysis of Model Rule 8.4 – it shows what the bar is interested in.
“commit a criminal act” – They will defer discipline until court finds you guilty, then disbarred. They also therefore have a legitimate interest in those that have committed criminal acts prior to applying to the bar.