Professor M. Morisey
I. I. THE RELATIONSHIP OF LAW, THE LAWYER AND ETHICS
ü The problem in professional ethics is the tension b/w the client’s preferred position resulting from the professional connection and the position of equality that everyone else is accorded by general principles of morality and legality.
ü Rules of legal ethics are not universal, b/c they give a preferred position to clients; the office of the lawyer begins with having to make distinctions among persons. A lawyer has the predisposition to treat the one who is her client with greater solicitude than she treats the other, regardless of the merits of their respective positions.
ü SPAULDING V. ZIMMERMAN: P is a 20 y/o man injured in an auto accident. D is the driver of the other vehicle and his insurance carrier. A medical exam by the D doctors discovered and aortic aneurysm, likely caused by the auto accident. D did not reveal this life threatening condition to the P, and the parties subsequently settled for an amount significantly lower than if the P knew of his medical condition.
Issue: Should the settlement be vacated based on the D failure to reveal P medical condition which resulted from the accident?
Held: The settlement should not be vacated. The D had no duty to reveal to the Ps attorney that P had a life threatening illness stemming from the accident. P lawyer had failed to use the available means of discovery to learn of condition.
Why: 1. Revealing the medical condition would have likely been against
D clients’ interests.
2. Duty of confidentiality: Rule 1.6 says that “A lawyer shall not reveal information relating to representation of a client, unless the client consents after representation, except for disclosures that are impliedly authorized in order to carry out the representation…(here, even if the driver of the auto consents (humanity), the insurance company as an institution is the real client, and they would not consult to such disclosure.
3.Also, can’t just tell the P outside of the litigation. Rule 4.2 says that a lawyer cannot communicate about the subject of the representation to the person of
q When lawyers act not as advocates, but as counselors, advisors, negotiators, ect., the law treats them very mush as it treats lay persons. The law makes an exception, however, for advocates, who act not in the real world, but in a staged world with its own sets of rules governed by he adjudicatory process.
q COMMONWEALTH V. STENHACH (shows difference b/w in-court behavior and office conduct.)
· D are PDs, representing Buchanan, charged w/ murder.
· Buchanan told D where the murder weapon was located (rifle stock).
· D recovered the rifle stock, but D did not turn over the weapon until P got a court order.
· D appeal from a conviction for hindering prosecution and evidence tampering.
Issue # 1: are the criminal statutes which prohibit hindering prosecution and tampering with evidence violative of due process as applied to criminal defense attorneys?