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Professional Responsibility/Legal Ethics
Temple University School of Law
Morisey, Muriel

Professional Responsibility
Fall 2002
Morisey

Competing Values

Confidentiality (Duty to Client)

Candor (Duty to Tribunal)

Confidentiality (Duty to Client)

Avoid harm to others (Duty to 3rd Parties)

Zealous representation (Duty to Client)

Duty to uphold the law (Duty to Public)

Representing Corps. (Duty to Client)

Representing Corp. Officers (Duty to Client)

Conflicts of interest

Choice & availability in representation

Remember ethical violations ≠ criminal liability!!!

I. Sources of Ethical Responsibilities
A. Model Rules
1. RULE 8.4: Misconduct =
a) violate rules, knowingly or assist
b) commit crime, be untrustworthy
c) commit fraud, deceit, misrepresentation
d) prejudice the administration of justice
e) use improper influence
f) help a judge violate rules
2. RULE 5.1: Resp. of Partners, Mgrs., Supervisors
a) Make reasonable efforts to enforce rules
b) Resp. if orders or approves unethical conduct
c) Resp. for conduct of non-lawyer assistants
(1) Where conduct known
(2) Where conduct ordered
3. RULE 5.2: Subordinate Lawyers
a) Can’t say, “I was just following orders.”
B. Other Sources
1. 4th Amendment: No unreasonable search and seizure
2. 5th Amendment: No self-incrimination & Due process
3. 6th Amendment: Counsel req.’d for criminally accused
4. Restatement
5. Case Law
6. Statutes (Criminal, Tax, Securities)
C. Example: Legal Ethics Case
1. Spaulding (injured minor P) v. Zimmerman (Tortfeasor D)
a) Facts: P’s attorney’s settled without knowing about aneurysm resulting from accident. D’s attorney’s did know and did not disclose to P or Ct.
b) Rule: No rule or duty required D to disclose b/c of adversary positions. P had discovery available. D has duty not to act against client interest. BUT failure to disclose may be grounds to vacate settlement. (Lo. Ct. vacated. Affirmed. Minn. Sup. Ct.)
(1) Model Rules Analysis:
(a) 1.3 Diligence (P’s lawyers were not)
(b) 1.6 Confidentiality (D’s lawyers were)
(c) 2.1 Advisor (lawyers do more than litigate)
(d) 3.3(a)(2) Candor (D’s failed to disclose)
(e) 4.1 Truthfulness (Were D’s lawyers completely honest?)
c) Policy: Adver

assisting client in crime or fraud
3. RULE 8.4(c): Fraud is Misconduct
4. RULE 3.3: Candor [comment 3 says 1.2(d) applies in litigation] B. Prevent Obstruction [v. Zeal, 1.3 infra] 1. RULE 3.4: Fairness to Opposing Party (Fair competition in adversary system, also Rule 11 Civ Pro)
a) No deliberately use of impermissible matter
b) No assertion of pers. knowledge, belief, opinion
c) Intimidation and harassment
d) Trickery
e) How far for a client?
(1) Coaching witnesses
(a) Little law on the subject
(b) “detailed substantive consultations” expected
(c) suggesting actual language appropriate as long as testimony truthful and not misleading
(d) What is appropriate?
(i) Discussing lawyer role, client role
(ii) Discussing courtroom demeanor
(iii) Discussing testimony & memory
(iv) Revealing other testimony & evidence
(v) Asking to reconsider testimony
(vi) Discussing law
(vii) Reviewing context
(viii) Reviewing dox
(ix) Discussing cross
(x) Rehearsal of testimony
(xi) Suggesting choice of words (to clarify)
(xii) Do not assist false testimony