LEGAL PROFESSION OUTLINE • SOUTHWORTH • 2015-16
PART I. intro to the american legal profession
chapter 1. the role of the lawyer
Spaulding v. Zimmerman: Spaulding injured in auto accident. Opposing lawyer discovers Spaulding has aortic aneurysm but does not disclose. Court later vacates decision.
MR 1.4 Communication:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
MR 1.6(b)(1) Confidentiality of Information: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary…to prevent reasonably certain death or substantial bodily harm
MR 2.1 Advisor: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Lawyers as Professionals: Some Moral Issues (Wasserstrom)
Critique of separation of morality from professional responsibility.
L’s are too quick to identify with client interests, push too hard for them and become too callous to moral issues through their role. (alludes to L’s in Watergate)
Amoral technician: person who uses his unique skills and knowledge to achieve his client’s interest with no moral content attributable to him
chapter 2. The american legal profession: An overview
What is a Profession? (Freidson)
An occupation with privileges justified by these assumptions:
Substantial intellectual training and use of complex judgment are required
Clients cannot evaluate the quality of service, requiring relationship of trust
The practitioner subordinates self-interest to client’s interest and the public good
Occupation is self-regulating.
A History of American Law, (Friedman)
Early English origins: Lawyers emerged as distinct from clergy, and constituted a relatively narrow and elite segment of society.
19th century America
Less narrow and elitist than English bar
Lawyers’ role in governance and statecraft
Lawyers’ success in resisting regulation and claiming broad occupational boundaries
Racial and ethnic exclusion were bound up with rhetoric about professionalism
20th century America
Expansion of government during Progressive and New Deal eras expanded need for and opportunities of lawyers
Segmentation on race, class, and other lines: overwhelmingly white and male through 1970s.
Relatively open and entrepreneurial legal profession – reason why it is hard to define the legal profession (unlike legal profession in other countries)
The American Legal Profession, (Gordon)
Rise of bar associations, corporate bar efforts to promote professionalism against immigrant groups.
Success of corporate law firms is recognized as “elite” of the profession
Professional responsibility to make rules against the new immigrant groups (anti-solicitation and advertising).
Struggle over control of occupational boundaries
Efforts to restrict entry, intertwined with rhetoric about declining professionalism
Stratification within the profession
Consistent growth until very recently
Chicago Lawyers I (Heinz & Lauman)
Shift toward “Two hemispheres”
Corporate law firms (graduates from Northwester, Harvard, Chicago); vs.
Those who served individuals and served as prosecutors and defenders (DePaul, Loyola John Marshall)
Those from non-elite backgrounds could not gain access to “corporate hemisphere”
Chicago Lawyers II (Heinz & Lauman)
Changes: Much larger profession than in 1995. Even if numbers still skewed, corporate law firms were open to high achievers from non-elite law schools.
Corporate client fields grew faster than those serving individual clients and small businesses.
Not change: structure of prestige, stratification and hierarchy
After the J.D. (national study) (current)
Hierarchy and inequality still exist (issues in gender, ethnicity, and race)
Move out of corporate law firms after lawyers start → most to in-house and also out-of-law practice (19%)
Lawyer satisfaction remains quite high, although opportunities are not uniform across hemispheres.
Chapter 3. the Lawyer’s Role: the amoral conception & its critics
Law on Lawyers Role
MR 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Notes: Requires lawyers to prepare, despite how they may feel morally about a client/ his or her prerogative.
MR 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: A lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.
Preamble para.5: A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it…
Comment: The lawyer is “not bound to press for every advantage t
16(d): Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as…
Note: 1.16 allows withdrawal from any matter in which “a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent,” and it allows withdrawal even if the client’s interests will be adversely affected thereby.
chapter 4. expressions of self in lawyering
Should Personal Identity Influence Prof. Identity?
Beyond “Bleached Out” Professionalism, Wilkins
“Professional identity based on the norms and practices of the lawyer’s craft should ‘subsume all other aspects of a lawyer’s identity – gender, race, ethnicity, religion – and become the sole legitimate basis for actions undertaken within the confines of the lawyer’s professional role.’”
Professional self that take over all other aspects of diversity) → identity should not matter in how you do your work
Ignoring differences doesn’t work
Identity consciousness has played positive roles for clients, lawyers and legal systems.
How does Personal Identity Influence Prof. Identity?
Personal Identity as a source of inspiration in prof. life
How should lawyers’ religious views influence their professional work?
Religion as alternative framework
part II. the attorney-client relationship
chapter 5. starting and ending the Attorney-Client Relationship
Starting the Attorney-Client Relationship
Usually by written or oral “retainer” agreement specifying scope and duration of representation.
Exception: some lawyer duties (e.g., confidentiality) can be triggered without explicit agreement when client reasonably understands lawyer to have undertaken responsibilities to client.
MR 5.4(c) Professional Independence of a Lawyer: When a lawyer is paid by one person to represent another, the person represented by the lawyer is the lawyer’s client, and the lawyer may not allow the person who pays the fees to direct or influence the lawyer’s performance of duties on behalf of the client.
Who Calls the Shots?
What Factors Influence Attorney-Client Interactions?
Type of work and range of alternative strategies
Whether the client “one time” or a “repeat player”
Lawyer’s values and reputational concerns.