Professor Erbes Legal Profession Outline Summer 2010
I. Theories of Ethics Rules
A. Client is the center of the universe
1. Protect the client
2. Honor the client’s autonomy
3. Lawyers must defer to client’s objectives as long as lawful
B. Lawyers and the profession require autonomy
1. Lawyers are not mere technicians
2. The lawyer and legal system have obligations (to court, procedures, rules)
C. Bad Client Problem
1. The rules must protect the legal system from “bad client” (a bad client is one who wants to use lawyers to commit fraud or crimes)
D. Tempted Lawyer Problem
1. The rules must forbid lawyers to betray their clients (if significant risk that lawyer’s conflicting interests, clients will not trust lawyers)
E. Poor Lawyer Problem
1. Not all lawyers are above aveage
2. System for redress and compensation
F. Justice and Fairness
1. Lawyers are intermediaries between rules and reality
2. Lawyers are required to implement justice and fairness – they must exist in reality
G. Professional Conspiracy
1. The rules must serve a purpose to the bar
H. In Service of Others
1. The rules must implement the values they propound.
II. Who makes ethical Rules
1. US Constitution
1) 1st Amendment – Free Speech
2) 6th Amendment – Right to Counsel
3) 14th Amendment – Due Process, Equal Protection, Privileges and Immunities
4) 5th Amendment – Takings Clause
2. Bar Associations – ABA & State (The model rules don’t have to be followed by anybody and most bars are voluntary)
1) ABA is a private organization of lawyers
2) Self – Regulating
3) Model means nothing unless adopted
i. State bars
ii. State Courts
4) ABA Canons of Professional Ethics – 1908
5) ABA Code of Professional Responsibility – 1970 (Canons (Black Letter), Ethical Considerations & Disciplinary Rules)
6) ABA Model Rules of Professional Conduct – 1983
7) Ethics 2000 – created the current ABA Model Rules of Professional Conduct – Adopted in 2002.
3. Legislatures (makes laws and ethical rules)
1) Illinois Rules
i. Illinois has historically deviated to some extent from the ABA model rules
ii. Illinois Ethics
1. The Model Rules are the de fact national standard for ethics
4. The courts (the courts interpret the rules, making them law)
1. What is it?
2. How does it differ from the Rules? Rule is the floor for conduct, professionalism is higher.
3. Why should we strive for it?
4. How do we attain it?
IV. Preamble to the Rules
1. What are the major themes? (Preambles are not rules, they are aspirations)
i. Member of a profession
ii. Serve clients, legal profession and public
iii.  self regulated
V. Attorney – Client Relationship
1. When is there a client?
i. By agreement – which may be implied
ii. When a person manifests an intent that the lawyer provide legal services to them and the lawyer fails to manifest a lack of consent or intent to do so
iii. May also occur when representation is declined (Statute of limitations)
iv. Money is not the key
v. Confiding about your legal problems to a friend who happens to be a lawyer will not by itself create an attorney-client relationship.
VI. What Lawyers Owe Clients
1. Competence – Rule 1.1
i. Refer the case to a competent attorney and work with them
2. Confidentiality – Rule 1.6
i. Difference between confidentiality which comes from professional conduct and agency law and privilege which is an evidentiary rule. Lawyer is the agent, the client is the principal.
VII. Rule: 1.13: p. 42; The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.
VIII. Restatement of Law
1) Defines “organizational client” broadly
2) Communication is privileged if between an agent of the organization and a lawyer (or agent of) and it concerns a legal matter of interest to the organization
IX. Five possibilities for Organizational Clients (regarding privilege, it depends
SEC’s complaint and the clients then got default judgment against them. Because McNulty was sophisticated, they also were at fault.
2. Clients and Settlements
i. It is the clients right to decide whether to settle
ii. Clients may delegate this authority
iii. Authority under Agency. Actual or Inherent (Implied) also Apparent Authority – no actual authority but still upheld because the client done something to lead the 3rd party to think there is authority
XIV. Agency Issues
1. Vicarious Admission
i. A statement by the lawyer that binds the client
2. Lawyer’s opening statement in an earlier mistrial used against the client in a lataer trial – US v. McKeon. Inconsistent pleadings may also be used as evidence or for impeachment.
XV. Fiduciary Duty
1. Duty of honest, loyalty, trust and diligence. “Unique position of trust and confidence”
2. Duty of loyalty
3. Failure to act diligently
4. ARDC Records [Illinois attorney registration and disciplinary commission
Nichols v. Keller: Worker’s compensation case where lawyer didn’t tell client could have had a 3rd party claim by someone else. Part of his fiduciary duty meant needing to know the rest of the case.
XVI. Autonomy of clients and Lawyers – Rule 1.2
1. Lawyers are agents, but have particular knowledge and also havd professional obligations
2. Client has the right to decide whether to settle a case. In a criminal case it is the client’s decision to enter a plea, waive a jury and to testify.
3. Client has the right to authorize the lawyer to take specific action and the lawyer need not get continued authorization.
4. Lawyers have to make ongoing strategy decisions without the need to get specific authority
5. The more a client is consulted the more satisfied they are likely to be.
XVII. Rule 10
Jones v. Barnes: A lawyer can make a judgment about what issues